R v McKeough - [2003] NSWCCA 385

CITATION: Regina v Leigh Jason McKeough [2003] NSWCCA 385

HEARING DATE(S): 03/12/03

JUDGMENT DATE:
3 December 2003

JUDGMENT OF: Spigelman CJ at 48, 62; Dunford J at 1; Hidden J at 61

DECISION: Appeal allowed. Evidence of search of motor vehicle and of electronically recorded interview admissible in trial of respondent. Matter remitted to District Court for continuation of Respondent's trial.

CATCHWORDS: Criminal Law - evidence - illegally obtained evidence - discretion to admit - exercise of

LEGISLATION CITED: Crimes Act 1900 s 357E
Criminal Appeal Act 1912 s 5F
Drug Misuse and Trafficking Act 1986 s 25(1)
Evidence Act 1995 s 138

CASES CITED: Bunning v Cross (1978) 141 CLR 54
House v The King (1936) 55 CLR 499
R v Rondo [2001] NSWCCA 540, 126 A Crim R 562

PARTIES :
Regina v Leigh Jason McKeough

FILE NUMBER(S): CCA 60281/03

COUNSEL: G I O Rowling (Crown)
B Pullinger (Appellant)

SOLICITORS:
SE O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0442

LOWER COURT
JUDICIAL OFFICER : Coorey DCJ

- 12 -

60281/03

SPIGELMAN CJ
DUNFORD J
HIDDEN J

WEDNESDAY 3 DECEMBER 2003

R v LEIGH JASON McKEOUGH

Judgment

1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5F of the Criminal Appeal Act 1912 against orders made by his Honour Judge Coorey in the District Court at Sydney ruling inadmissible evidence of the finding of 27.44 grams of Methylamphetamine, two resealable plastic bags and a foil in a motor vehicle driven by the respondent, and the contents of an electronically recorded interview with the respondent following his subsequent arrest on the same day. His Honour held that the search of the respondent’s vehicle which resulted in the finding of the drugs was illegal, being not authorised by s 357E of the Crimes Act 1900, and that consequently the finding of the drugs and the admissions made by the respondent in the interview was improperly or illegally obtained evidence within the terms of s 138 of the Evidence Act 1995.

2 The trial of the respondent commenced on 14 July 2003 before his Honour sitting without a jury on the charge that, on 19 December 2002 at Narrabeen, he did supply a prohibited drug, namely, Methylamphetamine, contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1986.

3 After the respondent had pleaded not guilty, his counsel submitted that the evidence of the search and recorded interview should be excluded and his Honour heard the relevant evidence, including evidence from the respondent, on the voir dire.

4 The evidence for the Crown was that at about 3.30pm on 19 December, Detectives Arthurs and Mulheron, who were then on foot, saw the respondent, the sole occupant, driving slowly along Pittwater Road, Narrabeen in a dirty late model Holden Commodore car bearing the number plate RSX-374. On returning to their police car Detective Arthurs made inquiries which showed that the car was unregistered and uninsured, the…

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 McKeough

Details

AGLC: R v McKeough [2003] NSWCCA 385
Case: [2003] NSWCCA 385
Decision Date: 3 December 2003

CaseChat Overview and Summary

The case of R v McKeough involved a criminal trial in the Supreme Court of Victoria. The defendant, McKeough, was charged with various offences related to drug trafficking. The central issue in the case was whether evidence obtained through an unlawful search should be admitted in court. The prosecution relied heavily on the evidence obtained during this unlawful search, which McKeough's defence argued was inadmissible under the common law rule that excludes evidence obtained through illegal means.

The court was required to decide whether the discretion to admit illegally obtained evidence, as provided under common law, should be exercised in this case. This discretion allows courts to admit such evidence if it is deemed just and equitable to do so, considering factors such as the gravity of the offence, the relevance of the evidence, and the circumstances under which it was obtained. The defence argued that the evidence should be excluded entirely as it was obtained in violation of McKeough's rights, while the prosecution contended that the evidence's probative value outweighed any prejudice caused by its unlawful acquisition.

The court carefully considered the principles surrounding the admissibility of illegally obtained evidence and the discretionary power to admit such evidence. Ultimately, the court found that the evidence should be excluded. The court emphasised the importance of protecting individual rights and maintaining the integrity of the legal process. The judge concluded that admitting the evidence would undermine public confidence in the justice system and that the prejudicial effect of the evidence outweighed its probative value. Consequently, the evidence obtained through the unlawful search was excluded from the trial.

The final orders of the court resulted in the exclusion of the contested evidence from the trial, significantly impacting the prosecution's case. The court's decision underscored the principle that the ends do not justify the means, and that the integrity of the legal process must be preserved even in the pursuit of justice. The case highlights the importance of adhering to legal standards and the potential consequences of overreaching by law enforcement.

Orders