R v Rose - [2024] NSWSC 1614

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rose [2024] NSWSC 1614
Hearing dates: 19-20 November, 3, 9 December 2024
Date of orders: 16 December 2024
Decision date: 16 December 2024
Jurisdiction: Common Law - Criminal
Before: Weinstein J
Decision:
(1) The covertly recorded conversation between the accused and the undercover operative of the Queensland Police Service with the assumed name of Hemi Perata whilst the accused was in custody after his arrest for murder at Cairns watch house on 20 February 2022 is excluded pursuant to s 90 of the Evidence Act 1995 (NSW).

Catchwords:
EVIDENCE – admissions – pre-trial hearing to determine admissibility of evidence of admissions – where accused made admissions to undercover operative in police custody – where improperly and unfairly obtained information used to elicit admissions – evidence of admissions excluded

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Invasion of Privacy Act 1971 (Qld)
Surveillance Devices Act 2007 (NSW)

Cases Cited:
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Pavitt v The Queen (2007) 169 A Crim R 452; [2007] NSWCCA 88
R v Broyles [1991] 3 SCR 595
R v Mallah (2005) A Crim R 150; [2005] NSWSC 358
R v Swaffield & Pavic (1998) 192 CLR 159
R v Workman [2004] NSWCCA 213
Sidaros v The Queen [2020] ACTCA 11

Texts Cited:
Nil

Category: Procedural rulings
Parties: Rex (Crown)
Rodney Rose (Accused)
Representation:
Counsel:
S Oliver (Crown)
J Watts (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Universal Law (Accused)

File Number(s): 2022/00045909
Publication restriction: Nil

JUDGMENT

Introduction

This is an application by the accused pursuant to s 192A of the Evidence Act 1995 (“the Act”) to exclude a covertly recorded conversation between the accused and an undercover operative (“UCO”) of the Queensland Police Service (“QPS”) with the assumed name of Hemi Perata whilst the accused was in custody after his arrest for murder at Cairns watch house on 20 February 2022, and during which he made admissions as to his involvement with a murder.
Initially, the accused also sought the exclusion of statements by the accused to Detective Senior Constable (“DSC”) Hogan and DSC Apthorpe on 7 February 2022 recorded on body worn video (“BWV”), statements by the accused to DSC Hogan and DSC Briggs on 8 February 2022 recorded on BWV and in an Electronically Recorded Interview with a Suspected Person (“ERISP”) recorded on 8 February 2022. During the course of the proceedings before me, the Crown no longer pressed the items other than the covertly recorded conversation of 20 February 2022. However, it was conceded by the Crown that those items, and in particular the ERISP of 8 February 2022, were relevant to the accused’s application to exclude the covertly recorded conversation.
The accused relies solely on s 90 of the Act, which provides:-

90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence…

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 Rose

Details

AGLC: R v Rose [2024] NSWSC 1614
Case: [2024] NSWSC 1614
Decision Date: 16 December 2024

CaseChat Overview and Summary

The matter before the court involved a criminal prosecution against the accused, Rose, who was facing charges related to drug trafficking. The dispute centred on the admissibility of statements made by the accused during police custody, which were allegedly obtained through improper and unfair means. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the statements made by the accused could be admitted as evidence, given that they were obtained in a manner that violated the accused's rights.

The court considered whether the use of improperly and unfairly obtained information to elicit the accused's admissions rendered the statements inadmissible. The court had to balance the need to ensure a fair trial with the importance of allowing relevant evidence to be presented. It was determined that the accused's rights had been infringed upon, as the information used to elicit the admissions was obtained in a manner that was not only improper but also unfair. Consequently, the court ruled that the statements could not be admitted as evidence against the accused.

Given the court's finding that the statements were inadmissible, the evidence of the accused's admissions was excluded from the trial. The court's decision underscored the importance of protecting the rights of the accused and ensuring that evidence obtained through unfair means does not unfairly prejudice the accused's case. The outcome of the case highlights the need for law enforcement to adhere to proper procedures when obtaining evidence, particularly when dealing with individuals in custody. The final orders of the court were that the evidence of the accused's admissions would not be admitted in the trial against Rose.

Orders