R v Kemp, Darren - [2008] NSWDC 312

CITATION: R v Kemp, Darren [2008] NSWDC 312

HEARING DATE(S): 24/07/08
25/07/08

JUDGMENT DATE:
29 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: The tender of recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.

CATCHWORDS: Criminal law - trial - interlocutory application - exclusion of evidence of admissions - accused arrested for surreptitious questioning - listening device lawfully installed in police cells - accused placed in designated cell - undercover police operatives inveigle admissions from accused - LEPRA provisions reviewed - unlawful arrest - arrest for unlawful purpose -absent lawful arrest investigation period for questioning unavailable - distinction between 'fishing trip' and investigation - difference in focus between s.139 and s.90 Evidence Act 1995

LEGISLATION CITED: ss 90, 138 Evidence Act 1995
Part 9 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
Crimes Act 1900
Bail Act 1978

CASES CITED: Williams v The Queen (1986) 161 CLR 278 at 306 per Wilson and Dawson JJ
Cleland v The Queen
Bales v Parmeter (1935) 35 S.R. (NSW) 182 at pp188-189
Tofilau v R 238 ALR 650
Em v R 239 ALR 204
R v Broyles [1991] 3 S.C.R. 595
R v Mullah [2005] NSWSC 358
R v Swaffield 72 ALJR 339
R v Collins [1987] 1 SCR 265
v Herbert [1990] 2 SCR 151

PARTIES: Regina
Darren Michael Kemp

FILE NUMBER(S): 07/21/0242

COUNSEL: Crown: K Magnus
Counsel: J Watts

JUDGMENT

An application pursuant to S.90 Evidence Act 1995 to exclude evidence of admissions.

1. Darren Michael Kemp (the Accused) has been charged with four counts arising out of the robbery in company of a security guard of two Westpac Bank automatic teller machines (ATMs) containing nearly $680,000 of Westpac’s money. The robbery occurred at the Homebush Bay Showground during the 2005 Easter Show.

2. The theft of the ATM’s occurred on 15th March 2005. Twenty-three months later, on 19th February 2007 the accused was arrested by Dt David Willey on the direction of Dt Sgt Peter Smith. Both officers were members of Strike Force Piccadilly, formed in August 2005 to investigate a spate of thefts of ATMs via means of ram-raids, towings off mountings and other smash and grab type activities. Dt Smith and his team were in charged with investigating the Easter Show ATM thefts as one of several designated investigations falling within Strike Force Piccadilly.

3. Shortly after his arrest the accused was housed in a designated cell (cell No. 3). A listening device recorded conversations he had with two undercover police officers (Sean and James). During the course of these conversations the accused, on the Crown case admitted to substantial involvement in the heist of the ATMs. The Crown seeks to tender the recordings of those conversations. The accused objects saying that the circumstances in which the admissions were made, now make it unfair to him to use the evidence thereby obtained (s90 Evidence Act 1995).

The Circumstances in which the Admissions were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kemp, Darren

Details

AGLC: R v Kemp, Darren [2008] NSWDC 312
Case: [2008] NSWDC 312
Decision Date: 29 July 2008

CaseChat Overview and Summary

In R v Kemp, the respondent, Darren Kemp, was facing a criminal trial in the Supreme Court of New South Wales. The case centred around the admissibility of evidence obtained through an undercover operation in a police cell where Kemp had been placed. Kemp was arrested for drug-related offences and placed in a police cell equipped with a listening device. Undercover police operatives then engaged Kemp in conversation, during which he made admissions relevant to the charges against him. The defence sought to exclude this evidence, arguing that the arrest was unlawful and that the admissions were obtained in violation of Kemp's rights.

The legal issues before the court were whether the arrest of Kemp was lawful, whether the admissions obtained were admissible, and whether the process complied with relevant statutory provisions, specifically the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Evidence Act 1995 (NSW). The court needed to determine whether the police had a lawful basis for the arrest and whether the evidence obtained was admissible under the statutory provisions and the common law. The court also needed to consider the distinction between a 'fishing trip' and a bona fide investigation, as well as the interplay between s.139 and s.90 of the Evidence Act.

The Supreme Court found that Kemp's arrest was not lawful as it was made for an unlawful purpose. Given the absence of a lawful arrest, the investigation period for questioning under the LEPRA was not available, and the admissions obtained were inadmissible. The court noted that the difference in focus between s.139 and s.90 of the Evidence Act was critical. Section 139 deals with the admissibility of evidence obtained by illegal means, while s.90 provides a discretionary exclusion of evidence on the grounds of unfair obtaining. The court held that the undercover operation amounted to an unlawful interrogation, and thus the recordings of the admissions were inadmissible. Consequently, the tender of the recordings was rejected.

Orders

Orders of the court

The tender of recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kemp, Darren [2008] NSWDC 312
HEARING DATE(S):	24/07/08 25/07/08
JUDGMENT DATE:	29 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	The tender of recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.
CATCHWORDS:	Criminal law - trial - interlocutory application - exclusion of evidence of admissions - accused arrested for surreptitious questioning - listening device lawfully installed in police cells - accused placed in designated cell - undercover police operatives inveigle admissions from accused - LEPRA provisions reviewed - unlawful arrest - arrest for unlawful purpose -absent lawful arrest investigation period for questioning unavailable - distinction between 'fishing trip' and investigation - difference in focus between s.139 and s.90 Evidence Act 1995
LEGISLATION CITED:	ss 90, 138 Evidence Act 1995 Part 9 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) Crimes Act 1900 Bail Act 1978
CASES CITED:	Williams v The Queen (1986) 161 CLR 278 at 306 per Wilson and Dawson JJ Cleland v The Queen Bales v Parmeter (1935) 35 S.R. (NSW) 182 at pp188-189 Tofilau v R 238 ALR 650 Em v R 239 ALR 204 R v Broyles [1991] 3 S.C.R. 595 R v Mullah [2005] NSWSC 358 R v Swaffield 72 ALJR 339 R v Collins [1987] 1 SCR 265 v Herbert [1990] 2 SCR 151
PARTIES:	Regina Darren Michael Kemp
FILE NUMBER(S):	07/21/0242
COUNSEL:	Crown: K Magnus Counsel: J Watts