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R v Lieske

R v Lieske

Case [2006] ACTSC 97 4 October 2006

Criminal Liability

Admissibility of Evidence

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THE QUEEN v ANDREW RAYMOND LIESKE [2006] ACTSC 97 (4 October 2006)

EVIDENCE – pretext telephone call from police station by complainant to accused – listening device operated by complainant – whether warrant required under s 12F Australian Federal Police Act 1979 (ACT).
EVIDENCE – confessions and admissions – secretly recorded telephone conversation – reliability of admissions said to be obtained – relationship of complainant questioner and accused – nature of questions asked – s 85 Evidence Act1995 (Cth).
EVIDENCE – confessions and admissions – secretly recorded telephone conversation – right to silence not exercised – circumstances of unfairness – s 90 Evidence Act1995 (Cth).
EVIDENCE – listening devices – warrant obtained under s 12G Australian Federal Police Act 1979 (ACT) – offence not one for which warrant could be issued – not a class 2 offence involving serious injury or serious risk of serious injury – warrant required in respect of general offence inquiries s 12F Australian Federal Police Act 1979 (ACT).
EVIDENCE – listening device warrant not valid – admissibility of recorded conversation – matters to be taken into account – s 138 Evidence Act1995 (Cth).

Evidence Act 1995 (Cth), s 66 , 85, s 90, s 137, s 138

Telecommunications (Interception) Act 1979 (Cth)
Listening Devices Act 1992 (ACT), s 4
Australian Federal Police Act 1979 (Cth), s 12
Surveillance Devices Act 2004 (Cth)
Crimes Act 1900 (ACT), s 53

R v Oliver (1984) 57 ALR 543
R v Giacco & Another (1997) 68 SASR 484
R v Workman (2004) 60 NSWLR 471
Medina v The Queen (1995) 126 FLR 368
Barker v R (1994) 127 ALR 280
R v Truong (1996) 86 A Crim R 188 at 191

Duarte v The Queen (1990) 53 CCC (3d) 1

R v Burt [2000] 1 Qd R 28
R v Dixon and Smith (1992) 28 NSWLR 215
Petty v The Queen (1991) 173 CLR 95
R v Swaffield; Pavic v R (1998) 192 CLR 159
R v Broyles [1991] 3 SCR 595
R v M (2002) 135 A Crim R 324
R v Peter Van Doorn [2004] VSCA 65, unreported, 14 May 2004 BC 2004 02 730
R v B [2005] QCA 106
Ousley v R (1997) 192 CLR 69
Commissioner ofPolice v Barbaro (2001) 51 NSWLR 419
Bunning v Cross (1978) 141 CLR 54

Supplementary Explanatory Memorandum to the Law and Justice Legislation Amendment Bill 1989
International Covenant on Civil and Political Rights, Article 17
New South Wales Law Reform Commission, Report 89, 2001, “Surveillance: an Interim Report”

Palmer A “Guilt and the Consciousness of Guilt: the use of lies, flights and other ‘guilty behaviour’ in the investigation and prosecution of crime” (1997) 21 MULR 95

No. SCC 139 of 2004

Judge: Gray J
Supreme Court of the ACT

Date: 4 October 2006

IN THE SUPREME COURT OF THE       )
  )          No. SCC 139 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
ANDREW RAYMOND LIESKE

RULING

Judge: Gray J
Date: 4 October…

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 Lieske

Details

AGLC: R v Lieske [2006] ACTSC 97
Case: [2006] ACTSC 97
Decision Date

CaseChat Overview and Summary

In this pre-trial application, the accused, Andrew Raymond Lieske, seeks a ruling to exclude two covertly recorded conversations between himself and the complainant from being admitted as evidence in his trial. The first conversation, on 23 August 2003, took place by way of a telephone call that the complainant initiated from a police station, adopting a procedure which was said to be used by the Queensland police and held to be lawful in that State (the pretext conversation). The second conversation, on 10 December 2003, was transmitted by a listening device worn by the complainant and monitored by police officers on the occasion of a meeting that took place between the complainant and the accused at Tilley’s café, Lyneham (the Tilley’s conversation). At no time prior to either conversation did the accused know that the complainant’s allegations were the subject of police investigation. It was not until after the Tilley’s conversation that the accused was arrested and charged with the offences.

The prosecution wishes to rely upon these conversations as evidence of what are said to be ‘partial’ admissions made by the accused to the complainant. The accused argues that the conversations were obtained improperly and in contravention of various statutes and thus should not be admitted as evidence.

The court held that the evidence of the telephone conversation that took place between the complainant and the accused on 23 August 2003 is not admissible. The court found that the circumstances surrounding the conversation were such as to make it unlikely that the truth of the admission was adversely affected. The court also found that it would be unfair to the accused to use the evidence of the pretext conversation, as it was obtained in a manner that circumvented the accused's right to silence and the procedural safeguards afforded by a formal interview. The evidence of the conversation that took place between the complainant and the accused on 10 December 2003 should not be admitted as it was obtained unlawfully and its probative value is outweighed by the undesirability of admitting evidence that was obtained in the way in which the evidence was obtained. The court held that the evidence of the Tilley’s conversation should not be admitted.

The court ruled that the evidence of the telephone conversation that took place between the complainant and the accused on 23 August 2003 is not admissible. The evidence of the conversation that took place between the complainant and the accused on 10 December 2003 should not be admitted.

Orders