R v LDV (No. 2) - [2013] NSWDC 215

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v LDV (No. 2) [2013] NSWDC 215
Hearing dates: 10 October 2012; 11 October 2012; 19 October 2012; 15 February 2013; and, 16 May 2013;
Decision date: 16 May 2013
Before: Colefax SC DCJ
Decision:
Order pursuant to sections 90, 135(a) and 137 of the Evidence Act, individually and in combination with s 3 of the Surveillance Devices Act, that the evidence of the three phone calls be not admitted into evidence at trial.

Catchwords: Surveillance Device Warrant - pretext phone calls recorded pursuant to warrant - Surveillance Devices Act legislative background - issuing of warrant by Supreme Court Judge not a judicial function - District Court retains power to determine validity of warrant in the context of determining admissibility of any evidence obtained purportedly in compliance with the warrant - whether evidence obtained relevant - whether warrant defective on its face - whether warrant inadmissibly broad - whether surveillance devices incorrectly (unlawfully) installed - whether pretext calls impermissibly designed to deprive accused of his right to silence - tender of pretext calls rejected - pre-trial hearing - restricted access order dissolved - stay of operation of dissolution of restricted access order
Legislation Cited: Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and, Criminal Procedure Act 1986
Cases Cited: Ousley v The Queen (1997) 192 CLR 69; Kable v NSW (2013) 293 ALR 79; Edwards v The Queen (1993) 178 CLR 193; Commissioner of Police v Barbaro [2001] NSW CCA 57; MacGibbon v Warner (1997) 98 A Crim R 450; Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCCA 112
Texts Cited: Second Reading Speech - Surveillance Devices Bill 2007 (14 November 2007); Report on Cross-Border Investigative Powers for Law Enforcement
Category: Interlocutory applications
Parties: Regina (Crown) LDV (Accused)
Representation: Crown: Mr. M. Fox of Counsel Accused: Mr. S. Corish of Counsel

File Number(s): 2011/41540
Publication restriction: The name of the complainant (MM); her parents (CM and MO); the accused's son (SD); and, any other matter which could identify those persons (Mr G).

Judgment

On 10 October 2012 LDV was arraigned upon an indictment which contained three counts. In essence, those counts alleged that on 12 December 2011, in quick succession, LDV committed three assaults and related acts of indecency upon MM who was, at the time, fifteen years of age.

To each count LDV pleaded not guilty.

The names of MM, her parents (CM and MO) and any other matter which could identify her are, and remain, the subject of a non publication order.

Following the arraignment of LDV, I undertook the hearing of two interlocutory applications. The history of those applications was set out by me in some detail in a judgment I delivered on 15 February 2013. It is unnecessary therefore to repeat that history - which I incorporate by reference. Suffice to say, this present judgment is…

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 LDV (No. 2)

Details

AGLC: R v LDV (No. 2) [2013] NSWDC 215
Case: [2013] NSWDC 215
Decision Date: 16 May 2013

CaseChat Overview and Summary

In the matter of the Crown versus LDV, the applicant sought to exclude certain evidence obtained through pretext phone calls made in accordance with a surveillance device warrant. The case was heard in the District Court of New South Wales. The applicant argued that the evidence should not be admitted on several grounds, including that the evidence was irrelevant, the warrant was defective, the surveillance devices were unlawfully installed, and the pretext calls were designed to deprive the accused of their right to silence.

The court addressed the question of whether it had the power to rule on the validity of a warrant issued by a judge of the Supreme Court. The court found that while the issuing of such a warrant was an administrative power, the District Court retained the power to determine the validity of the warrant in the context of determining the admissibility of any evidence obtained in compliance with the warrant.

In considering the merits of the application, the court found that the evidence of the three phone calls was relevant as it contained admissions as to the accused's location in the house at the time of the alleged offences and was evidence of a consciousness of guilt. The court rejected the submission that the evidence was irrelevant as it could rationally assist a jury in determining whether the Crown could prove beyond reasonable doubt that the accused touched MM in a manner alleged in the counts in the indictment.

The court made an order pursuant to sections 90, 135(a) and 137 of the Evidence Act, individually and in combination with s 3 of the Surveillance Devices Act, that the evidence of the three phone calls be not admitted into evidence at trial. The court also dissolved a restricted access order and stayed the operation of the dissolution of the restricted access order.

Orders

Orders of the court

Order pursuant to sections 90, 135(a) and 137 of the Evidence Act, individually and in combination with s 3 of the Surveillance Devices Act, that the evidence of the three phone calls be not admitted into evidence at trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In this application, Mr Corish of counsel who appears for LDV, variously called in aid sections 90, 135(a), 137 and 138 of the Evidence Act individually, or in combination with s 3 of the Surveillance Devices Act, to submit that the three pretext calls should not be admitted into evidence. The following five bases for that ultimate submission were advanced. First, the evidence is not relevant. Secondly, the warrant is defective on its face. Thirdly, the warrant was impermissibly broad. Fourthly, the surveillance devices were incorrectly (and therefore unlawfully) installed. Fifthly, the calls were impermissibly designed to deprive the accused of his right to silence. I shall consider each of these matters separately. Before doing so, I should briefly address the question of whether, in the context of the present application and in particular, the second, third and fifth bases referred to by MrCorish, a judge of this court can rule upon the validity of a warrant issued under the Surveillance Devices Act by a judge of the Supreme Court. The issuing of such a warrant is not a judicial function, but rather an administrative power vested in a judicial officer, unconnected with any judicial function: see Ousley v The Queen (1997) 192 CLR 69 at 100 to 101 per McHugh J; and Kable v NSW (2013) 293 ALR 79 at para 3 per Allsop P. Those cases are authority for the proposition that the fact that the instant warrant was issued by a judge of the Supreme Court does not preclude a judge of this court determining whether there has been an error in the issuing of the warrant, in the context of determining the admissibility of any evidence obtained purportedly in compliance with the warrant. Whether or not the involvement of a judge of the Supreme Court (or any court) in the issuing of such warrants (being as they are deeply embedded in the police investigative process) as opposed to, say, a senior officer of the Crime Commission, the Attorney-General's Department or the Police Force is desirable is a matter for others to consider. First, the relevance objection. It is a fundamental proposition that evidence which is not relevant in proceedings is not admissible. Evidence is relevant in a proceeding where, if accepted, it could rationally affect (whether directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. The Crown submits that the contents of the three pretext calls are relevant in two respects. First, because they contain admissions as to where the accused was in the house at the time of the alleged offences. Secondly, because they are evidence of a consciousness of guilt. As to the first aspect, Mr Corish submits that it is unremarkable that Mr LDV should be somewhere within his own house. That fact therefore could not rationally assist a jury to determine whether the Crown can prove beyond reasonable doubt that LDV touched MM in a manner alleged in the counts in the indictment. With respect to the submission, it misses the point. A jury might well be assisted in hearing evidence as to where precisely within the house, on this night, LDV was.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v LDV (No. 2) [2013] NSWDC 215
Hearing dates:	10 October 2012; 11 October 2012; 19 October 2012; 15 February 2013; and, 16 May 2013;
Decision date:	16 May 2013
Before:	Colefax SC DCJ
Decision:	Order pursuant to sections 90, 135(a) and 137 of the Evidence Act, individually and in combination with s 3 of the Surveillance Devices Act, that the evidence of the three phone calls be not admitted into evidence at trial.
Catchwords:	Surveillance Device Warrant - pretext phone calls recorded pursuant to warrant - Surveillance Devices Act legislative background - issuing of warrant by Supreme Court Judge not a judicial function - District Court retains power to determine validity of warrant in the context of determining admissibility of any evidence obtained purportedly in compliance with the warrant - whether evidence obtained relevant - whether warrant defective on its face - whether warrant inadmissibly broad - whether surveillance devices incorrectly (unlawfully) installed - whether pretext calls impermissibly designed to deprive accused of his right to silence - tender of pretext calls rejected - pre-trial hearing - restricted access order dissolved - stay of operation of dissolution of restricted access order
Legislation Cited:	Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and, Criminal Procedure Act 1986
Cases Cited:	Ousley v The Queen (1997) 192 CLR 69; Kable v NSW (2013) 293 ALR 79; Edwards v The Queen (1993) 178 CLR 193; Commissioner of Police v Barbaro [2001] NSW CCA 57; MacGibbon v Warner (1997) 98 A Crim R 450; Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCCA 112
Texts Cited:	Second Reading Speech - Surveillance Devices Bill 2007 (14 November 2007); Report on Cross-Border Investigative Powers for Law Enforcement
Category:	Interlocutory applications
Parties:	Regina (Crown) LDV (Accused)
Representation:	Crown: Mr. M. Fox of Counsel Accused: Mr. S. Corish of Counsel
File Number(s):	2011/41540
Publication restriction:	The name of the complainant (MM); her parents (CM and MO); the accused's son (SD); and, any other matter which could identify those persons (Mr G).