McClellan CJ at CL at 1; Hislop J at 2; Johnson J at 3
DECISION:
1. Time to file a Notice of Appeal with respect to the second trial extended to 16 May 2006; 2. The appeals against conviction at the first and second trials are dismissed
CATCHWORDS:
CRIMINAL LAW - appeals against conviction at two trials - offences of indecent assault and buggery committed against three minors between 1978 and 1984 - complainant covertly recorded conversation in 1999 with Appellant containing admissions - no warrant under Listening Devices Act 1984 authorising recording - whether recording was "reasonably necessary for the protection of the lawful interests" of complainant who recorded conversation - construction of s.5(3)(b)(i) Listening Devices Act 1984 - trial judge erred in holding that requirements of s.5(3)(b)(i) were satisfied - recording admissible under s.138 Evidence Act 1995 - whether trial judge erred by declining to use the "dangerous to convict" formula as part of the direction under Longman v The Queen (1990) 168 CLR 79 - no error established
[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.
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AGLC
Sepulveda v R [2006] NSWCCA 379
Case
[2006] NSWCCA 379
Decision Date
CaseChat Overview and Summary
The appellant, Sepulveda, was convicted of multiple offences of indecent assault and buggery against three minors committed between 1978 and 1984. The case was heard in the court of appeal, following two trials that had resulted in convictions. The crux of the appeal was the admissibility of a covertly recorded conversation between the appellant and one of the complainants in 1999. The recording contained admissions by the appellant, but there was no warrant under the Listening Devices Act 1984 authorising the recording. The legal issue the court needed to address was whether the recording was reasonably necessary for the protection of the lawful interests of the complainant who made the recording.
The court examined the construction of section 5(3)(b)(i) of the Listening Devices Act 1984 to determine if the recording was admissible. It found that the trial judge had erred in concluding that the requirements of section 5(3)(b)(i) were satisfied. The court clarified that the statutory provision required the recording to be reasonably necessary for the protection of the lawful interests of the person who made the recording. However, it found that the trial judge's approach to this provision was incorrect. Despite this error, the court concluded that the recording was admissible under section 138 of the Evidence Act 1995, as the trial judge's error did not affect the safety of the conviction. Additionally, the court found no error in the trial judge's decision not to use the "dangerous to convict" formula in the direction to the jury, as per Longman v The Queen.
The appeal was dismissed, and the convictions were upheld. The court found no error in the trial judge's handling of the evidence or the directions to the jury, and therefore, the convictions remained valid.