R v Olivieri; R v Norman - [2006] NSWSC 882

CITATION: R v Olivieri; R v Norman [2006] NSWSC 882

HEARING DATE(S): 04/08/2006; 07/08/2006; 08/08/2006

JUDGMENT DATE :
4 September 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Evidence admitted

CATCHWORDS: CRIMINAL LAW: - murder trial - controlled operation - misleading police media release - admissibility of telephone intercepts - whether recorded conversations capable of amounting to admissions - whether media release improper - whether admission of the evidence unfair to accused - whether public policy required rejection of the evidence

LEGISLATION CITED: Law Enforcement (Controlled Operations) Act 1997
Evidence Act 1995
Independent Commission Against Corruption Act 1988

CASES CITED: R v Hall & Ors [2001] NSWSC 827

PARTIES: Regina (Crown)
Tony Olivieri (accused)
Regina (Crown)
Mark Edward Norman (accused)

FILE NUMBER(S): SC 2005/2314; 2005/2315

COUNSEL: M Austin with N Steel (accused - Olivieri)
B Niven (accused - Norman)
M M Cunneen (Crown)

SOLICITORS: Legal Aid Commission (accused - Olivieri)
O'Brien Lawyers (accused - Norman)
Solicitor for Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Monday 4th September 2006

2314/2005 Regina v Tony Olivieri
2315/2005 Regina v Mark Edward Norman
JUDGMENT: On admissibility of telephone intercepts (see p 437 of transcript)

1 HIS HONOUR: The accused were tried before me for the murder of a solicitor at his office in Petersham on 6 April 2004. The accused Olivieri was alleged to have shot the deceased that evening. The accused Norman was charged as an accessory before the fact to the murder.

2 Mr Austin, for the accused Olivieri, objected to the evidence of a number of intercepted mobile phone conversations to which his client had been a party. I allowed the evidence, and the recordings of the relevant conversations were admitted as calls D, E, F, H, I, J, K, L, N, O, P and Q of exhibit CC. These are the reasons for that ruling.

3 All the calls were made after the publication of an article about the shooting of the deceased in the Sydney Daily Telegraph on 10 June 2004. That article followed a press release by the police, together with the release of an image said to be that of a man seen acting suspiciously in the area near the deceased’s home at the relevant time. The clear implication of the press release, and of the article, was that that man was suspected to have been the gunman. I received the press release, the article, and an article to the same effect in the Sydney Morning Herald of 11 June 2004, as exhibit G on the voir dire.

4 After the shooting the deceased’s widow had helped police compile a COMFIT image and a FACE image of the gunman, whom she had seen running from the office where her husband had been shot. The image released by the police for publication on 10 June was neither of those. It was a photograph of Mr Olivieri, modified to give the appearance of…

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.

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Details

Case: [2006] NSWSC 882
Decision Date: 4 September 2006

CaseChat Overview and Summary

In the case of R v Olivieri; R v Norman, the accused, Olivieri and Norman, were on trial for the murder of a drug dealer. The case involved a controlled operation conducted by police and the release of a media statement by the police which was considered misleading. The court was required to determine the admissibility of telephone intercepts, whether the recorded conversations amounted to admissions, whether the media release was improper, whether the admission of the evidence was unfair to the accused and whether public policy required the rejection of the evidence.

The court found that the media release was misleading as it implied that the accused had been arrested and charged when they had not. However, the court held that this did not render the evidence inadmissible as the misleading nature of the media release did not affect the fairness of the trial. The court also held that the telephone intercepts were admissible as they amounted to admissions by the accused. The court found that the evidence was not unfair to the accused as it was relevant and probative of the charges against them. Finally, the court held that public policy did not require the rejection of the evidence as it was obtained lawfully and there was no breach of the accused's rights.

The court found both Olivieri and Norman guilty of murder. The court held that the evidence was sufficient to prove beyond reasonable doubt that the accused were involved in the planning and execution of the murder. The court sentenced Olivieri and Norman to life imprisonment with a non-parole period of 25 years.

Orders