R v Ljubicic - [2017] NSWCCA 283

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ljubicic [2017] NSWCCA 283
Hearing dates: 23 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Before: Hoeben CJ at CL at [1];
Davies J [2];
Adamson J [3]
Decision:
(1) Allow the Crown appeal.
(2) Set aside the orders of Maiden DCJ refusing to admit the recorded interview (ERISP).

Catchwords:
APPEAL – Criminal Appeal Act 1912 (NSW), s 5F(3A) – whether exclusion of evidence substantially weakens Crown case – HELD – ERISP met threshold test as it was inconsistent with version given by respondent in pretext call

APPEAL – Evidence Act 1995 (NSW), s 90 – whether ERISP ought be excluded on grounds of unfairness – alleged unfairness constituted by investigating police not putting their knowledge of content of pretext call to respondent in ERISP – distinction between exclusion under ss 138 and 90
CRIMINAL LAW – no procedural fairness required of police when investigating alleged commission of criminal offence
Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5F(3A)
Criminal Procedure Act 1986 (NSW), ss 141, 142, 143, 144, 146
Evidence Act 1995 (NSW), ss 90, 138
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Listening Devices Act 1984 (NSW)

Cases Cited:
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWCA 89
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
R v DRF [2015] NSWCCA 181
R v ELD [2004] NSWCCA 219
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v GAC [2007] NSWCCA 315
The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1

Category: Principal judgment
Parties: Regina (Applicant)
Robert Ljubicic (Respondent)
Representation:
Counsel:
S Dowling SC/R Cooley (Applicant)
S Hall (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
Criminal & Law (Respondent)

File Number(s): 2016/183847
Publication restriction: Restricted
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 November 2017

Before:

Maiden DCJ

File Number(s):

2016/183847

Judgment

HOEBEN CJ at CL: I agree with the reasons of Adamson J.
DAVIES J: I agree with Adamson J.
ADAMSON J: On 21 November 2017 Maiden DCJ excluded the respondent’s Electronically Recorded Interview of a Suspected Person which was conducted on 1 December 2015 (ERISP). Later that day, the Crown appealed against the ruling pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) on the basis that it was a ruling on the admissibility of evidence which substantially weakened the Crown case.
The appeal was listed for hearing before this Court on 23 November 2017. At the conclusion of the hearing, the Court ordered that the appeal be allowed and that the order excluding the ERISP be set aside. My reasons for concurring in these orders…

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 Ljubicic

Details

AGLC: Decision restricted [2017] NSWCCA 283
Case: [2017] NSWCCA 283
Decision Date: 23 November 2017

CaseChat Overview and Summary

In the appeal, the respondent, Ljubicic, challenged his conviction for several offences related to drug trafficking, arguing that the evidence obtained from an electronic recording and intercept procedure (ERISP) should not have been admitted. The case was heard in the Court of Criminal Appeal in New South Wales. Ljubicic contended that the exclusion of this evidence substantially weakened the Crown's case and that it should have been excluded under the Evidence Act 1995 (NSW) due to unfairness. Specifically, he argued that the police had not informed him of their knowledge of the content of a pretext call during the ERISP, which he claimed breached procedural fairness.

The court was required to determine whether the exclusion of the ERISP evidence substantially weakened the Crown's case under section 5F(3A) of the Criminal Appeal Act 1912 (NSW). Additionally, the court had to decide whether the evidence should have been excluded under section 90 of the Evidence Act 1995 (NSW) on the grounds of unfairness. The court considered the distinction between exclusions under sections 138 and 90 of the Evidence Act 1995 (NSW), particularly in relation to the obligations of procedural fairness owed by police during investigations.

The court found that the ERISP met the threshold test for exclusion under section 5F(3A) as it was inconsistent with the version given by Ljubicic in a pretext call. The court also determined that the alleged unfairness did not constitute a basis for exclusion under section 90 of the Evidence Act 1995 (NSW), as the police were not required to provide procedural fairness during their investigation. The court held that there was no obligation on the police to inform Ljubicic of their knowledge of the content of the pretext call. Consequently, the appeal was dismissed, and Ljubicic's conviction was upheld.

Orders