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Court of Criminal Appeal 6 September 2000

REGINA v HADDAD & TREGLIA

[2000] NSWCCA 351

Also reported as [2000] 116 A Crim R 312
Fraud & dishonesty
CRIMINAL LAW PROCEDURE EVIDENCE

Citation: Regina v Haddad & Treglia [2000] NSWCCA 351
Court: NSW Court of Criminal Appeal
Date: 6 September 2000
Judge(s): Spigelman CJ; Newman J; Greg James J

Background

Two respondents were charged with perjury arising from alibi evidence they gave at an earlier armed robbery trial, at which they were acquitted. The Crown's perjury case rested almost entirely on tape recordings of conversations between the respondents in a cell at Bankstown Police Station on 14 December 1994. Those recordings had been made under a listening device warrant obtained by police investigating a separate murder.

At trial in the District Court, the respondents objected to the admissibility of the recordings. Judge Luland conducted a voir dire and exercised the discretion under section 138 of the Evidence Act 1995 to exclude the evidence, finding it had been obtained in contravention of the Listening Devices Act 1984. With that evidence gone, the Crown conceded it had no remaining case. The trial judge discharged the jury and the Crown appealed to the Court of Criminal Appeal under section 5F(2) of the Criminal Appeal Act 1912.

The central questions on appeal were whether the trial judge's ruling was an "interlocutory judgment or order" amenable to a Crown appeal, and whether the recordings had in fact been obtained in contravention of the Listening Devices Act 1984.

  • Whether the trial judge's evidentiary ruling constituted an "interlocutory judgment or order" within section 5F(2) of the Criminal Appeal Act 1912, so as to be subject to a Crown appeal.
  • Whether section 19 of the Listening Devices Act 1984 (reporting requirements) had been contravened in the handling of the recordings.
  • Whether section 22 of the Listening Devices Act 1984 (destruction requirements) had been contravened by retaining information beyond its original purpose.
  • Whether, even if there had been a contravention, the requisite causal link existed between any such contravention and the "obtaining" of the evidence for the purposes of section 138 of the Evidence Act 1995.

Decision

Jurisdictional threshold. The Court confirmed that the ruling excluding the evidence was an interlocutory judgment or order under section 5F(2) because, as the trial judge himself acknowledged, excluding the evidence effectively withdrew the only evidence upon which the Crown could rely. A ruling with that practical effect goes beyond a mere evidentiary ruling and is amenable to Crown appeal, consistent with the Court's earlier decisions in R v Bozatsis & Spanakakis and R v Lisoff.

No contravention of section 19. Spigelman CJ held that the reporting obligations in section 19 of the Listening Devices Act do not require a report to encompass all potential uses of information obtained via a listening device. A narrower construction applied.

No contravention of section 22. Section 22 does not mandate destruction of all information beyond that relating to the offence for which the original warrant was obtained. Information concerning any "prescribed offence" may be lawfully retained. Because the respondents' admissions related to a prescribed offence (armed robbery), retaining that information did not contravene section 22.

Causal connection under section 138 (reserved). The Court acknowledged but did not resolve the broader question of whether a causal link is required between an identified contravention and the obtaining of the evidence before section 138 is engaged. Spigelman CJ noted it is at least arguable that "obtained in contravention" could encompass an entire integrated statutory privacy scheme, and that the point should await a case where it is squarely in issue. Having found no contravention of sections 19 or 22, it was unnecessary to decide it here.

Orders Made

  • Appeal allowed.
  • Ruling that the evidence be rejected set aside.

Key Takeaways

  • A trial judge's evidentiary ruling that has the practical effect of removing the entirety of the Crown's case constitutes an "interlocutory judgment or order" under section 5F(2) of the Criminal Appeal Act 1912, not a mere ruling on evidence, and is therefore amenable to Crown appeal.
  • Under section 19 of the Listening Devices Act 1984, reporting obligations do not extend to encompassing every potential use that could be made of information captured by a listening device.
  • Section 22 of the Listening Devices Act 1984 does not require destruction of information simply because it falls outside the scope of the offence for which the original warrant was granted. Information relating to any prescribed offence may be retained.
  • The question of whether section 138 of the Evidence Act 1995 requires a causal link between a contravention of law and the obtaining of evidence remains unresolved. Spigelman CJ left open the possibility that "obtained in contravention" might extend to cover an entire integrated statutory privacy scheme.
  • In applying Bozatsis & Spanakakis, the Court reinforced that a concession made below that the Crown has no case without particular evidence is a weighty factor in characterising an evidentiary ruling as an interlocutory judgment or order.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Evidence Act 1995 (NSW), s 138
- Listening Devices Act 1984 (NSW), ss 5, 19, 22
- Search Warrants Act 1985 (NSW)
- Australian Federal Police Act 1979 (Cth)

Cases:
- R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
- R v Lisoff [1999] NSWCCA 364
- R v Cheng [1999] NSWCCA 373
- R v Steffan (1993) 30 NSWLR 633
- R v Nicholas [2000] VSCA 49
- R v Karageorge (1998) 103 A Crim R 157
- R v Applebee (1995) 79 A Crim R 554
- Carroll v Mijovich (1991) 25 NSWLR 441
- Ghani v Jones [1970] 1 QB 693
- Inland Revenue Commissioner v Rossminster Ltd [1980] AC 952