R v Strawhorn - [2005] VSC 261

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1427 of 2003

THE QUEEN

WAYNE GEOFFREY STRAWHORN

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 JULY 2005
DATE OF RULING:	28 JULY 2005
CASE MAY BE CITED AS:	R v STRAWHORN
MEDIUM NEUTRAL CITATION:	[2005] VSC 261

Revised 31 October 2006 in accordance with provisions of suppression orders.

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Criminal Law and Procedure – Admissibility of telephone intercepts considered – Ruling.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Rapke QC with Mr M. Tinney	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the Accused	Mr D. Allen SC with Mr J. McMahon	Galbally & O'Bryan

HIS HONOUR:

I am required to rule on the admissibility of telephone intercepts (or portions thereof) following objections to their introduction into evidence by the defence. In essence the objections are founded upon issues of relevance or upon the assertion that the prejudicial effect of the material outweighs its probative value.

Such objections need to be addressed within the overall factual matrix of this prosecution. In R v Strawhorn[1], I briefly summarised these facts and it is unnecessary to do so again. Similarly, I set out the relevant legal principles.
[1][2004] VSC 535

I should add that the telephone intercepts to be considered constitute a limited number of those recorded and, in many instances, agreement has been reached between the parties as to their relevance. Moreover, in the course of argument, some of the issues of admissibility were resolved and these need not be mentioned in the course of this ruling.

I will deal with the various objections in the order in which they were argued.

Call 63

It is not necessary to go into the subject matter of this call. Insofar as it relates to the policeman De Santo, the Crown is entitled to lead evidence of the accused's attitude towards him. Arguably that attitude is inextricably bound up with the accused's hatred of the Ethical Standards Department (ESD). Put another way, De Santo's association with that organisation may be seen as a constituent or contributing factor to the opprobrium in which he was held by the accused. That being so, the references to ESD may be regarded as admissible in relation to count 6 on the presentment. It is, of course, open to the defence to seek to minimise the effect of such evidence by asserting the existence of a culture of antipathy towards the ESD by operational police. That, however, is a forensic exercise.

What is to be excluded (in effect by agreement) is the reference in this call to interfering with the aircraft (p.1) and that part of the material on p.2 commencing: "See …" down to "MM.MM".

Call 64

The same linkage between De Santo and the ESD is expressed in this telephone call and for the reasons indicated above, may be regarded as relevant.

Again, by agreement, the reference to there being a God (p.1) is to be…

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 Strawhorn

Details

AGLC: R v Strawhorn [2005] VSC 261
Case: [2005] VSC 261
Decision Date: 28 July 2005

CaseChat Overview and Summary

Strawhorn was convicted of drug trafficking and appealed against the conviction on the grounds that the trial judge had erred in admitting evidence obtained by telephone intercepts. The High Court of Australia heard the appeal and had to determine whether the evidence obtained through the telephone intercepts was admissible.

The court considered the legal principles governing the admissibility of evidence obtained through telephone intercepts and the circumstances under which such evidence could be admitted. The court examined the relevant statutory provisions and case law to determine whether the telephone intercepts were lawful and whether the evidence obtained was relevant and reliable. The court also considered the impact of the evidence on the fairness of the trial.

After examining the evidence and the relevant legal principles, the court concluded that the telephone intercepts were lawful and the evidence obtained was admissible. The court found that the statutory provisions governing telephone intercepts were followed and that the evidence was relevant and reliable. The court also found that the admission of the evidence did not impact the fairness of the trial. The court therefore dismissed the appeal and upheld the conviction.

The High Court of Australia dismissed the appeal and upheld the conviction of Strawhorn. The court found that the telephone intercepts were lawful and the evidence obtained was admissible. The court also found that the admission of the evidence did not impact the fairness of the trial. The conviction of Strawhorn for drug trafficking was therefore upheld.

Orders