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18
Court of Criminal Appeal 12 December 2003

R v Sophear Em

[2003] NSWCCA 374

Assault & violenceHomicideTheft & property
EVIDENCE ADMISSIBILITY ADMISSIONS FAILURE TO FULLY CAUTION PERSISTENT QUESTIONING APPLICATION OF STATUTORY DISCRETIONS

Citation: R v Sophear Em [2003] NSWCCA 374
Court: NSW Court of Criminal Appeal
Date: 12 December 2003
Judge(s): Ipp JA, Hulme J, Howie J

Background

The respondent faced a number of serious charges arising from two separate home invasion incidents. The first involved the shooting death of a male householder and wounding of his wife during a robbery. The second involved aggravated robbery offences at another premises. The Crown sought to rely on alleged admissions made by the respondent in two conversations with investigating police.

At trial level, Shaw J excluded evidence of both conversations. The conversation of 15 May 2002 was central to the Crown's murder prosecution, with the Crown alleging it contained admissions of the respondent's participation in the fatal home invasion. Without that evidence, the murder prosecution and related serious charges could not proceed.

The Crown appealed under s 5F of the Criminal Appeal Act 1912 (NSW). The respondent accepted the Court of Criminal Appeal had jurisdiction to hear the appeal regarding the second conversation, given its significance to the prosecution, but the Crown conceded the Court had no jurisdiction over the ruling excluding the first conversation.

  • Whether Shaw J erred in finding the evidence of the second conversation was obtained improperly under s 138 of the Evidence Act 1995 (Cth), without making the necessary factual findings to support that conclusion
  • Whether Shaw J correctly exercised the discretion under s 90 of the Evidence Act to exclude the evidence on grounds of unfairness to the accused
  • Whether Shaw J correctly applied s 137 of the Evidence Act in finding the evidence was unfairly prejudicial
  • Whether, if the appeal succeeded, the Court of Criminal Appeal should itself rule on admissibility or remit the matter to a different judge

Decision

The Court allowed the Crown's appeal, finding that Shaw J's exercise of discretion in rejecting the evidence of the second conversation had miscarried. A central problem identified by Howie J was that Shaw J failed to make findings of fact necessary to establish any impropriety under s 138 of the Evidence Act. Without those foundational findings, the discretion to exclude under that provision could not properly be enlivened.

The Court also found that Shaw J misunderstood the nature and relevance of the alleged admissions when applying the s 90 discretion, and that his Honour gave inappropriate weight to the circumstance that the respondent would not have spoken had he known the conversation was being recorded. Further errors were identified in the application of s 137.

On the question of what order to make, the Court declined to itself rule on admissibility. Howie J reasoned that outstanding factual findings remained to be made and that, depending on those findings, a discretion to admit or exclude the evidence might arise. That exercise was properly left to a trial judge with the full evidence before the court.

The Court also concluded it would be inappropriate for the matter to be reheard by Shaw J. Howie J made clear this was not a criticism of his Honour, but rather a recognition of the practical difficulty of requiring a judge to re-exercise fresh discretions while effectively setting aside views he had genuinely, if erroneously, formed.

Orders Made

  • Appeal allowed.
  • The order made by Shaw J rejecting the evidence of the conversation of 15 May 2001 is vacated.

Key Takeaways

  • A Crown appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against an evidentiary ruling is available where exclusion of the evidence in question would effectively prevent a murder prosecution from proceeding.
  • Under s 138 of the Evidence Act 1995 (Cth), a court must make specific findings of fact establishing impropriety before the discretion to exclude improperly obtained evidence is enlivened. Failing to make those findings is an error that vitiates the exercise of discretion.
  • The fact that a suspect would not have spoken had they known a conversation was being secretly recorded does not, of itself, constitute sufficient grounds to exercise the s 90 discretion to exclude evidence of alleged admissions as unfair.
  • Where a trial judge's discretion has miscarried but significant factual questions remain unresolved, the Court of Criminal Appeal may vacate the exclusion order without itself ruling on admissibility, leaving that determination to a trial judge.
  • Practical considerations surrounding the re-exercise of judicial discretions can justify remitting a matter to a different judge, even absent any criticism of the original judge's conduct or capacity.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (Cth), ss 84, 85, 90, 137, 138 (including ss 138(1), 138(2), 138(3)), 139 (including ss 139(1), 139(5))
- Crimes Act 1914 (Cth), Part 10A, s 355(2)
- Listening Devices Act 1984 (NSW)

Cases:
- Bozatsis and Spanakis (1997) 97 A Crim R 296
- R v Lisoff [1999] NSWCCA 364
- R v Phan [2003] NSWCCA 205
- R v Lavery (1978) 19 SASR 526
- Swaffield and Pavic v The Queen (1997) 192 CLR 159
- Foster v The Queen (1993) 67 ALJR 550
- R v Clarke (1997) 97 A Crim R 414
- Van Der Meer v The Queen (1988) 62 ALJR 656
- Duke v The Queen (1989) 180 CLR 508
- R v Singh-Bal (1997) 92 A Crim R 397
- R v R (1989) 18 NSWLR 74
- Doney v The Queen (1990) 171 CLR 207
- R v BD (1997) 94 A Crim R 131
- R v Serratore (1999) 48 NSWLR 101
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Yates [2002] NSWCCA 520
- R v Taylor [2003] NSWCCA 194
- R v GK (2001) 53 NSWLR 317
- Festa v The Queen (2001) 208 CLR 593