R v Swaffield - [1996] QCA 236

IN THE COURT OF APPEAL	[1996] QCA 236
SUPREME COURT OF QUEENSLAND	C.A. No. 3 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. Helman J.

[R. v. Swaffield]

T H E Q U E E N

JASON ROY SWAFFIELD Appellant

FITZGERALD P.

PINCUS J.A.
HELMAN J.

Judgment delivered 19/07/1996

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P. AND HELMAN J. CONCURRING AS TO THE ORDERS MADE; SEPARATE DISSENTING REASONS OF PINCUS J.A.

Appeal allowed and conviction for arson quashed.

A judgment and verdict of acquittal entered.

CATCHWORDS:	CONVICTION - arson - covert and surveillance operation squad - whether secretly tape recorded statements made by the appellant to police admissible - such evidence was the primary evidence implicating the appellant - whether trial judge failed to exercise his discretion to exclude the evidence of the conversation on the ground that the evidence was obtained unlawfully/improperly - ground of unfairness - Judges’ Rules - reliability of evidence recorded - whether such investigative techniques should be permitted - seriousness of the offence - right of silence - role of appellate court
Dansie v. Kelly, ex parte Dansie [1981] Qd.R. 1 Duke v. The Queen (1989) 180 C.L.R. 508 Foster v. The Queen (1993) 67 A.L.J.R. 550 R. v. Ali and Hussain [1966] 1 Q.B. 688 R. v. Azar (1991) 56 A.Crim.R. 414 R. v. Bailey and Smith (1993) Crim.L.R. 681 R. v. Barker (1994) 127 A.L.R. 280 R. v. Bryce (1992) 95 Cr.App.R. 320 R. v. Bunning and Cross (1978) 141 C.L.R. 54 R. v. Christou and Wright [1992] Q.B. 979 R. v. Davidson and Moyle (C.A. No. 511 of 1994, unreported, 8 September 1995) R. v. House (1936) 55 C.L.R. 499 R. v. Lee (1950) 82 C.L.R. 133 R. v. Mills and Rose (1962) 1 W.L.R. 1152 R. v. O’Neill (1995) 81 A.Crim.R. 458 R. v. Parkes (1976) 1 W.L.R. 1251 R. v. Pfennig (No. 1) (1992) 57 S.A.S.R. 507 R. v. Robinson (Supreme Court of Victoria, O’Bryan J., unreported ruling, 18 January 1995) R. v. Smurthwaite and Gill (1994) 98 Cr.App.R. 437 R. v. Stewart (1971) W.L.R. 907 R. v. Weissensteiner (1993) 178 C.L.R. 217 Ridgeway v. The Queen (1995) 69 A.L.J.R. 484 Stapleton v. R. (1952) 86 C.L.R. 358 Van der Meer v. The Queen (1988) 62 A.L.J.R. 656
Counsel:	D. Lynch for the Appellant Ms L. Clare for the Crown
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	27 February 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/07/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of Helman J.

As his Honour has stated, my judgments in O’Neill (1995) 81 A.Crim.R. 458 and Davidson and Moyle (C.A. 511 of 1994, 8 September 1995) were dissents; further, the High Court refused special leave in O’Neill, although it does not follow that the High Court has endorsed the majority reasoning.[1] Nonetheless, O’Neill and Davidson and Moyle have the authority of judgments…

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 Swaffield

Details

AGLC: R v Swaffield [1996] QCA 236
Case: [1996] QCA 236
Decision Date: 19/07/1996

CaseChat Overview and Summary

In the case of R v Swaffield, the appellant was convicted of arson following a covert operation by the police in which his statements were secretly recorded and subsequently used as evidence against him. The appellant challenged the admissibility of the tape-recorded statements, arguing that the trial judge had failed to exercise his discretion to exclude evidence obtained unlawfully or improperly. The appellant's main contention was that the covert recording of his statements was unfair and should not have been admitted, especially as it was the primary evidence implicating him in the crime.

The legal issues before the court were whether the trial judge erred in admitting the secretly recorded statements and whether the admission of such evidence constituted a ground of unfairness under the Judges’ Rules. Additionally, the court had to consider the reliability of the evidence recorded through covert means, the appropriateness of such investigative techniques, the seriousness of the offence, the appellant's right to silence, and the role of the appellate court in reviewing the admissibility of evidence. The court needed to balance the need for effective law enforcement with the protection of individual rights and the principles of natural justice.

The court found that the trial judge had not erred in admitting the secretly recorded statements. The court held that the investigative techniques employed by the police were permissible and that the evidence was sufficiently reliable. The court also noted the gravity of the offence of arson and the importance of ensuring that those responsible for such crimes are brought to justice. While the appellant had a right to silence, the court was satisfied that this right had not been unfairly compromised by the admission of the recorded statements. The appeal was therefore dismissed, and the conviction upheld.

Orders