R v TD - [2013] NSWCCA 337

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v TD [2013] NSWCCA 337
Hearing dates: 11 December 2013
Decision date: 20 December 2013
Before: Hoeben CJ at CL at [1]; Simpson J at [2]; Hall J at [50]
Decision:
(i) The Director's appeal is upheld;
(ii) The ruling of the District Court that evidence of the conversations between UCO535 and the respondent not be admitted is vacated.

Catchwords: CRIMINAL LAW - solicit to murder
EVIDENCE - Crown appeal - Criminal Appeal Act 1912, 5F(3A) - controlled operation - Law Enforcement (Controlled Operations) Act 1997 - Authority to conduct controlled operation - nature of controlled activity - undercover police operative - communications with accused recorded pursuant to Authority - whether evidence unlawfully obtained - Evidence Act 1995, s 138 - whether Authority validly granted - whether activity within term of Authority - Code of conduct - evidence not unlawfully obtained - ruling excluding evidence vacated
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997
Law Enforcement (Controlled Operations) Regulation 2007
Law Enforcement (Controlled Operations) Regulation 2012
Cases Cited: Gedeon v The Commissioner of the NSW Crime Commission [2008] HCA 43; 236 CLR 120
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
Category: Principal judgment
Parties: Regina (Appellant)
TD (Respondent)
Representation: Counsel:
V Lydiard (Appellant)
M Kumar (Commissioner of Police)
C Davenport SC/S Bouveng (Respondent)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Appellant)
I V Knight - Crown Solicitor (Commissioner of Police)
Cater & Blumer (Respondent)

File Number(s): 2012/160490
Publication restriction: Pursuant to s 34(2)(b) of the Law Enforcement and National Security (Assumed Identities) Act 2010, that there be no publication or other disclosure of the assumed identity of the undercover operative or of any document or evidence or other information that identifies, or might facilitate the identification of, the assumed identity of the undercover operative, except as is necessary for the proper condcut of the proceedings Non publication of any information or material that may lead to the identification of any children (s 15A Children (Criminal Proceedings) Act 1987)
Decision under appeal

Date of Decision:

2013-09-05 00:00:00

Before:

Jeffreys DCJ

File Number(s):

2012/160490

Judgment

HOEBEN CJ at CL: I agree with Simpson J.

SIMPSON J: This is an appeal by the Director of Public Prosecutions ("the Director") against a ruling by Jeffreys DCJ on 5 September 2013, refusing to admit certain evidence proposed to be led by the Crown in a criminal trial. Such an appeal is permitted where the ruling "eliminates or substantially weakens the prosecution's case": Criminal Appeal Act 1912, s 5F(3A). There is no issue in this case that the ruling in question is of that character. This Court accordingly has jurisdiction to hear and determine the appeal.

The issues raised on the appeal concern an Authority issued under the Law Enforcement (Controlled Operations) Act 1997 ("the LE(CO) Act").

The Law Enforcement (Controlled Operations)…

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 TD

Details

AGLC: R v TD [2013] NSWCCA 337
Case: [2013] NSWCCA 337
Decision Date: 20 DECEMBER 2013

CaseChat Overview and Summary

In this appeal, the respondent was charged with soliciting another to murder a police officer. The trial judge excluded certain evidence of communications between the respondent and an undercover police operative, finding that the evidence was obtained in a manner that contravened the Code of Conduct attached to the Authority to conduct a controlled operation. The Crown appealed the decision to exclude the evidence.

The legal issues for the court were whether the evidence obtained was unlawfully obtained and whether the Authority to conduct the controlled operation was validly granted. The court had to consider whether the activity was within the terms of the Authority and whether the evidence was obtained in a manner that complied with the Code of Conduct. The court also considered whether the evidence should be excluded under section 138 of the Evidence Act 1995.

The court held that the evidence was not unlawfully obtained as it was in accordance with the Code of Conduct. The court found that the Authority to conduct the controlled operation was validly granted and the activity was within the terms of the Authority. The court noted that the Code of Conduct was not intended to exclude all evidence obtained during a controlled operation but rather to ensure that the operation was conducted in a manner that was fair and did not undermine the administration of justice. The court held that the trial judge's ruling excluding the evidence was vacated.

The court's decision to vacate the ruling excluding the evidence has significant implications for future cases involving controlled operations and the admissibility of evidence obtained during such operations. The court's emphasis on the importance of compliance with the Code of Conduct highlights the need for law enforcement agencies to ensure that their operations are conducted in a manner that is fair and does not undermine the administration of justice.

Orders