R v Mouhalos No. DCCRM-97-38 Judgment No. D3666

The District Court of South Australia heard a preliminary application by the accused, Bill Mouhalos, against the Crown in the case of R v Mouhalos No. DCCRM-97-38. Mouhalos sought to exclude evidence obtained legally in New South Wales (NSW) from being admissible in the South Australian court. Mouhalos was charged, alongside Putland, with possessing amphetamine and methylamphetamine for sale. Putland had already pleaded guilty and was awaiting sentencing. The Crown sought to introduce evidence obtained through surveillance tapes by the NSW Police, recorded under the authority of a warrant issued by a NSW Supreme Court judge under the Listening Devices Act 1984 (NSW).

The court was required to decide whether the evidence obtained in NSW, which extended beyond the scope of the original warrant, should be excluded. Specifically, the court needed to determine if the evidence obtained inadvertently, though lawfully, under the NSW Act could be admissible in South Australia, where the law on the admissibility of such evidence is stricter. Furthermore, the court had to consider whether the admission of this evidence would be unfair to the accused, even if it was lawfully obtained.

The court found that the evidence obtained in NSW was lawfully obtained and, pursuant to s14 of the Listening Devices Act 1984 (NSW), was admissible in NSW courts. The court held that the evidence was not illegally obtained and therefore did not warrant exclusion under a Bunning v Cross type discretion. The court further determined that the admission of the evidence would not be unfair to the accused, as the investigating authorities had not engaged in any unfair conduct. The court held that the evidence, although not specifically tailored to the charges against Mouhalos, was relevant and admissible, and its probative value outweighed any potential prejudice to the accused. Therefore, the application to exclude the evidence was refused.