R v Workman - [2004] NSWCCA 213

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Workman [2004] NSWCCA 213

FILE NUMBER(S):
60508/03

HEARING DATE(S): Tuesday 15 June 2004

JUDGMENT DATE: 30/06/2004

PARTIES:
Regina v Erin John Workman

JUDGMENT OF: Grove J Dowd J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0826

LOWER COURT JUDICIAL OFFICER: Cooper DCJ

COUNSEL:
P. Ingram (Crown)
P. Byrne SC (Applicant)

SOLICITORS:
C.K. Smith (Crown)
J. Bull (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SEXUAL OFFENCES
"PRETEXT" CONVERSATION BY TELEPHONE BETWEEN COMPLAINANT AND OFFENDER RECORDED IN QUEENSLAND IN ACCORDANCE WITH QUEENSLAND POLICE PROTOCOL
SUCH PROCEDURE EXPLICITLY LAWFUL PURSUANT TO QUEENSLAND STATUTE
OFFENDER SPEAKING ON TELEPHONE IN NSW
RECORDING WOULD HAVE BEEN CONTRARY TO STATUTE (LISTENING DEVICES ACT) IF PROCEDURE UNDERTAKEN IN NSW
WHETHER EVIDENCE IMPROPERLY OBTAINED WITHIN MEANING OF s138 EVIDENCE ACT
PROPOSED WITNESS ON VOIR DIRE
NATURAL THERAPIST WHO HAD CONSULTED WITH COMPLAINANT
ALLEGATION OF CONFABULATION
RULING THAT CROSS EXAMINATION BE REFUSED
APPLICATION LATER NOT PRESSED AT HEARING
SENTENCE
OBJECTIVELY SERIOUS OFFENCES ON GIRL DURING HER PASSAGE FROM CHILDHOOD TO TEEN YEARS
SENTENCES IMPOSED NOT MANIFESTLY EXCESSIVE

LEGISLATION CITED:
Criminal Appeal act 1912
Evidence Act 1995
Invasion of Privacy Act 1971 (Qld)
Listening Devices Act 1984 (NSW)
Telecommunications (Interception) Act 1979 (Cth)

DECISION:
APPEAL DISMISSED.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60508/03
GROVE J
DOWD J
SPERLING J
Wednesday 30 June2004

REGINA v ERIN JOHN WORKMAN

Judgment

GROVE J: The appellant stood trial before Cooper DCJ and a jury at Sydney District Court upon an indictment charging various sexual offences, the detail of which it is not immediately necessary to recount. All counts related to the same complainant whose age when the offences occurred ranged from about seven to fifteen years. She was the daughter of a woman with whom the appellant had entered a de facto relationship following the separation of that woman and the complainant’s father. The dates of offences were specified to lie between July 1991 and August 1999.
After conviction, sentences on various counts resulted in an aggregate imposition of imprisonment for eight years nine months with a non parole period of six years three months. The appeal challenges conviction and, alternatively, leave to appeal against sentence is sought.
The principal grounds of appeal against conviction assert that the learned trial judge erred in admitting the content of a certain recording into evidence (ground 1) or, if that was not erroneous, in not exercising discretion to exclude that evidence (ground 2). In conformity with the approach of counsel, those grounds can be dealt with together.
Exhibits J and K at trial consisted of a tape recording and transcript of a conversation between the appellant and the complainant. Some editing out of extraneous material had, by consent, been undertaken. There is no need to distinguish the two forms of recording to consider the grounds of appeal.
In August 2000 the complainant moved from Sydney to reside with her sister in Queensland. Her sixteenth birthday occurred on 29 August 2000. She reported the…

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 Workman

Details

AGLC: R v Workman [2004] NSWCCA 213
Case: [2004] NSWCCA 213
Decision Date: 30 June 2004

CaseChat Overview and Summary

The case of R v Workman came before the court following the conviction of the appellant on charges relating to sexual offences. The dispute centred on the legality of a recorded conversation between the complainant and the offender, which took place under Queensland police protocol while the offender was speaking on the telephone from New South Wales. The recording was found to be lawful in Queensland, but would have been unlawful in New South Wales under the Listening Devices Act. The court was tasked with determining whether the evidence obtained through the recording was improperly obtained under section 138 of the Evidence Act.

The court examined the nature of the conversation and the procedural legality of its recording. It was established that the recording was conducted in accordance with Queensland law, which explicitly allows such recordings when the offender is in Queensland and the complainant is not. The court also considered the potential implications had the recording occurred in New South Wales, where it would have been unlawful. The primary issue was whether the evidence obtained through the recording should be deemed improperly obtained and thus inadmissible. Additionally, the court needed to decide on the admissibility of a proposed witness, a natural therapist who had consulted with the complainant, in light of allegations of confabulation.

In its reasoning, the court concluded that the recording was lawfully obtained under Queensland law and did not constitute an improper obtaining of evidence. The court found that the evidence was properly obtained and admissible. Regarding the proposed witness, the court noted that the application to call the witness on voir dire was not pressed at the hearing, rendering the issue moot. Ultimately, the court imposed sentences that it found to be appropriate and not manifestly excessive, considering the serious nature of the offences committed against a girl during her formative years.

Orders