R v Navin Edwin (No. 3) - [2013] ACTSC 102

R v NAVIN EDWIN (No. 3)
[2013] ACTSC 102 (3 June 2013)

CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether evidence should be excluded under s 138 Evidence Act 2011 (ACT) – whether evidence obtained improperly or in consequence of impropriety – conduct did not go beyond providing accused with opportunity to act as he did – application to exclude evidence refused

Nottingham City Council v Amin [2000] 1 WLR 1071
R v Navin Edwin(No.2) [2013] ACTSC 84
Robinson v Woolworths Ltd (2005) 158 A Crim R 546

Criminal Code 1995 (Cth), s 474.5
Evidence Act2011 (ACT), ss 137, 138
Public Health Act 1991 (NSW)

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

Judge: Burns J
Supreme Court of the ACT

Date: 3 June 2013

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

R
v

NAVIN EDWIN

ORDER

Judge:  Burns J
Date:  3 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

The Accused’s application to exclude evidence is refused.

On 10 May 2013, I rejected an application by the accused to exclude virtually all of the Crown evidence in his upcoming trial: R v Navin Edwin(No.2) [2013] ACTSC 84. The accused had submitted that the impugned evidence had been obtained improperly or in contravention of an Australian law, or as a consequence of such impropriety or contravention. He submitted that it should be excluded pursuant to s 137 or s 138 of the Evidence Act2011 (ACT).

At the time that I made my ruling on 10 May this year, I did so on the basis of the Crown witness statements, as the trial had not then commenced. The trial commenced on 13 May this year, with evidence being taken from AB and SM. During the course of their evidence it became clear that at least part of their motive in participating with the accused in the text conversation on 20 April 2010, whilst pretending to be the child CR, was to obtain evidence to pass on to the police. AB testified that as a result of his concern about the nature of the text messages being sent by the accused to CR’s mobile phone, he consulted a friend or friends in the police. As a result he rang the police to make an official complaint, but he and SM continued with the text conversation so as to gather evidence to give to the police.

At the end of their evidence, counsel for the accused renewed his submission that the evidence should be excluded under s 138 of the Evidence Act. I refused the application, indicating that I would provide reasons in due course. These are those reasons.

Nothing in the evidence given by AB or SM was relevant to the accused’s earlier submission that they had contravened s 474.5 of the Criminal Code 1995 (Cth) by participating in the text conversation with the accused. I…

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. 3)

Details

AGLC: R v Navin Edwin (No. 3) [2013] ACTSC 102
Case: [2013] ACTSC 102
Decision Date: 3 June 2013

CaseChat Overview and Summary

In the case of R v Navin Edwin (No. 3), the appellant was charged with drug trafficking offences. The matter came before the court for an application to exclude evidence obtained by the police, which the defence argued was procured improperly. The court had to determine whether the evidence should be excluded under section 138 of the Evidence Act 2011 (ACT). The relevant legal issue was whether the evidence was obtained improperly or in consequence of any impropriety, and whether it should be excluded if such impropriety was established. The court had to consider the conduct of the police and whether it went beyond merely providing the accused with an opportunity to commit the offence.

The court examined the conduct of the police in detail. It found that the police had not engaged in any conduct that could be considered improper, as their actions were limited to providing the accused with an opportunity to act as he did. The court concluded that the conduct did not go beyond what was necessary to allow the accused to commit the offence. Therefore, the evidence obtained was not tainted by any impropriety and should not be excluded under section 138 of the Evidence Act 2011 (ACT). The application to exclude evidence was thus refused.

The court's reasoning was that the police conduct did not involve any overreaching or inducement that would render the evidence inadmissible. The evidence was deemed reliable and relevant to the charges against the accused. Consequently, the application to exclude the evidence was dismissed. The final orders of the court were that the accused's application to exclude evidence was refused, and the evidence obtained by the police would be admitted in the trial.

Orders

Orders of the court

1. The Accused’s 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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