R v Navin Edwin (No. 2) - [2013] ACTSC 84

R v NAVIN EDWIN (No. 2)
[2013] ACTSC 84 (10 May 2013)

CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether evidence should be excluded under ss 137, 138 Evidence Act 2011 (ACT) – whether evidence obtained improperly or in consequence of impropriety – whether the evidence obtained in contravention of Australian law or as a consequence of such contravention – evidence not obtained improperly or in contravention of Australian law –– in any event, the evidence should be admitted as probative value high – probative value not diminished by alleged inconsistency – application to exclude evidence refused

CRIMINAL LAW – STATUTORY INTERPRETATION – application of s 474.5 Criminal Code 1995 (Cth) – communication in s 474.5 ceases to be “a communication in the course of telecommunications carriage” once it is received – s 474.5 not concerned with what becomes of the communication after it is received by the device to which it is sent

Crimes Act 1900 (ACT), ss 3E, 60, 61, 64, 65
Crimes Act 1914 (Cth), s 3E
Criminal Code 1995 (Cth), ss 473.1, 474.5, 474.17, 474.19, 474.24
Evidence Act 1995 (NSW), s 138
Evidence Act 2011 (ACT), s 138, s 137
Public Health Act1991 (NSW)
Telecommunications Act1997 (Cth), ss 7, 56, 87

Employment Advocate v Williamson (2001) 185 ALR 590
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
Ridgeway v The Queen (1995) 184 CLR 19
Robinson v Woolworths Ltd (2005) 158 A Crim R 546
R v Dalley (2002) 132 A Crim R 169
R v Nona [2012] ACTSC 41
R v Stubbs [2009] ACTSC 63

No. SCC 60 of 2011
No. SCC 61 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 10 May 2013

IN THE SUPREME COURT OF THE     )          No. SCC 60 of 2011
  )          No. SCC 61 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

R
v

NAVIN EDWIN

ORDER

Judge:  Burns J
Date:  10 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

The application to exclude evidence is refused.

By an indictment dated 19 July 2012 the accused was charged with 23 counts, alleging offences against seven different offence provisions, in respect of six different complainants. The 23 counts are comprised of the following:

(a)Seven alleged offences against s 61 (1) of the Crimes Act1900 (ACT), six relating to the complainant ELC and one relating to the complainant MB;
(b)Six alleged offences against s 64 (1) of the Crimes Act1900, five relating to the complainant ELC, and one relating to MB’
(c)Two alleged offences against s 474.24 of the Criminal Code 1995 (Cth) relating to the complainant CR and a further complainant THW;
(d)Three alleged offences against s 474.17 of the Criminal Code 1995 (Cth), one relating to CR and two relating to THW;
(e)Two alleged offences against s 474.19 of the Criminal Code 1995 (Cth) relating to THW;
(f)One alleged offence against s 60 (1) of the Crimes Act 1900 (ACT), relating to JK;
(g)One alleged offence against s 65…

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 Navin Edwin (No. 2)

Details

AGLC: R v Navin Edwin (No. 2) [2013] ACTSC 84
Case: [2013] ACTSC 84
Decision Date: 10 May 2013

CaseChat Overview and Summary

In this case, the applicant, Navin Edwin, sought to exclude evidence obtained by the police from a mobile phone. The matter was heard in the Supreme Court of the Australian Capital Territory. The dispute centred on the admissibility of evidence obtained from the applicant's mobile phone, specifically, whether it should be excluded under sections 137 and 138 of the Evidence Act 2011 (ACT). The applicant argued that the evidence was obtained improperly or in consequence of impropriety, and that it was obtained in contravention of Australian law. The court needed to determine whether the evidence was obtained improperly or in contravention of Australian law and whether, if so, the evidence should be excluded. Additionally, the court had to consider whether the probative value of the evidence was outweighed by any unfair prejudice to the applicant.

The court examined the relevant statutory provisions and found that the evidence was not obtained improperly or in contravention of Australian law. It was noted that section 474.5 of the Criminal Code 1995 (Cth) does not concern itself with what happens to a communication after it is received by the intended device. The court also determined that the probative value of the evidence was not diminished by any alleged inconsistency, and the evidence should be admitted. The court held that the probative value of the evidence was high and not outweighed by any unfair prejudice to the applicant.

Accordingly, the application to exclude evidence was refused. The court did not find any grounds for excluding the evidence obtained from the applicant's mobile phone. The evidence was deemed admissible and relevant to the case. The court's decision was based on the legal interpretation of the relevant statutory provisions and the assessment of the probative value of the evidence. The final order was that the application to exclude evidence is refused, allowing the evidence to be used in the proceedings against the applicant.

Orders

Orders of the court

1. The application to exclude evidence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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