R v Punter

[2019] NSWDC 964

District Court

New South Wales

Medium Neutral Citation:

R v Punter [2019] NSWDC 964

Hearing dates:

Wednesday 3 – Friday 4 April 2019

Date of orders:

Tuesday 9 April 2019

Decision date:

09 April 2019

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Application to exclude Evidence pursuant to S138 Evidence Act, 1995 (NSW) not granted.

Catchwords:

CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity — Admissibility of evidence — s 138 Evidence Act — Accused application to exclude Crown evidence — Facebook messages and recorded telephone calls between accused and person claiming to be 15 years old — Accused submits Facebook messages and recorded telephone calls were obtained improperly —Accused submits police had no reason to suspect him of child grooming — Accused worked as teacher at school — Two students at the school where accused worked made complaint about the accused — One student was 16 and the other was 17 — Police assumed identity of 15 year old online and started communicating with accused – Accused had no criminal history — Probative value of evidence not insignificant.

Legislation Cited:

Crimes Act 1914 (Cth);

Criminal Code Act 1995 (Cth), ss 474.27, 474.27A(1);

Evidence Act 1995 (NSW), ss 138, 138(3);

Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 8, 5 (2A);

Surveillance Devices Act 2007 (NSW), ss 7(1), 7(4).

Cases Cited:

Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120;

Ridgeway v The Queen (1995) 184 CLR 19;

The Queen v Priest [2011] ACTSC 18;

The Queen v Stubbs [2009] ACTSC 63.

Category:

Principal judgment

Parties:

Regina (The Queen)
Mr James Punter (The Accused)

Representation:

Counsel:
Mr. S. Howell (the Crown)
Mr. S. Schaudin, (the Applicant)

File Number(s):

2017/00141793

Publication restriction:

Non-publication of identity of two persons referred to in annexure to statement of Detective Senior Constable Gatward, dated 1 August 2018.

Judgment

1. HER HONOUR: In this matter of Punter the accused has been arraigned on two counts in an indictment as follows: Count 1, that between about 13 March and 10 May 2017 at Moorebank he used a carriage service to transmit communications to a person who he believed to be under 16 years of age with the intention of making it easier to procure that person to engage in sexual activity with him. It is an offence contrary to s 474.27 of the Criminal Code Act 1995 (Cth). It is an offence described in the Act as, "Using a Carriage Service to Groom Persons Under 16 Years of Age". As an alternative to count 1 the accused stands charged with count 2, that between 13 March and 10 May 2017 he used a carriage service to transmit communications to the recipient who he believed was a person aged under 16 years and those communications contained material that was indecent. This is an offence contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth).
    

2. The accused has made a preliminary application challenging the admissibility of effectively the whole of the Crown case alleging that the police acted either or both illegally or improperly in procuring the accused's actions which they now rely on as the conduct to prove the offences. In other words, it is the application of the accused that if, in fact, it can be established that offences have been committed, they have been incited, induced, or encouraged by the conduct of the police, which in part involved their acting illegally and also involved impropriety on their part. The accused's application is that this evidence ought be rejected pursuant to s 138 of the Evidence Act 1995 (NSW).
    

3. The evidence subject to this challenge falls into two categories. The first is a series of Facebook message communications between the accused and a person identifying himself as a 15-year-old boy named Jack, and three recorded telephone conversations between these two people. Jack in fact was a police officer using an assumed identity. There are also some texts to be relied on in the Crown case which are not the subject of this challenge, and it would appear they were gathered as a result of an unchallenged lawful search warrant at the time of arrest.
    

4. I have had the benefit of written submissions from the accused and the Crown, with a number of documents tendered on this voir dire, and I have been referred to some authorities. As I understand the submissions on behalf of the accused it would appear that the challenge to the Facebook message evidence is largely that it was obtained improperly, not being argued as far as I understand it with any great vigour, that it was obtained illegally, but I propose to deal with both propositions in this judgment.
    

5. The challenge to the admissibility of the telephone calls would seem to be that in intercepting and recording those calls the police acted illegally. Dealing first with the background, I accept from the combination of documents tendered, including the document headed Statement of Facts, that the alleged offences came to light during an investigation being undertaken by a specialist unit of the New South Wales Police Service Child Exploitation Internet Unit, which I will refer to as CEIU in this judgment. Inter alia this unit undertakes many tasks but amongst them is what they describe as proactive investigations on various internet websites, including Facebook. They were undertaking this task in February 2017 and following. I understand that by proactive investigations this unit means that they monitor various websites, both mainstream and otherwise, known to be used by paedophiles and others, and sometimes pursue people via online communications using a profile that depicts an officer as a juvenile.
    

6. This unit, I accept, also undertakes specifically targeted investigations of the online activities of various individuals who may be suspected of being involved in grooming children online for sexual activity or disseminating child exploitation material. This is a unit of the New South Wales Police Service, but I accept that there is a range of offences both State and Commonwealth capable of being detected as a result of this activity. I accept from the evidence of the officer in charge of this case, that for this matter, at all times the unit understood that they were targeting Commonwealth offences, in fact the very offences with which the accused has been charged.
    

7. At around this time in February March 2017 officers from the Macquarie Fields Local Area Command of the New South Wales Police Service received information from school authorities at Eagle Vale High School expressing concern about the activities of the accused, who had worked at the school for six weeks at the end of 2016 as a student teacher, and who, as a 38 year old man at the time, was about to complete his teacher training and become a fulltime teacher. There was a COPS entry created which is evidence on this voir dire and which contains a statement that two students at the school had complained to the deputy principal in early 2017 about the accused.
    

8. The first contact with the school was on 14 February 2017 when the deputy principal of the school contacted police to advise that a student, then aged 16 almost 17, had advised that during the Christmas holiday break the accused sent him a Facebook friend request which he accepted, and then had ongoing Facebook contact with him throughout the Christmas period and into early 2017. This ended with the accused sending him a photograph of himself shirtless, inviting the student to feel his pectoral muscles. This was via the Facebook platform.
    

9. The student was able to provide the police with copies of these photos which the accused had sent him via Facebook. The student told his mother about this and then deleted the accused from his Facebook account. His mother told him to tell the principal, which he forgot to do until 14 February 2017. The details of this were recorded in the COPS database.
    

10. This COPS document indicates that a similar complaint was made by the school to police about the accused on 2 May 2017 and involving another student. That student was also then aged 16 and it was in relation to the period of six weeks in which the accused worked as a student teacher at the school in late 2016. This student said that the accused had also contacted him on Facebook over the Christmas holiday period and had ongoing Facebook conversations with him. Unlike the first student who had complained to the deputy principal, this student had not been taught by the accused nor been in any of his classes and had only minimal contact with him. During the two months of Facebook communications with the accused, according to this student, the accused had a steady conversation with him attempting to obtain a place and time to undertake tuition with him.
     

11. In particular the COPS database contains the following entry: "There are concerns from the school that the accused may be grooming this student". It is also recorded that there were now two known incidents where the accused had contacted Eagle Vale High School students, not long after he had worked there as a student teacher. This part of the COPS entry went on to add, "There has been no offence detected at this stage".
     

12. The officer in charge of the case before me, Detective Senior Constable Gatward, was made aware of these reports from the Macquarie Fields Local Area Command in early March 2017. He was at the time one of the members of the CEIU. After reading these reports he began an investigation into the online activities of the accused, which included members of that unit posing as a 15-year-old boy who called himself Jack, and engaging with the accused via Facebook messenger communications. One officer in particular is referred to by the pseudonym, CEIU 24, and he was a member of the unit.
     

13. The accused, during the course of these communications, provided him with his mobile phone number which was used by the accused to contact CEIU 24 on at least three occasions, and it is these three intercepted telephone conversations that are the subject of the second part of the challenge to this evidence. Between 13 March and 10 May 2017 there were numerous contacts between the accused and CEIU 24 via the Facebook platform, comprising both offline messages and online chats. There are 77 in total relied on by the Crown, as a large part of the evidence to prove both the substantive or alternative count. They are tendered on this voir dire. There are 68 pages in all.
     

14. To some extent they would appear to be benign, but the Crown relies on the entirety of them and in particular portions referred to in paras 8 to 14 of the Crown's written submissions to prove that overall, the accused's intention in these communications was to procure the person who he believed was a 15 year old boy called Jack, into having sexual activity with him. A jury may or may not accept that this intention is proved beyond reasonable doubt from that material and other evidence, but I accept that these portions, referred to by the Crown, are capable of that finding.
     

15. During the course of the online communications, telephone numbers were exchanged, as I have said, and there were telephone calls between the two. The Crown seeks to rely on three in particular which were intercepted and recorded. They were calls made on 28 March, 3 April and 4 April 2017. The transcripts of those are tendered on this voir dire. The evidence is that they were recorded on a Dictaphone connected to the phone being used by CEIU 24.
     

16. There was no Surveillance Devices Act2007 (NSW) warrant in place to record those calls at the time. As I have said, there are also some texts located on the accused's phone which would be relied on by the Crown, but these appear to have been captured as a result of a lawfully executed search warrant at the time of his arrest, and are not the subject of any challenge.
     

17. For the whole of the period covered by these charges, there was also in existence an authority to conduct a controlled operation issued pursuant to s 8 of the Law Enforcement (Controlled Operations) Act 1997 (NSW) (which I will refer to as ‘LECO’ in this judgment). Section 5 of that Act provides the circumstances and manner in which such authorities can be sought. It requires a law enforcement officer to apply to the Chief Executive Officer for an authority to conduct a controlled operation on behalf of the agency. Section 5 (2A) sets out what must be provided, which includes a plan of the proposed operation, and the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted, the nature of the controlled activity in respect of which an authority is sought and other matters. It also requires the names and ranks of the law enforcement officers nominated to be the principal law enforcement officer, and the secondary law enforcement officers for the proposed operation.
     

18. Section 5 dealing with applications for such authorities does not, on its face, limit such an application to operations targeting specific individuals, specific places or specific circumstances. The definitions in LECO of the various matters are instructive in dealing with this application. A “controlled activity” is defined as meaning an activity that, but for s 16, would be unlawful. To paraphrase, s 16 provides that an offence is not regarded as being unlawful if it is a criminal act covered by the properly applied for and authorised controlled authority to conduct a controlled operation.
     

19. Pursuant to the definition in the Act, a “controlled operation” includes:
     

1. obtaining evidence of criminal activity or corrupt conduct, or
    

2. arresting any person involved in criminal activity or corrupt conduct, or
    

3. frustrating criminal activity or corrupt conduct, or
    

4. carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in para (a), (b) or (c), being an operation that involves, or may involve, a controlled activity."
    

20. “Criminal activity” is defined in the Act as meaning "any activity that involves the commission of an offence by one or more persons."
     

21. The authority to conduct a controlled operation in existence at the time of these offences has been tendered on the voir dire. It must be taken to have been issued regularly, and this appears to have been the case. On its face, it authorises all of the members of the CEIU to engage in conduct which might otherwise amount to either, or both, aiding and abetting, counselling, procuring, grooming, inciting, agreeing to or acting in concert with unidentified persons in the commission of procuring or grooming a child for unlawful activity, or doing the same in relation to the commission of disseminating, producing or possessing child abuse material. It also permits the named officers to use assumed names in carrying out activities pursuant the authority to conduct a controlled operation. The officer CEIU 24 was one of the specific officers permitted to engage in this way. The officer named as the applicant for the certificate was also one of those named, and the officer in charge who commenced the investigations in relation to the accused is also named as one of the officers.
     

22. The issue here is whether or not, in those circumstances and with that background, the police operated either or both illegally or improperly in their dealings with the accused, which has given rise to the evidence which the Crown seeks to rely on, namely the Facebook communications and the intercepted telephone calls. Dealing first with the issue of illegality, it is not crystal clear, or at least not to me, that the accused alleges that the police engagement with the accused during Facebook communications amounted to illegal behaviour. Officer Gatward in his evidence asserted that the investigation of the accused in the way that occurred, namely by the officer assuming the identity of a 15-year-old boy during Facebook messages and in telephone calls was not in fact occurring pursuant to the authority to conduct a controlled operation because, at least in his view, what was being done was not otherwise engaging in a criminal offence for which that protection was necessary. That evidence requires some examination.
     

23. The officer was pretending to be a 15-year-old boy, and communicating with the accused. It was, in the vernacular, a sting, in circumstances where the police had suspicions that he was grooming younger people for sexual conduct, and that this may well lead to the grooming of underage boys for sexual activity. Using a fictitious name, when communicating online, is not illegal. Without more, using fictitious identities in online platforms is not illegal. It may be contrary to the conditions of use of various platforms, such as for example, and away from the facts of this case, various tourism reporting sites. If a person did so with the intention of obtaining a financial advantage or benefit, that may involve the commission of a crime, but without more, it does not constitute illegal behaviour to assume an identity online. It is a legitimate form of investigation of the type, in my view, envisaged by the High Court in the Ridgeway v The Queen (1995) 184 CLR 19 to which I will return soon.
     

24. If the activities of the officer, however, were to go beyond that and amount to inciting the accused to engage in, procuring or grooming him for unlawful sexual activity, that may well amount to his commission of a criminal offence. That is because the grooming offence is not avoided just because in fact the officer was not aged less than 16. It is the belief of the accused that is relevant for this particular offence, namely that the accused believed that the person with whom he was engaging online was younger than 16. So, it may well be that the activities of such an officer could go further than a straightforward investigation, and it may well be in certain circumstances, that such behaviour would stray into the boundary of inciting criminal behaviour. However, it must always be understood that the criminal behaviour contemplated, before it could be viewed as impermissible would be to incite the accused, or an accused, to criminal activity that would not otherwise be reasonably suspected to have been engaged in by him unless so induced or encouraged. It is something of a grey area in this case.
     

25. It seems to me, however, that there could not be a finding here, on the evidence, that the engagement by police with the accused, over the Facebook Messenger platform, amounted to illegal activity on behalf of the accused. As such, the belief of the officer in charge that they were not acting pursuant to the authority to conduct a controlled operation, but just in general investigation of suspected criminal behaviour, may well be the case. It is worthy of note however, and I make the comment at this stage, that whilst the officer did give this evidence, he also gave evidence that he had never read the authority to conduct controlled operations and was not aware therefore of any of the limitations that attached to it. This was in circumstances where, as I understand the evidence, this particular authority to conduct controlled operations had been in place for about four and half years, and was renewed regularly each six months.
     

26. It seems to me that that is a matter of some concern, and it may be by inference that none of the other members of the CEIU nominated in that authority had read the document or were aware of the legal basis on which they were conducting subterfuge internet activities with unidentified persons. It is, of course, a breach of an individual's privacy to have his or her online communications monitored. We all, of course, either directly or indirectly, agree to this course every time we use various internet sites, bearing in mind the way in which advertising is then targeted to each of us every time we use a particular online site. It is, nonetheless, a breach of privacy, and not something that any individual presumably would expect to be the case when he or she engages in online Facebook Messenger chats with people.
     

20. Of course, it is an even greater breach of human rights when children are targeted by people using these online sites to engage them in both online and regrettably, ultimately, personal sexual activity. This is not a fanciful nor farfetched possibility and this Court is only too aware of the fact that this occurs frequently. It is, no doubt, part of the rationale for not just the introduction of these offences into the Criminal Code Act 1995 (Cth), but also the establishment of the CEIU and the existence of the controlled operation authorities, which on the evidence before me, as I have said, are renewed every six months. However, given the infringement of privacy which occurs, and the potential infringement of human rights, it is a concern that those police officers charged with the investigation of this scourge of online juvenile grooming for sexual purposes appear not to be aware of the legal basis on which they are permitted to infringe this privacy and engage in this intrusion. It would be preferable if in fact, at the very least, they read the instructions under which they are purporting to operate.
     

21. However, as I have said, I am not satisfied that the evidence establishes that their interaction with the accused via the Facebook Messenger platform amounted to illegality on their part. As I understand it, however, the application of the accused in relation to this portion of the evidence, that is, the Facebook messages, is more based on an assertion that the behaviour of the police was improper. The accused's application here is that the police have acted improperly which I understand that to be based mainly on two propositions. The first is that the police had no reasonable basis for suspecting that the accused was likely to commit an offence, or specifically any offence of the type they were targeting, namely grooming or interaction with underage people for sexual purposes. It is argued that even going to the COPS document, the police did not believe that any offence had been committed with the two pupils of the high school where he had been a student teacher. On behalf of the accused, the Court is reminded that each of these two pupils was over 16, one almost 17, and the accused was a 38 year old man about to finish his student training with no criminal record.
     

22. The argument was put that in those circumstances, there could be no reasonable ground for suspicion that the accused was likely to commit the offences or any offences involving grooming of juveniles or engaging with juveniles online or via telecommunications services for sexual purposes or in circumstances of indecency. I reject that argument. The police were notified by the school authorities, as I have said, that on the basis of the two complaints made to them, that they had concerns that the accused was grooming these students for sexual purposes. That is not an unreasonable concern in my view. He was a student teacher, and he was 38. He found these two students on Facebook and befriended them, not long after he had finished as a student teacher at the school.
     

23. One of them he had only met twice and was never a student in his class. He offered one of them to touch his bare chest and sent him pictures. He offered to meet the other in person for the purposes of tuition. None of this constitutes criminal offending as such, but given the relationship of teacher and student, the age difference, his seeking them out and the photographs and the like, there is every reason, particularly armed as all institutions now are with very clear sight about the risk of this sort of behaviour and what is expected of them, for the school to have shared its concerns with the police and for the police to have equally had these concerns and then decided to conduct further investigations in relation to the accused, including his online activity. Whilst each of the two nominated students was over 16, there is nothing unreasonable in a suspicion that in the circumstances, the accused's interests may well have extended to under aged children.
     

24. The fact that he had no criminal history of course may be a factor in enlivening, or not, a reasonable suspicion. But regrettably, the lack of criminal history is often the case for those who are detected for this sort of criminal behaviour, and who subsequently plead guilty to it. The fact that the police found nothing when they subsequently conducted searches at the accused's premises and interrogated his computers and other electronic equipment, is not relevant in determining whether or not it was open to them to have a reasonable basis to investigate him at the time. That is, in fact, an ex post facto rationale. I do not accept that it has been successfully made out that they ought not have had a reasonable suspicion at the time, or a reasonable basis for which to undertake an investigation of his online activities. There seems to be also, as a second basis, an argument against the use of an assumed identity to do so. As I have said, it is not illegal to do so and not improper.
     

25. Turning then to the authorities generally, Ridgeway is of course authority for the proposition that entrapment is not a defence under Australian law, but that there still exist situations in which improper behaviour, which is not otherwise illegal, will extend past the minimum standard of acceptable police conduct in all of the circumstances. However, it is also authority for the proposition that effective investigation by police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of criminal offences. The use of an assumed identity investigation such as this one, falls squarely within this latter scenario.
     

26. That aside, it is not illegal for law enforcement authorities to do that unless it becomes a situation in which, as stated in Ridgeway, there is a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all of the circumstances. I do not accept that this has been demonstrated here. Whether or not it has been demonstrated in any particular case depends not only on the conduct, but also on that which is being investigated. Regrettably, the grooming of children online for sexual gratification by adults is prevalent in Australia and internationally, and regrettably this is undertaken internationally all too frequently by Australian citizens.
     

27. It is also a notable feature of offences charged within this rubric that they are often committed by persons who act in positions of authority to children, be they teachers, priests, parents or similar. As I have said, they are also frequently committed by people who have no prior criminal record and no prior contact with police or law enforcement authorities. The Court can take judicial notice of these features when bearing in mind the type of criminality sought to be investigated, and in fact prevented, by the intervention of the unit in this case.
     

28. It is clear that the particular offences, the subject of these charges, in particular the substantive offence, count 1, seeks to prevent this sort of online grooming. In the vernacular, it seeks to nip it in the bud. The offences which are before the Court were introduced, I am reminded by the Crown in its written submissions, by an amendment to the Crimes Act 1914 (Cth), and during the second reading speech, the use of fictitious online identities was specifically referenced as a possibility. Even the terms of the substantive offence here focussed on the belief of the accused, namely a belief that the person with whom he was communicating was under 16, not the fact that the person was in fact under 16. Part of the purpose of these offences is to attempt to identify those who would abuse children in this way, before the abuse has occurred.
     

29. All of these are necessary considerations in determining whether or not, in the particular circumstances, the conduct of the officers was improper. As I have said, on my finding it was not. I have been provided with two particular authorities in relation to this offence in which a similar argument was mounted on behalf of the accused and related to the alleged illegality or impropriety of similar actions and conduct undertaken by police investigating charges contrary to s 474.27 of the Criminal Code Act 1995 (Cth). Both are decisions of the ACT Supreme Court. The first is The Queen v Stubbs [2009] ACTSC 63. The second is the decision of The Queen v Priest [2011] ACTSC 18.
     

30. Neither of these decisions gives any comfort to the accused on this application. In fact, to the contrary, in neither of those decisions did the Court find that the activities of the officers, which were almost identical with those undertaken here, albeit perhaps that the preceding conduct of each of the accused was more serious than that here, in neither case did the Court find that the conduct of the officers amounted to an impropriety, and in both cases the Court referred to the Ridgeway decision as covering the activities of the officers and, in particular, the understanding that sometimes law enforcement authorities need to engage in subterfuge, deceit and the like in investigating particular offences.
     

31. Neither on my analysis of the circumstances in which this Facebook evidence was gathered, the conduct of the officers in doing so, nor by reference to the authorities, am I of the view that either illegality or impropriety has been established here and I reject the application to find that evidence inadmissible on that basis.
     

32. The second argument on behalf of the accused is that the telephone calls which have been tendered, were obtained as a result of an illegality. Dealing with these three calls, it is an offence pursuant to s 7(1) of the Surveillance Devices Act 2007 (NSW), to record a telephone conversation. It is a criminal offence with criminal sanctions, therefore absent any other statutory exception, it would be illegal for the police to have recorded the conversations which the Crown seeks to rely on between the accused and CEIU.
     

33. The evidence is clear that the conversations conducted, as I recall it, on 23 March, 3 April and 4 April, were recorded by a Dictaphone attached to the telephone being used by the officer. Section 7(4) however provides that this does not apply to the use of a listening device if, and I quote:

                                Section 7(4):

1. a party to the private conversation is a participant in an authorised operation and in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity; and
    

2. the person using the listening device is that participant or another participant in that authorised operation.
    

41. As I have said in earlier findings, there was an authority to conduct a controlled operation in force at the time these telephone calls were recorded. The definition of authorised operation is an authorised controlled operation as referred to in LECO. So, as a matter of fact, at the time the telephone conversations were intercepted there was, in fact in place, an authorised controlled operation and in fact the officer CEIU 24 was a nominated officer in that authority and engaged in the telephone conversation.
     

42. In the circumstances of this case, this is a somewhat difficult area because the evidence is that whilst indeed CEIU 24 was a part of an authorised operation at the time he had the conversations with the accused, nonetheless it was the belief or opinion of the officer in charge that in fact he at least was not operating under that controlled authority at the time of the investigation. The evidence seems to be silent as to whether or not that belief changed during the course of the investigation.
     

43. The section, it seems to me, does not make it clear that the exception to criminality applies when the participant was in fact engaged in the telephone conversations as part of an authorised operation, or merely that as a matter of fact there was a controlled operation in place and that he was part of it. It seems to me that the better reading of this provision is that this is meant to apply to conversations made pursuant to controlled operations. It may be that by the time these calls were being recorded, in fact they were being made pursuant to the authority to conduct a controlled operation. It may be that they were not. It is, however, a grey area on the evidence in this trial. They are important calls, however, in the Crown case against the accused.
     

44. I am not, on the evidence before me in this voir dire, able to determine as a matter of fact whether or not at the time CEIU 24 engaged in the telephone conversations with the accused, he was in fact doing so as a participant in the authority to conduct a controlled operation which was in force at the time or whether he was doing so as part of the ongoing general investigation into the online activities of the accused. If those calls were made in his capacity as a participant in the nominated authority to conduct controlled operation, then it seems to me they are covered by s 7(4) of the Surveillance Devices Act 2007 (NSW) which removes illegality from them.
     

45. If they were not being conducted in that way, but otherwise generally, they are in fact illegally obtained because of the provisions on s 7(1) of the Surveillance Devices Act 2007 (NSW). If the latter be the case, it is then necessary to engage s 138 of the Evidence Act 1995 (NSW) to determine whether or not, despite the illegality, the evidence ought nonetheless be admitted. I am required to conduct that balancing exercise by taking into account s 138(3) of the Evidence Act 1995 (NSW). The probative value of this evidence is not insignificant. It is not the only evidence relied on by the Crown, but it is important. I thus find it is important in the Crown's case against the accused. The offence the subject of the charges is a serious criminal offence. If it be an impropriety or contravention of the law, it is not, in my view, a grave one. It was, at best, a reckless belief that the operations of the unit were covered by a controlled authority certificate. I do, however, reiterate my earlier comments that it would be very much preferable if the police who are doing this simply read the instructions that apply to their activities.
     

46. There are no international covenant implications involved, and overall, it is my view that on balance, notwithstanding the fact that on one view of the evidence about which I am not able to make a determination, these calls may well have been recorded illegally, nonetheless, on balance, the evidence ought be admitted pursuant to the exercise of discretion pursuant s 138 of the Evidence Act 1995 (NSW). It is somewhat unsatisfactory that the state of the evidence in relation to this aspect of this voir dire is not clear, however I have attempted to cover both scenarios, the bottom line being that either they were not illegal and therefore not subject to the sanctions in s 7(1) and do not fall for consideration about admissibility, or if they were, nonetheless I would admit them in the exercise of discretion pursuant to s 138.
     

47. The only other issue that needs to be covered is the argument on behalf of the accused that part of the overall impropriety involved the fact that the officers did not obtain a Commonwealth controlled operation authority, which would have been open to them, and in circumstances where it was apparent that they were investigating Commonwealth offences and knew that they had the need to obtain a Commonwealth search warrant when arresting the accused and similar arguments.
     

48. It would have been open to them to do so and they could well have been operating under two different controlled operation certificates. I have been referred to the dicta of the High Court in Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120 in relation to this argument. It seems to me that that case is not authority for the proposition that the police were obliged to obtain a Commonwealth authority and in the instant case, it seems to me that nothing turns on the fact that they did not do so. It certainly does not enliven any argument that in not doing so, they were behaving in any way that could amount to impropriety.
     

49. The application that the evidence in its totality be regarded as inadmissible is therefore not granted.
     

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Decision last updated: 17 November 2022