R v Riley

Case [2020] NSWCCA 283


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Riley, Christopher [2020] NSWCCA 283
Hearing dates: 13 May 2020
Decision date: 04 November 2020
Before: 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

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Evidence Act 1995 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

AW v R [2009] NSWCCA 1

BM v R [2017] NSWCCA 253

Brown v Director of Public Prosecutions (NSW) [2018] NSWCCA 94

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22

CA v R [2017] NSWCCA 324

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63

Director of Public Prosecutions v Marijancevic (2011) 33 VR 440; [2011] VSCA 355

Director of Public Prosecutions v MD (2010) 29 VR 434; [2010] VSCA 233

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13

Em v The Queen (2007) 232 CLR 67; [2007] HCA 46

Fleming v R [2009] NSWCCA 233; 197 A Crim R 282

House v The King (1936) 55 CLR 499; [1936] HCA 40

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168

Karam v R [2015] VSCA 50

McCartney v R (2012) 38 VR 1; [2012] VSCA 268

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Murdoch v R (2013) 40 VR 451; [2013] VSCA 272

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158

R v Ali [2015] NSWCCA 72

R v Arvidson [2008] NSWCCA 135; 185 A Crim R 428

R v Blick [2000] NSWCCA; 111 A Crim R 326

R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36

R v Dickman (2017) 261 CLR 601; [2017] HCA 24

R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308

R v GM (2016) 97 NSWLR 706; [2016] NSWCCA 78

R v Grech; R v Kadir [2017] NSWCCA 288

R v Rapolti [2016] NSWCCA 264; 317 FLR 79

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Details
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.

No further orders were made by the court.

Orders

Orders of the court

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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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