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Court of Criminal Appeal 3 December 2003

Regina v Leigh Jason McKeough

[2003] NSWCCA 385

Drugs
CRIMINAL LAW EVIDENCE ILLEGALLY OBTAINED EVIDENCE DISCRETION TO ADMIT EXERCISE OF

Citation: Regina v Leigh Jason McKeough [2003] NSWCCA 385
Court: Court of Criminal Appeal, New South Wales
Date: 3 December 2003
Judge(s): Spigelman CJ, Dunford J, Hidden J

Background

The respondent was charged with supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1986, following the discovery of 27.44 grams of the substance in his motor vehicle during a police search at Narrabeen on 19 December 2002. Police had stopped the vehicle after confirming it was unregistered and uninsured. During the stop, officers observed the driver reaching down toward the floor area and noticed what appeared to be a small crowbar and gloves, which led one detective to form a suspicion about housebreaking implements and to conduct a search under s 357E of the Crimes Act 1900.

The search uncovered the drugs, and the respondent was arrested. He later participated in an electronically recorded interview in which he admitted to purchasing the methylamphetamine and described his intention to share it with friends.

At trial in the District Court, Judge Coorey ruled the vehicle search had been conducted illegally (as not authorised by s 357E) and consequently excluded both the evidence of the drug find and the recorded interview under s 138 of the Evidence Act 1995. The Director of Public Prosecutions appealed that ruling to the Court of Criminal Appeal.

  • Whether the police search of the respondent's vehicle was authorised by s 357E of the Crimes Act 1900.
  • Whether the District Court judge correctly applied the discretion under s 138 of the Evidence Act 1995 to exclude evidence obtained illegally or improperly.
  • Whether, in exercising that discretion, the judge undertook the balancing exercise required by s 138, weighing the desirability of admitting the evidence against the undesirability of the conduct that produced it.

Decision

The Court of Criminal Appeal allowed the Crown's appeal. The central issue was not simply whether the search was illegal, but whether the trial judge had properly applied the s 138 discretion. Section 138 requires a court to balance two competing public interests: the desirability of bringing a guilty person to justice, and the desirability of deterring improper or unlawful conduct by law enforcement.

Dunford J (with whom the other judges agreed) found that, on the assumption the search was illegal, Judge Coorey had failed to perform that balancing exercise. Instead, his Honour appeared to move directly from a finding of illegality to a conclusion that the evidence should be rejected, without genuinely weighing the competing considerations. The reasons given did not reflect a balancing process.

Spigelman CJ agreed, noting that the phrase "not a sufficient basis for the search" as used by the trial judge was unlikely to reflect any form of balancing. His Honour acknowledged some difficulty in characterising the trial judge's reasoning but concluded, on balance, that the discretion had been exercised without the required weighing of interests. Hidden J agreed that the balancing exercise had not been performed and found it unnecessary to resolve whether the search had been legal at all.

The Court of Criminal Appeal then conducted the s 138 exercise itself and concluded that, on the facts, the evidence ought to be admitted. The matter was remitted to the District Court for the trial to continue.

Orders Made

  • Appeal allowed.
  • Evidence of the search of the motor vehicle and the electronically recorded interview ruled admissible.
  • Matter remitted to the District Court for continuation of the respondent's trial.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 138 of the Evidence Act 1995 imposes a mandatory balancing exercise. A court must weigh the public interest in the admission of relevant evidence against the public interest in discouraging improper law enforcement conduct. Simply identifying an illegality and rejecting the evidence does not satisfy this obligation.
  • Where a trial judge asserts in conclusory terms that a balancing exercise was performed but the published reasons do not reflect any actual weighing of the competing interests, an appellate court may find the discretion was not properly exercised.
  • An error in the exercise of the s 138 discretion can ground a Crown appeal under s 5F of the Criminal Appeal Act 1912, allowing the appellate court to substitute its own ruling on admissibility.
  • In conducting its own s 138 assessment, the Court of Criminal Appeal concluded the evidence should be admitted, illustrating that illegally or improperly obtained evidence is not automatically excluded under the Evidence Act 1995 framework.
  • The decision applies principles from Bunning v Cross (1978) 141 CLR 54 and R v Rondo [2001] NSWCCA 540 concerning the structured discretion courts exercise when dealing with improperly obtained evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 357E
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1986 (NSW), s 25(1)
- Evidence Act 1995 (NSW), s 138

Cases
- Bunning v Cross (1978) 141 CLR 54
- House v The King (1936) 55 CLR 499
- R v Rondo [2001] NSWCCA 540; 126 A Crim R 562