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Court of Criminal Appeal 28 June 2002

Regina v. EADE

[2002] NSWCCA 257

Also reported as (2002) 131 A Crim R 390
DrugsFraud & dishonesty
CRIMINAL LAW EVIDENCE CRIMINAL LAW PROHIBITED DRUGS INCITEMENT TO SUPPLY

Citation: Regina v Eade [2002] NSWCCA 257
Court: Court of Criminal Appeal, New South Wales
Date: 28 June 2002
Judge(s): Hodgson JA; Hidden J; Smart AJ

Background

The appellant was a serving police officer summoned to give evidence before the Royal Commission into the New South Wales Police Service. In September 1995, he gave evidence before the Commission that he had never engaged in any corrupt or illegal conduct. Listening devices had been installed in premises owned by a woman, Ms Hart, under warrants that were subsequently found to be invalid, and the appellant's conversations with Ms Hart on three occasions were recorded.

The appellant was charged on two counts. The first was that he knowingly gave false testimony before the Royal Commission when he denied engaging in illegal conduct. The second was that, on 12 September 1995, he incited Ms Hart to supply a prohibited drug, namely ecstasy.

Following conviction on both counts in the District Court before Kinchington DCJ, the appellant was sentenced to fifteen months imprisonment on the perjury count and a cumulative six months on the incitement count. He appealed to the Court of Criminal Appeal on two grounds.

  • Whether the trial judge erred in admitting transcripts of evidence given before the Royal Commission, where those transcripts contained evidence of conversations recorded in contravention of section 5 of the Listening Devices Act 1984 (NSW).
  • Whether it is legally possible to incite another person to supply a prohibited drug when the intended supply would be to the person doing the inciting.

Decision

Admissibility of the Royal Commission transcripts

The warrants used to install the listening devices had already been found to be invalid in earlier proceedings (R v Eade [2000] NSWCCA 369), meaning section 13 of the Listening Devices Act applied to restrict the use of evidence derived from those recordings. The central question was whether transcripts of Royal Commission evidence, which incorporated the content of those illegally recorded conversations, themselves constituted "evidence of the conversation" for the purposes of section 13. The Court upheld the trial judge's ruling that the transcripts were admissible, consistent with the framework established in the earlier appeal, including the role of section 138 of the Evidence Act 1995 in the exercise of discretion.

Incitement to supply to oneself

The appellant argued there could be no offence of incitement to supply where the intended recipient of the supply was the person doing the inciting. The Court rejected this argument. Hodgson JA reasoned that urging another person to obtain drugs so that those drugs may be supplied to the person making the request is capable of constituting incitement to supply. The Court found no legal obstacle to this construction of the offence. Smart AJ added that the word "incite" means to rouse, urge, stimulate or stir up, and that common forms of inciting conduct include commands, requests, proposals, and encouragement. Critically, the offence of incitement is complete upon the urging itself, regardless of whether the substantive offence was ever carried out.

The Court was also satisfied that the trial judge's directions to the jury on the meaning of incitement were adequate in the circumstances of this case, where there was no suggestion Ms Hart was already ready and willing to supply drugs.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Transcripts of Royal Commission evidence containing the substance of conversations recorded in breach of the Listening Devices Act 1984 can, in appropriate circumstances, be admitted at trial, subject to the framework governing illegally obtained evidence.
  • A person can be found guilty of inciting another to supply a prohibited drug even where the proposed supply is intended to be made to the inciter. The Court of Criminal Appeal confirmed no legal bar exists to such a charge.
  • Under the law of incitement, the offence is complete at the point of the urging itself. It does not matter that no steps were taken toward the substantive offence or that the incitement had no actual effect.
  • The definition of "incite" encompasses a broad range of conduct, including commands, requests, proposals, advice, encouragement, and authorisation, assessed in context.
  • Where invalid warrants render listening device recordings inadmissible under section 13 of the Listening Devices Act, section 138 of the Evidence Act 1995 governs the exercise of the court's discretion to admit derivative evidence, with the onus resting on the Crown.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 138
- Listening Devices Act 1984 (NSW), ss 3(1), 5, 12, 13
- Royal Commission (Police Service) Act 1994 (NSW)

Cases
- Castle v Olsen (1985) 3 NSWLR 26
- R v Assistant Recorder of Kingston-upon-Hull; Ex parte Morgan [1969] 2 QB 58
- R v Downey (1992) 66 A Crim R 1
- R v Eade (2000) 118 A Crim R 449
- R v Massie (1993) 103 A Crim R 551
- Young v Cassells (1914) 33 NZLR 852