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R v Solomon

R v Solomon

Case [2005] SASC 265 20 July 2005

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SOLOMON
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Sulan)
20 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal against conviction - the appellant was convicted in the District Court on five counts of taking part in the sale of cocaine contrary to the Controlled Substances Act 1984 - issues on appeal - the validity of the warrants authorising the interception of telecommunications - the admissibility of a tape recording of a conversation - the Judge's directions regarding voice comparison by the jury when listening to recordings of intercepted telecommunications - the Judge's directions regarding the voice comparison evidence of a police officer regarding the intercepted telecommunications - the Judge's directions on the elements of the offence - the Judge's directions on the cross-admissibility of evidence between counts - the Judge's directions on evidence of uncharged acts - the Judge's directions on the finding of guilt on one count when considering another count - the failure by the prosecution to comply with its obligation of disclosure - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(d); Telecommunications (Interception) Act 1979 (Cth) s 5D, s 46, s 49; Telecommuniations (Interception) Regulations 1987 (Cth) ; Summary Offences Act 1953 s 74D, s74E(1)(b), referred to.
R v Neiterink (1999) 76 SASR 56; Butera v Director of Public Prosecutions (1987) 164 CLR 180; Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; Bulejcik v The Queen (1996) 185 CLR 375, applied.
Smith v The Queen (2001) 206 CLR 650, distinguished.
Director of Public Prosecutions (No 2 of 1995) (1995) 65 SASR 508, discussed.
Domican v The Queen (1992) 173 CLR 555; R v Harris (No 3) [1990] VR 310; R v Mouhalos (1998) 197 LSJS 483; R v Leung (1999) 47 NSWLR 405; R v Menzies [1982] 1 NZLR 40; Deng (1996) 91 A Crim R 80; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392, considered.

R v SOLOMON
[2005] SASC 265
Court of Criminal Appeal: Doyle CJ, Duggan and Sulan JJ

DOYLE CJ: Mr Solomon appeals against convictions recorded by the District Court.
Mr Solomon was tried before a jury and convicted on its verdict on five counts of taking part in the sale of cocaine, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA).
He was found not guilty by direction of the Judge on one count. He was found not guilty by the jury on one count. The jury were unable to agree on another count.
Mr Solomon was also charged jointly with his brother, Andrew Solomon, and with Max Serkoshian on two counts of taking part in the sale of cannabis, contrary to the same section. All three of them were found…

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 Solomon

Details

AGLC: R v Solomon [2005] SASC 265
Case: [2005] SASC 265
Decision Date: 20 July 2005

CaseChat Overview and Summary

In the case of R v Solomon, the appellant was convicted in the District Court on five counts of participating in the sale of cocaine, in breach of the Controlled Substances Act 1984. The appellant appealed against the conviction, raising various issues pertaining to the trial process, including the validity of the warrants authorising the interception of telecommunications, the admissibility of a tape recording of a conversation, and the directions given by the Judge to the jury regarding voice comparison, the elements of the offence, cross-admissibility of evidence, evidence of uncharged acts, and the finding of guilt on one count when considering another. Additionally, the appeal addressed the failure by the prosecution to comply with its obligation of disclosure.

The legal issues before the court were significant and encompassed multiple aspects of the criminal trial process. The court had to determine whether the warrants authorising the interception of telecommunications were valid, and if the recorded conversation was admissible as evidence. Furthermore, the court assessed the adequacy of the Judge's directions to the jury regarding voice comparison, the elements of the offence, cross-admissibility of evidence, evidence of uncharged acts, and the consideration of one count when evaluating another. The court also needed to evaluate whether the prosecution had complied with its obligation to disclose potentially relevant material to the defence.

The court found that although there were some imperfections in the Judge's directions to the jury, there was no error of law made by the trial Judge. The court held that there was no reason to apprehend a risk of a miscarriage of justice. The appeal against conviction was dismissed, highlighting the importance of the police complying with their duty to inform the Director of Public Prosecutions of all potentially relevant and disclosable material. The decision emphasised the dangers associated with a failure by the police to provide the Director with all the information which should be provided, as it could potentially lead to a miscarriage of justice and necessitate the entire case being heard again.

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

What happened in this case illustrates the importance of the police complying with their duty to ensure that the Director of Public Prosecutions is in a position to make appropriate disclosure to the legal representatives of the accused. It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director. If the Director makes that decision, the Director can then consider whether anything, and if so what, should be done to inform the legal representatives of the accused that there is material that is being withheld. What happened in this case illustrates the dangers associated with a failure by the police to provide the Director with all the information which should be provided. Almost at the end of the case counsel asked questions, based on the assumption of full disclosure, that could have led to answers causing a miscarriage of justice, and the need for the whole case to be heard again. The interests of justice, and the public interest in the efficient disposition of cases before the court, combine to require careful attention by the police to their duty to inform the Director adequately of all material that might have to be disclosed, leaving it to the Director to decide whether there are good grounds for withholding any material, and what should be done in that event.Conclusion For those reasons, although there are imperfections in the Judge’s directions to the jury, I am satisfied that there was no error of law made by the trial Judge, and that there is no reason to apprehend a risk of a miscarriage of justice. The appeal against conviction should be dismissed. DUGGAN J: In my view this appeal should be dismissed. I agree with the reasons of the Chief Justice. SULAN J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Solomon [2005] SASC 265

Most Recent Citation

R v B, KM [2009] SADC 47

Cases citing this decision · 19 of 19 shown

Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 2)
[2022] NSWLEC 56 Para 17

…efore the hearing: at [17]. The test for whether to admit the report was held to be whether there will be a miscarriage of justice: R v Solomon (2005) 92 SASR 331 at 358-9; [115]. Justice Refshauge held that the inability of the defendant’s lawyers to challenge the evidence properly by having their own expert review…
Davey v Tasmania
[2020] TASCCA 12

…62In R v Solomon [2005] SASC 265, 92 SASR 331, the appellant was convicted of drug offences proven in part by the tender of 120 intercepted telephone calls. A detective was permitted to give evidence that, having listened at length to the recordings of the calls, including for the purpose of preparing transcripts,…
Steen v The Queen
[2020] SASCFC 60 Para 10

…because when the judge gave his ruling he said that it was subject to such argument as he would later hear in relation to voice identification. [1] (2005) 92 SASR 331.…
Director of Public Prosecutions v Westbrook (a pseudonym) (Ruling 1)
[2020] VSC 290

…lic Prosecutions (Cth) (2018) 359 ALR 142 – Lee v The Queen (2014) 253 CLR 455 – R v Lipton (2011) 82 NSWLR 123 – R v Solomon (2005) 92 SASR 331 – Ex parte Brown; Re Tunstall (1966) 67 SR(NSW) 1 – Evidence Act 2008 (Vic) s 130.…
R v BARRETT (No 2)
[2019] SASC 92 Para 10

…Relying on Flanagan v Commissioner of the AFP [1996] FLR 149 and R v Solomon (2005) 92 SASR 331 the accused concedes that it would have been sufficient if the warrant simply referred to the name of the offence and the relevant provision of the Criminal Law Consolidation Act 1935 (SA). However, as it is, the particula…
Hall v SA Police
[2019] SADC 5 Para 10

…s including those in respect of any other proceedings, whether they be extradition proceedings, or civil proceedings for Defamation. [14] R v Solomon (2005) 92 SASR 331; Mallard v R (2005) 224 CLR 125; and Grey v R (2001) HCA 65.…
R v Tran
[2017] SADC 128 Para 17

…State of Western Australia ,[14] R v Lipton ,[15] R v Ulman-Naruniec .[16] [11] (2003) 56 NSWLR 625 at [19]. [12] (1993) 96 Cr App R 1. [13] (2005) 92 SASR 331 at [116]. [14] (2005) 155 A Crim R 528 at [57]. [15] (2011) 82 NSWLR 123 at [80] and [106]. [16] (2003) 143 A Crim R 531 at [140].…
R v Phan
[2017] SASCFC 70 Para 15

…ve the jury certain directions and warnings as to the use of that evidence and I will hear the parties on that topic at the appropriate time. [5] (2005) 92 SASR 331. [6] T110.…
R v Medich (No 6)
[2016] NSWSC 1001 Para 24

…blic interest in the efficient disposition of cases before the court, necessitate careful attention being paid to the duty of disclosure: R v Solomon [2005] SASC 265; (2005) 92 SASR 331 at [116] per Doyle CJ (with whom Duggan and Sulan JJ agreed) cited in R v Lipton [2011] NSWCCA 247; (2012) 82 NSWLR 123 at [92].…
R v Alqudsi
[2015] NSWSC 1615 Para 27

…be sufficiently identified to enable the determination to be made whether the offence is a “serious offence” as required by s 49: R v Solomon [2005] SASC 265 at [26]-[27] per Doyle CJ (Duggan and Sulan JJ agreeing); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 197 (Beaumont, Ryan a…
R v TK (No 2)
[2015] ACTSC 87 Para 1

…The test is, it seems to me, whether there will be a miscarriage of justice. See R v Solomon (2005) 92 SASR 331 at 358-9; [115].…
Director of Public Prosecutions v Waleed Haddara (Ruling No 1)
[2012] VSC 276 Para 1

…[1], R v Nguyen [2] and R v Solomon .[3] [1](1995) 185 CLR 385 at 383 Brennan CJ, and at 395, Toohey and Gaudron JJA. [2](2002) 131 A Crim R 341. [3][2005] SASC 265.…
R v Lipton
[2011] NSWCCA 247 Para 10

…In R v Solomon [2005] SASC 265; (2005) 92 SASR 331 the accused complained on appeal, following his conviction by a jury of five counts of taking part in the sale of cocaine contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA), that incomplete disclosure by the prosecution led to a situation in which i…
R v Mansfield
[2011] WASCA 132

…] HCA 17; (2010) 241 CLR 177 R v Rivkin (Unreported, NSWSC, 70065 of 2002, 10 April 2003) R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 R v Solomon [2005] SASC 265; (2005) 92 SASR 331 R v Staines [1997] 2 Cr App R 426 R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77 Ryan v Triguboff [1976] 1 NSWLR 588 SEC v Monarch…
R v Andrews
[2010] SASCFC 5 Para 21

…privilege of the Executive, to determine whether evidential material should be produced or may be withheld in the public interest.[4] [3] R v Solomon (2005) 92 SASR 331 at [116]; section 10A of the Director of Public Prosecutions Act 1991 (SA). [4] Sankey v Whitlam (1978) 142 CLR 1 at 38, 58-59, 95-96; R v Ward [1993…
R v B, KM
[2009] SADC 47 Para 13

…o unfairness to the defendant in admitting both conversations. Their contents are not in dispute: see R v Blayney (2002) 220 LSJS 102 and R v Solomon (2005) 92 SASR 331 at [38]. Furthermore, there is no evidence that the police officers were aware that the method of recording which was employed breached s 74D. On the…
R v Jesson
[2009] NTSC 13

…terception and Access) Act 1979 (Cth), s 46A Trespass Act , s 13(1A) CITATIONS: Followed : Bulejcik v The Queen (1995–1996) 185 CLR 375 R v Solomon (2005) 92 SASR 331 Ridgeway v The Queen (1995) 184 CLR 19 Referred to : Bunning v Cross (1977–1978) 141 CLR 54 Carr v Western Australia (2007) 176 A Crim R 555 Chow v The…
Whybrow v R
[2008] NSWCCA 270

…s 23 December 2011. LEGISLATION CITED: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 CASES CITED: R v Tzanis [2005] NSWCCA 274 R v Solomon [2005] SASC 265; (2005) 153 A Crim R 32 R v Chisari [2006] NSWCCA 19 R v Previtera (1997) 94 A Crim R 76 R v Daetz [2003] NSWCCA 216; (2003) 137 A Crim R 398 Alamedd…
R v Korgbara
[2007] NSWCCA 84

…ta; R v Niga [2003] NSWCCA 6 R v Rivadavia [2004] NSWCCA 284; (2004) 61 NSWLR 63 R v Smith [1984] 1 NSWLR 462 R v Solomon [2005] SASC 265; (2005) 92 SASR 331 R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1 R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 State v Free 493 So. 2d 781 (1986) US v Smith 869 F. 2d 3…

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Cases cited in this decision · 11 of 11 shown

Smith v The Queen
[2017] HCA 19 Para 20

…Mr Henchliffe relied on the decision of the High Court in Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650. That was a case in which the accused was charged with robbery in company. There was no doubt that a robbery had taken place. The prosecution case was that the appellant was the person who was shown in photog…
R v Leung
[2013] NSWSC 259 Para 10

…jury to consider: R v Harris (No.3) [1990] VR 310 at 318, Ormiston J; R v Mouhalos (1998) 197 LSJS 483 at 489, Doyle CJ; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405 at [37] – [44] Simpson J.…
Re Avory; Question of Law Reserved (No 1 of 2003)
[2003] SASC 430 Para 10

…ntly, participants in the operation or who have the appropriate causal connection therewith. In Re Avory ; Question of Law Reserved (No. 1 of 2003) [2003] SASC 430; (2003) 87 SASR 392 Perry J, with whom the other members of the Court agreed, referred to the case just cited, to a 1996 decision on the same topic, an…
Smith v The Queen
[2001] HCA 50

…ons (1987) 164 CLR 180; Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; Bulejcik v The Queen (1996) 185 CLR 375, applied. Smith v The Queen (2001) 206 CLR 650, distinguished. Director of Public Prosecutions (No 2 of 1995) (1995) 65 SASR 508, discussed. Domican v The Queen (1992) 173 CLR 555; R v…
R v Leung
[1999] NSWCCA 287 Para 10

…available for the jury to consider: R v Harris (No.3) [1990] VR 310 at 318, Ormiston J; R v Mouhalos (1998) 197 LSJS 483 at 489, Doyle CJ; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405 at [37] – [44] Simpson J.…
Bulejcik v The Queen
[1996] HCA 50 Para 23

…In Bulejcik v The Queen (1996) 185 CLR 375 Toohey and Gaudron JJ had reason to consider evidence as to voice comparison. In the course of their reasons they distinguished between voice identification and voice comparison, and made certain comments about the circumstances in which evidence of voice comparison is consi…
Flanagan v Commissioner of the Australian Federal Police
[1995] FCA 1206 Para 27

…That, in effect, is what the Full Court of the Federal Court of Australia decided in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 197, where the Court said that: … what is required by s 49(7) is a statement of particulars which identifies the alleged or suspected offences in a concep…
Butera v Director of Public Prosecutions (Vic)
[1987] HCA 58 Para 12

…The issues raised by this evidence were considered by the High Court in Butera v Director of Public Prosecutions (1987) 164 CLR 180, and in my opinion are authoritatively determined by that decision.…
Domican v R
[1992] HCA 13

…CLR 375, applied. Smith v The Queen (2001) 206 CLR 650, distinguished. Director of Public Prosecutions (No 2 of 1995) (1995) 65 SASR 508, discussed. Domican v The Queen (1992) 173 CLR 555; R v Harris (No 3) [1990] VR 310; R v Mouhalos (1998) 197 LSJS 483; R v Leung (1999) 47 NSWLR 405; R v Menzies [1982] 1 NZLR 40; Deng (19…
R v Nieterink
[1999] SASC 560 Para 20

…sexual offences, especially involving children as the victims, throws light on the relationship between the accused and the victim: see R v Nieterink (1999) 76 SASR 56 at 73. The concept of a relationship between people is not a precise one. In such cases it could invite what is sometimes called propensity reasoning…
[1982] 1 NZLR 40
[1982] 1 NZLR 40 Para 15

…not satisfied that the transcript correctly sets out what they heard on the tape. Their honours approved of observations by Cooke J in R v Menzies [1982] 1 NZLR 40 at 49, where his Honour gave examples of situations in which a transcript of a tape recorded conversation might be admitted, one of those situations be…

Legislation cited in this decision · 4

Controlled Substances Act 1984 (SA)
32(1)(d) 2 mentions (from Para 2)
Summary Offences Act 1953 (SA)
74D 2 mentions (from Para 30)
Telecommunications (Interception) Act 1979 (Cth)
5D 2 mentions (from Para 18)
Telecommunications (Interception and Access) Regulations 1987 (Cth)
1 mention (from Para 25)