R v Lieske

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.