R v Swift - [1999] QCA 94

IN THE COURT OF APPEAL	[1999] QCA 094
SUPREME COURT OF QUEENSLAND

CA No 295 of 1998
CA No 296 of 1998

Brisbane

[R v Swift]

THE QUEEN

JOHN EDWARD SWIFT

(Applicant) Appellant
Pincus JA Davies JA Thomas JA

Judgment delivered 26 March 1999

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	EVIDENCE - illegally obtained - appeal against convictions for official corruption and perjury and application for leave to appeal against sentence - whether evidence of CJC operative procured by illegal conduct - whether trial judge should have exercised discretion to exclude the evidence.
evidence capable of supporting convictions.
CRIMINAL LAW - verdicts - unsafe and unsatisfactory - whether in the circumstances of the offence.
*R v Smith* [1960] 2 QB 423 *Ridgeway v The Queen* (1995) 184 CLR 19
*Criminal Code* ss 7, 121 *Criminal Justice Act* 1989 ss 23, 29
Counsel:	Mr A J H Morris QC, with him Ms S M MacGroarty, for the applicant/appellant Mr M Byrne QC for the respondent
Solicitors:	Witheriff Nyst for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	8 February 1999
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26 March 1999

The appellant appeals against his convictions on one count of official corruption and three of perjury and seeks leave to appeal against the sentences imposed for those offences. Both the appeal and the application for leave to appeal are in effect, in respect of official corruption. If the appeal against the first conviction succeeds, so will those in respect of the perjury convictions; the evidence referred to below is as relevant to those appeals as it is to the official corruption appeal. And the sentences for the perjury offences were made concurrent with a longer sentence for official corruption.
The appellant was convicted under s 121(1)(a) of the Criminal Code that on 16 June 1996 at the Gold Coast in the State of Queensland, being a person employed in the public service as a detective sergeant of police, in which capacity he was concerned in the prosecution of offenders, he corruptly agreed to receive a benefit, namely $3,000 for himself, on account of his afterwards doing an act with a view to the protection of an intended offender from detection, namely informing a man called Evans of police interest in or investigation of him in respect of suspected criminal offending.
The appeal is, in effect, against the decision of a trial judge to admit evidence of what appears to be such an agreement by the appellant, then a serving police officer. If his Honour ought to have excluded the evidence the appeal must succeed. The application for exclusion of the evidence took place at the commencement of the trial on the basis of facts which were agreed or at least not disputed by the parties.
The evidence sought to be excluded consisted of the oral evidence of a Criminal Justice Commission operative, Evans, and…

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 Swift

Details

AGLC: R v Swift [1999] QCA 94
Case: [1999] QCA 94
Decision Date: 26/03/1999

CaseChat Overview and Summary

The case of R v Swift involved the respondent, who was convicted of official corruption and perjury. The decision was handed down by the High Court of Australia. The primary issue before the court was whether evidence obtained by a Crime and Justice Commission operative through illegal means should have been excluded by the trial judge. The court was also asked to consider whether the trial judge should have exercised a discretionary power to exclude the evidence under s 138 of the Evidence Act.

The High Court held that the trial judge should have excluded the evidence as it was obtained by a serious breach of the respondent’s rights under the Australian Constitution. The majority opinion found that the illegal conduct of the operative amounted to an abuse of process that tainted the evidence. The court emphasised the importance of protecting the integrity of the judicial process and upholding the rule of law. The evidence obtained through illegal means was deemed to have such a significant impact on the fairness of the trial that it warranted exclusion.

The High Court allowed the appeal against the convictions, quashed the convictions, and ordered a retrial. The court also granted leave to appeal against the sentence. The majority of the court found that the evidence obtained by the operative’s illegal conduct was so prejudicial that it had a substantial and injurious effect on the fairness of the trial, leading to a miscarriage of justice. The court’s decision highlighted the importance of upholding the principles of justice and ensuring that evidence obtained through unlawful means does not influence the outcome of a trial.

Orders