R v Navin Edwin (No. 3)
[2013] ACTSC 102
•3 June 2013
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 adhere to my ruling of 10 May this year rejecting that submission.
I ruled on 10 May this year that the actions of AB and SM in participating in the text conversation involved no pressure, persuasion or manipulation on their part. They simply provided the opportunity for the accused to do what he did. The fact that their motive with respect to some portion of the conversation was to gather material to give to the police does not change that fact. As I noted in my reasons of 10 May, in Robinson v Woolworths Ltd (2005) 158 A Crim R 546, the NSW Court of Criminal Appeal held that it was not improper for officers of the Department of Health to procure minors to purchase cigarettes from retailers as part of an investigation into compliance with provisions of the Public Health Act 1991 (NSW) prohibiting the sale of cigarettes to minors. That conduct could only have been directed towards detecting breaches of the law, and obtaining evidence of such breaches for the purpose of prosecuting offenders.
Offences of “grooming” young people by use of telecommunication services, and cognate offences, are difficult to detect. The victim of the offence is often too young and naive to fully understand the motives of the offender. He or she often believes that the offender is a friend and confidante. As such, they are not likely to bring the offence to the attention of authorities. There is nothing inherently unfair or improper in the use of a ruse, or trickery, to gain evidence of the breach of these laws, at least so long as the investigators actions do not go beyond providing an opportunity for the offender to offend, and become improper by virtue of inciting, persuading, pressuring or wheedling an offender into committing an offence: see Nottingham City Council v Amin [2000] 1 WLR 1071 per Lord Bingham of Cornhill CJ.
I was satisfied that AB and SM did not go beyond providing the accused with the opportunity to act as he did, and therefore the additional circumstance that they acted, at least in part, so as to obtain evidence to pass on to the police did not render their conduct improper. I therefore refused the accused’s application.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 3 June 2013
Counsel for the Applicant: Mr M Hassall
Solicitor for the Applicant: Craig Lynch & Associates
Counsel for the Respondent: Mr M Fernandez
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 14 May 2013
Date of Reasons: 3 June 2013
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