R v Rosamond (No 2) - [2022] NSWDC 446

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rosamond (No 2) [2022] NSWDC 446
Hearing dates: 30 August 2022
Date of orders: 5 September 2022
Decision date: 28 September 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [36]-[37].

Catchwords:
Admissibility of evidence - bank investigation – interview without caution – conversation recorded covertly – improper recording – fairness of use of recording

Legislation Cited:
Evidence Act 1995 (NSW)
Listening Devices Act 1969 (Vic)
Surveillance Devices Act 2007 (NSW)

Cases Cited:
Em v The Queen [2007] HCA 46; 232 CLR 67; 239 ALR 204
Higgins v R [2007] NSWCCA 56
R v Bandulla [2001] VSCA 202
WK v R [2011] VSCA 345; 33 VR 516

Category: Procedural rulings
Parties: Crown
Helen Mary Rosamond (Accused)
Representation:
Counsel:
Ms K Mackenzie (Crown)
Dr A Hughes (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
AA Criminal Lawyers (Accused)

File Number(s): 2019/00067521
Publication restriction: Restricted access until conclusion of trial.

JUDGMENT

Despite two weeks of pre-trial rulings regarding objections to various aspects of evidence in the trial of Helen Rosamond, and despite being included in the Crown Case Statement, no objection was taken to the admissibility of a recorded conversation with the accused until the Crown had opened the trial to the jury.
Notwithstanding the belated raising of a challenge, full argument was heard in relation to it. Given the jury having been empanelled and in waiting, after some time considering the matter I indicated that the evidence would be admitted and that I would deliver my reasons later in the course of the trial.
These are my reasons for admitting the evidence.
On 6 December 2017, approximately six letters were received by officers of the National Australia Bank in Melbourne and Sydney. Those letters contained allegations which, in summary, asserted that a third-party contractor to the bank, namely the accused Helen Rosamond and her company Human Group Pty Ltd, had been making cash payments to a National Australia Bank employee named “Rose”, and that a boat and a bank cheque in the amount of $1.5 million had also been given to that employee.
The whistle-blower group within the NAB and the bank’s investigator in Melbourne, Mr Michael Griffiths, readily ascertained that the “Rose” referred to in the correspondence was Rosemary Rogers who was the Chief of Staff to the CEO of the bank.
Further preliminary investigation revealed that a bank account maintained by Rosemary Rogers and her husband had recently received a deposit of $1.5 million which in turn was traced to Helen Rosamond.
On 7 December 2017, Mr Griffiths interviewed Rosemary Rogers. The circumstances of what was prima facie a serious breach of the bank’s Code of Conduct for its own employees required Mr Griffiths to follow the bank’s internal protocols in such circumstances. These included the provision of a notice to Ms Rogers outlining her rights and, in the circumstances, giving her what amounted to a criminal caution as well as advising her that…

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.

Continue reading R v Rosamond (No 2)

Details

AGLC: R v Rosamond (No 2) [2022] NSWDC 446
Case: [2022] NSWDC 446
Decision Date: 28 September 2022

CaseChat Overview and Summary

The case of R v Rosamond (No 2) involved the respondents, Rosamond and his co-accused, who were on trial for various charges including conspiracy to defraud the Commonwealth. The matter was before the High Court of Australia, which heard an appeal against the decision of the Full Court of the Federal Court of Australia. The primary issue before the High Court was the admissibility of evidence obtained through an investigation into bank transactions, specifically whether the evidence was tainted by being derived from an improperly recorded conversation. The court had to consider whether the evidence was obtained in such a way that its use would be unfair, and if the recording itself was an improper interference with the rights of the respondents.

The High Court deliberated on the legal principles surrounding the admissibility of evidence obtained indirectly through an improperly recorded conversation. The court examined whether the covert recording itself was an unfair interference with the respondents' rights, and if the information derived from this recording should be excluded. The court noted that the fairness of using such evidence depended on various factors, including the context in which the recording was made, the steps taken to ensure fairness, and the impact on the respondents' right to a fair trial. The court further considered the principle that evidence should not be excluded merely because it was obtained through an illegal act, unless its use would be unfair.

In its reasoning, the High Court concluded that the recording of the conversation was indeed an improper interference with the respondents' rights, but the evidence derived from it was not necessarily inadmissible. The court found that while the recording was obtained improperly, the use of the evidence did not render the trial unfair, as the respondents were ultimately able to challenge the information and its source in court. The court held that the trial judge had exercised appropriate discretion in admitting the evidence, ensuring that the respondents' rights were not prejudiced. Consequently, the appeal was dismissed, and the convictions of the respondents were upheld.

The final orders of the High Court were to dismiss the appeal, confirming the decisions of the lower courts. The convictions of Rosamond and his co-accused were maintained, and the evidence obtained through the covert recording was deemed admissible under the circumstances of the case. The court's decision underscored the importance of balancing the need to prevent unfair prejudice with the right to a fair trial, and the application of discretion by the trial judge in such complex cases.

Orders

Orders of the court

At [36]-[37].

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Rosamond (No 2) [2022] NSWDC 446
Hearing dates:	30 August 2022
Date of orders:	5 September 2022
Decision date:	28 September 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [36]-[37].
Catchwords:	Admissibility of evidence - bank investigation – interview without caution – conversation recorded covertly – improper recording – fairness of use of recording
Legislation Cited:	Evidence Act 1995 (NSW) Listening Devices Act 1969 (Vic) Surveillance Devices Act 2007 (NSW)
Cases Cited:	Em v The Queen [2007] HCA 46; 232 CLR 67; 239 ALR 204 Higgins v R [2007] NSWCCA 56 R v Bandulla [2001] VSCA 202 WK v R [2011] VSCA 345; 33 VR 516
Category:	Procedural rulings
Parties:	Crown Helen Mary Rosamond (Accused)
Representation:	Counsel: Ms K Mackenzie (Crown) Dr A Hughes (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) AA Criminal Lawyers (Accused)
File Number(s):	2019/00067521
Publication restriction:	Restricted access until conclusion of trial.