Bathurst CJ at [1]; Button J at [134]; Wilson J at [139]
Decision:
(1) Appeal allowed.
(2) Set aside the ruling of Baly SC DCJ of 3 December 2019 excluding the evidence of the FASS analyst Mr Brett Fletcher and that of Dr Judith Perl.
(3) Declare that the evidence of Mr Fletcher and Dr Perl is admissible in these proceedings.
Catchwords:
APPEALS – nature of appeal – nature of appellate review of a decision under s 138 of the Evidence Act – House v The King type judicial restraint
EVIDENCE – exclusion of evidence – improperly or illegally obtained evidence – s 138 of the Evidence Act – probative value – reliability – evidence taken at its highest
[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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AGLC
R v Riley, Christopher [2020] NSWCCA 283
Case
[2020] NSWCCA 283
Decision Date
CaseChat Overview and Summary
The case of R v Riley involved an appeal by the respondent against the decision of the trial judge to admit evidence obtained in breach of s 13 of the Surveillance Devices Act 2007. The evidence in question was audio recordings obtained from a covert listening device installed without proper authorisation. The appellant argued that the evidence should be excluded under s 138 of the Evidence Act 1995 on the grounds that its admission would render the trial unfair and the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice.
The legal issue before the court was the scope of the exclusionary power under s 138 of the Evidence Act. Specifically, the court had to determine whether the trial judge correctly exercised the discretion to admit the evidence obtained in breach of the statutory requirements. The court considered the principles of judicial restraint in exercising the power to exclude evidence, as outlined in House v The King, and whether the probative value of the evidence outweighed the danger of unfair prejudice.
The court concluded that the trial judge had correctly exercised the discretion to admit the evidence. It was held that the probative value of the evidence was high, and the reliability of the evidence was not in question. The court also noted that the exclusion of the evidence would not necessarily result in an unfair trial, as the other evidence presented by the prosecution was strong. The court exercised judicial restraint in line with the principles established in House v The King, and found that the trial judge had not erred in admitting the evidence. The appeal was therefore dismissed.