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Court of Criminal Appeal 15 November 2000

R v W J Eade

[2000] NSWCCA 369

Also reported as [2000] 118 A Crim R 449
DrugsFraud & dishonestyPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE INVALIDITY OF LISTENING DEVICE WARRANT

Citation: R v W J Eade [2000] NSWCCA 369
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2000
Judge(s): Priestley JA; Greg James J; Kirby J

Background

The accused faced two charges in the District Court: misleading a Royal Commission and inciting the supply of a prohibited drug. Before a jury was empanelled, the trial judge (Kinchington DCJ) was asked to rule on the admissibility of recordings of four conversations between the accused and a Crown witness named Hart.

Kinchington DCJ found that the listening device warrants relied upon by the Crown were invalid. Despite that finding, he declined to exclude the recorded conversations from evidence and held that it was appropriate for the circumstances of all four conversations to be placed before the jury.

The accused then applied for a permanent stay of proceedings, which Kinchington DCJ refused. The judge certified both rulings as proper matters for determination by the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912, and the accused appealed.

  • Whether the listening device warrants were invalid
  • Whether invalidity of the warrants automatically rendered evidence of the recorded conversations inadmissible
  • Whether s 13 of the Listening Devices Act 1984 operated to exclude evidence obtained under an invalid warrant
  • Whether the trial judge's ruling not to exclude the evidence was premature or based on an error about the applicable onus
  • Whether the Court of Criminal Appeal had jurisdiction to entertain the appeal under s 5F of the Criminal Appeal Act 1912

Decision

All three judges agreed that Kinchington DCJ was correct to find the warrants invalid. However, they also agreed that invalidity of the warrants did not automatically mean the recorded conversations were inadmissible. The question of admissibility required a separate, substantive analysis.

On the admissibility question, the Court found that s 13 of the Listening Devices Act 1984 did not operate to exclude evidence given by a principal party to a conversation that had been illegally recorded. Admissibility of the recordings therefore fell to be determined under s 138 of the Evidence Act 1995, which requires the court to weigh the desirability of admitting the evidence against the undesirability of how it was obtained.

The Court held that Kinchington DCJ's ruling declining to exclude the evidence was premature and may have proceeded on a misapprehension about onus. Under s 138, the onus rests on the Crown to establish that the desirability of admitting the evidence outweighs the undesirability. His Honour's language suggested he may have placed that burden on the accused, which was an error requiring the matter to be redetermined.

On jurisdiction, Priestley JA noted some complexity about whether a pre-trial ruling on admissibility constitutes an "interlocutory judgment or order" within s 5F. However, because Kinchington DCJ had himself certified the matters as proper for appeal and the parties had argued the appeal on the merits, the Court proceeded to determine the substance without resolving the jurisdictional question definitively.

Orders Made

  • The appeal against the refusal of the permanent stay was dismissed.
  • The appeal against the ruling admitting evidence of the four conversations was upheld, and Kinchington DCJ's ruling was set aside.
  • The matter was returned to the District Court to be determined according to law.

Key Takeaways

  • Invalidity of a listening device warrant does not automatically render evidence of the recorded conversations inadmissible. Admissibility remains a separate question requiring its own analysis.
  • Under s 13 of the Listening Devices Act 1984, evidence given by a principal party to a conversation is not excluded merely because the recording was made under an invalid warrant. The Evidence Act 1995 governs admissibility in those circumstances.
  • Where admissibility is contested under s 138 of the Evidence Act 1995, the onus lies on the Crown to demonstrate that the desirability of admitting the evidence outweighs the undesirability arising from the unlawful conduct. The onus does not rest on the accused to justify exclusion.
  • A pre-trial ruling on admissibility made before a jury is empanelled may be premature if the full factual context has not yet emerged at trial. Exclusionary discretions should be exercised at the appropriate procedural stage.
  • There remains uncertainty in New South Wales as to whether a trial judge's pre-trial evidentiary ruling constitutes an "interlocutory judgment or order" attracting appellate jurisdiction under s 5F of the Criminal Appeal Act 1912. The Court in this case noted the issue but did not resolve it conclusively.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Listening Devices Act 1984 (NSW), Pt 4; ss 5, 7(2), 12, 13, 16
- Listening Devices Act 1969 (Vic), s 4A
- Evidence Act 1995 (NSW), ss 135, 138, 142

Cases:
- Lethlean (1995) 83 A Crim R 197
- Steffan (1993) 30 NSWLR 633
- R v EID (1999) 46 NSWLR 116
- Bayeh v Taylor & Ors (unreported, 4 February 1998)
- Ousley v The Queen (1997) 192 CLR 69
- Amalgamated Television Services P/L v Marsden [2000] NSWCA 167
- R v Ellis Hill (unreported, 23 February 1988)
- R v Zubrecky (unreported, 22 February 1991)
- Violi & Ors v Berrivale Orchards Ltd (2000) 173 ALR 518