R v LDV (No. 2)

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.