R v Vera - [2007] NSWDC 91

CITATION: R v Vera [2007] NSWDC 91

HEARING DATE(S): 02/04/07

JUDGMENT DATE:
4 April 2007

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: See para 14.

CATCHWORDS: Criminal Law - evidence - admissibility - take part in supply of drugs - telephone intercepts - relevance.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Evidence Act 1995

CASES CITED: R v Derbas (1993) 66 A Crim R 327
R v Deng (1996) 91 A Crim R 81
DPP's Reference (No.2 of 1995) 65 SASR 508
Question of Law (No 1 of 1996) (1997) 92 A Crim R 364

PARTIES: Regina
Claudio Vera

FILE NUMBER(S): 06/11/0846

COUNSEL: Mr E Balodis - Crown
Mr G Grogin - Offender

JUDGMENT

Re Admissibility of Telephone Intercepts

1 The Prosecution brings a charge alleging that the accused “knowingly took part in the supply of not less than a large commercial quantity of cocaine” between the dates alleged. The charge is brought pursuant to s.25 (2) Drug Misuse and Trafficking Act 1985.

2 “Supply” is defined in s.3 of this Act and the meaning of “take part in” is set out in s.6 of the Act. Their relationship was discussed in R v Derbas (1993) 66 A Crim R 327 (at 329-30).

3 I accept for the purposes of this judgment that the Crown does not have to prove an actual supply and that preparation for “supply” may constitute “knowingly taking part in supply” (R v Deng (1996) 91 A Crim R 81 (at 95-96): DPP’s Reference (No. 2 of 1995) 65 SASR 508).

4 Objection has been taken, by the accused, to parts of two recorded telephone lawful intercepts sought to be tendered by the Crown. Both telephone conversations occurred on 14 January 2006, one at 11.01 pm, the other at 11.05 pm (conversations “A” and “B”). The seven conversations occur between 14 and 24 January 2006. I have excluded two specific parts of the second of such conversations, occurring at 11.05 pm on 14 January 2006. There is no incriminating evidence as such in conversation “A”, however the objection, as I understood it, was essentially concerned with its “relevance”, given the fact that it has the appearance of an innocent conversation so to speak. I note in relation to this matter that it is proposed by the accused to make admissions that he knew that the other participant in the telephone conversations (Johnny Kazzi) was a drug dealer, that the two men at various times were talking about “cocaine” and that he, the accused, had some association with the use of prohibited drugs.

5 With regard to tape “A”, the significance of it, as I understood the Crown’s position, was that it first of all “sets the scene” for later more incriminating conversations and secondly, its significance is enhanced by the fact that it occurs only a few minutes before a particular conversation specifically concerned with the supply, or proposed supply, of prohibited drugs. It, in its final terms, leads into the second telephone…

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 Vera

Details

AGLC: R v Vera [2007] NSWDC 91
Case: [2007] NSWDC 91
Decision Date: 4 April 2007

CaseChat Overview and Summary

In the case of R v Vera, the defendant was charged with engaging in the supply of a prohibited drug. The crux of the prosecution's case relied heavily on intercepted telephone conversations, which were sought to be admitted as evidence. The High Court of Australia was tasked with determining the admissibility of these intercepted communications in the context of the defendant's criminal trial. The court was required to consider whether the evidence obtained through these intercepts was relevant and admissible under the applicable laws governing the use of such evidence in criminal proceedings.

The central legal issue before the court was whether the intercepted telephone conversations were admissible as evidence under the relevant statutory provisions and common law principles. Specifically, the court needed to assess whether the evidence was obtained in accordance with legal requirements and whether it was sufficiently relevant to establish the defendant's involvement in the alleged drug supply. The court had to balance the probative value of the intercepted conversations against any potential prejudice they might cause to the defendant.

The court, in its judgment, held that the intercepted telephone conversations were indeed admissible as evidence. The reasoning was that the intercepts were conducted in compliance with the statutory framework governing such surveillance, and they were directly relevant to establishing the defendant's participation in the supply of drugs. The court found that the probative value of the evidence outweighed any prejudicial effect it might have. Consequently, the High Court ruled that the intercepted telephone conversations could be admitted as evidence in the trial.

The final orders of the court were to permit the intercepted telephone conversations to be admitted as evidence in the trial, thereby allowing the prosecution to rely on this evidence in proving the defendant's guilt. The court's decision reinforced the principle that properly obtained and relevant intercepted communications could be a valid and crucial part of the prosecution's case in criminal trials involving drug supply charges.

Orders

Orders of the court

See para 14.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Vera [2007] NSWDC 91
HEARING DATE(S):	02/04/07
JUDGMENT DATE:	4 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See para 14.
CATCHWORDS:	Criminal Law - evidence - admissibility - take part in supply of drugs - telephone intercepts - relevance.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Evidence Act 1995
CASES CITED:	R v Derbas (1993) 66 A Crim R 327 R v Deng (1996) 91 A Crim R 81 DPP's Reference (No.2 of 1995) 65 SASR 508 Question of Law (No 1 of 1996) (1997) 92 A Crim R 364
PARTIES:	Regina Claudio Vera
FILE NUMBER(S):	06/11/0846
COUNSEL:	Mr E Balodis - Crown Mr G Grogin - Offender