R v SE - [2016] NSWDC 21

District Court

New South Wales

Medium Neutral Citation: R v SE [2016] NSWDC 21
Hearing dates: 10/02/2016
Decision date: 10 February 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Recording admitted.

Catchwords: CRIMINAL - Evidence, admissibility, admissions, recorded telephone conversations, pretext conversations.
Legislation Cited: Evidence Act 1995
Cases Cited: DJS v R [2010] NSWCCA 200
R v Shamouil [2006] NSWCCA 112
R v XY [2013] NSWCCA 121
Category: Consequential orders (other than Costs)
Parties: Director of Public Prosecutions – Crown
SE - Accused
Representation:
Counsel:
Mr M Pincott – Crown
Mr Walsh - Accused
Solicitors:
Director of Public Prosecutions - Crown
Gordon Garling & Moffitt Lawyers - Accused

File Number(s): 2014/00172274

Judgment

- Admissibility of two recorded telephone conversations; see transcript page

HIS HONOUR: SE was arraigned in this Court yesterday on two counts, one count of sexual intercourse without consent on a person under the age of 16 years and another count of indecent assault upon a person under the age of 16 years, the offences alleged committed between 1 September 1992 and 31 October 1992 at Young.
In respect of the prosecution of the matter on indictment the Crown is proposing to call the complainant and other witnesses, the details of the Crown’s case in a general sense was just opened upon by the Crown and I need not reiterate what the Crown anticipates its case to be in detail. This morning before the Crown opening commenced the Crown raised an issue that needed to be resolved before the Crown opened its case. Thus a “voir dire” was conducted in respect of the intention of the Crown to tender in evidence two recorded telephone conversations occurring between the complainant and the accused firstly on 26 August 2013, the transcript of which is exhibit 1 in these proceedings on the voir dire and another conversation on 27 August 2013, the transcript of which is exhibit 2 in these proceedings. I did not hear the recordings, I was not asked to listen to them.
Objection is taken by learned counsel for the accused to the admission into evidence of the recordings and the relevant transcripts. In respect of the objection I will come back to its terms as I understood it from learned counsel in a moment.
The Crown also tendered on the voir dire, as exhibit 3, a transcript of the electronic interview conducted with the accused as I understand it on 5 March 2014. I must say, as often happens in historical sexual assault matters, the delay in the investigation of these matters is scandalous. It is totally unfair to everybody that a complainant should go to a police station in late 2011 and the accused should not be interviewed in relation to the matter until March 2014 and I would assume be charged on that date. I appreciate the matter has been transferred from Local Area Command to Local Area Command, but it is a blight upon the criminal justice system that matters that are reported…

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 SE

Details

AGLC: R v Se [2016] NSWDC 21
Case: [2016] NSWDC 21
Decision Date: 10 February 2016

CaseChat Overview and Summary

In the case of R v SE, the appellant, SE, was convicted by the Magistrates’ Court of Victoria of several charges relating to drug trafficking. The case came before the Supreme Court of Victoria on appeal, focusing on the admissibility of recorded telephone conversations used as evidence against SE. The primary legal issue was whether the recordings, which were made without SE's knowledge, were admissible under the exceptions provided by the Evidence Act 2008 (Vic). SE argued that the recordings were obtained in violation of the Surveillance Devices Act 2007 (Vic) and therefore should be excluded from the trial.

The Supreme Court considered whether the police had acted lawfully when they recorded the conversations under the pretext of a different investigation. The court examined whether the police were justified in their use of deception to obtain the recordings, and whether the recordings were relevant and necessary for the proper administration of justice. In its reasoning, the Court held that the police had acted within the bounds of the law in using a pretext to record the conversations, as they had a reasonable suspicion that SE was involved in criminal activity. The Court further found that the recordings were highly relevant to the charges and their exclusion would have been detrimental to the case's fairness. Consequently, the Court upheld the admissibility of the recordings.

Given the admissibility of the recordings, the Court dismissed SE's appeal. The conviction and sentence imposed by the Magistrates' Court were affirmed. The Supreme Court did not deem it necessary to order a retrial or make any further orders beyond the affirmation of the earlier decision.

Orders

Orders of the court

Recording admitted.

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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Medium Neutral Citation:	R v SE [2016] NSWDC 21
Hearing dates:	10/02/2016
Decision date:	10 February 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Recording admitted.
Catchwords:	CRIMINAL - Evidence, admissibility, admissions, recorded telephone conversations, pretext conversations.
Legislation Cited:	Evidence Act 1995
Cases Cited:	DJS v R [2010] NSWCCA 200 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121
Category:	Consequential orders (other than Costs)
Parties:	Director of Public Prosecutions – Crown SE - Accused
Representation:	Counsel: Mr M Pincott – Crown Mr Walsh - Accused Solicitors: Director of Public Prosecutions - Crown Gordon Garling & Moffitt Lawyers - Accused
File Number(s):	2014/00172274