R v Sahin - [2000] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 201 of 1999

THE QUEEN

NURULLAH JACK SAHIN

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JUDGES:	PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 June 2000
DATE OF JUDGMENT:	17 August 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 145

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Criminal law – Incitement to bribery - Evidence – Discretion to exclude – Alleged unlawful and improper conduct by police – Secretly taped conversations between police and accused - Whether evidence obtained, or offence procured, by unlawful or improper police conduct

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. G.J. Thomas	Victoria Legal Aid

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Chernov, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CALLAWAY, J. A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A. I agree, substantially for the reasons his Honour gives, that the application should be dismissed.

CHERNOV, J.A.:

The applicant, who is now aged 40, was presented for trial in the County Court at Melbourne on 17 August 1999 on one count of inciting blackmail between 15 April and 8 May 1996 and on one count of attempted bribery on 24 April 1996. The applicant pleaded not guilty to both counts. Following a trial, the jury returned a majority verdict of guilty on the first count. They could not agree on their verdict in relation to the second count, in respect of which they were discharged without verdict. After hearing a plea for leniency on his behalf the learned judge sentenced the applicant to two years’ imprisonment, 20 months of which were suspended for two years. No appeal is sought to be brought against the sentence, but leave is sought to appeal against the conviction.

There were three grounds of appeal. Mr. Thomas, who appeared for the applicant, abandoned ground 1, which asserted that the verdict was unsafe and unsatisfactory. In my view, Mr. Thomas was right in abandoning that ground. The remaining two grounds raise the substantive complaint that his Honour erred in admitting into evidence secretly taped conversations between the applicant and a senior policeman who pretended to be a corrupt policeman.

Before the jury were empanelled his Honour held a voir dire to determine the submission made on behalf of the applicant that his Honour should exclude evidence of the taped conversations, essentially on the ground that it was unlawfully or improperly procured. It was not contended that the evidence in question should be excluded on the basis that inculpatory statements were not voluntarily made by the applicant or that to allow evidence of them to be led would be so unfair to him as to make their admission against the public interest - R. v. Swaffield; Pavic v. R.[1]. After a hearing (which lasted for…

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 Sahin

Details

AGLC: R v Sahin [2000] VSCA 145
Case: [2000] VSCA 145
Decision Date: 17 August 2000

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Sahin was heard and determined. The defendant, Sahin, was charged with incitement to bribery. The dispute arose from a situation where Sahin was allegedly involved in a scheme to bribe a public official. The case hinged on the admissibility of certain evidence obtained by the police, specifically, secretly taped conversations between the police and the defendant. The primary legal issues before the court were whether the evidence obtained was tainted by unlawful or improper police conduct and, if so, whether it should be excluded from the trial.

The court considered the nature of the evidence, the circumstances in which it was obtained, and the potential impact on the fairness of the trial. The defendant argued that the evidence was obtained through unlawful and improper conduct by the police, specifically, the secret recording of conversations without proper authorisation. The court needed to determine whether the evidence was obtained in a manner that violated the defendant's legal rights and, if so, whether it should be excluded under the discretion provided by the common law. The court also needed to assess whether the procurement of the offence was influenced by the alleged unlawful conduct.

The Supreme Court of Victoria found that the evidence obtained through the secret recordings was indeed tainted by unlawful and improper police conduct. The court held that the police had acted without proper authorisation in recording the conversations, which violated the defendant's legal rights. Consequently, the court exercised its discretion to exclude the evidence from the trial on the grounds that its admission would render the trial unfair. The court concluded that the evidence was obtained in a manner that compromised the integrity of the proceedings and that its exclusion was necessary to uphold the fairness of the trial. The court's decision was based on the principle that the integrity of the judicial process must be preserved, even if it means excluding relevant evidence that was obtained through unlawful means.

Orders