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Court of Criminal Appeal 9 June 2005

Madigan v R

[2005] NSWCCA 170

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION PLEA OF NOT GUILTY ADMISSION OF EXPERT EVIDENCE.

Citation: Madigan v R [2005] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 9 June 2005
Judge(s): Wood CJ at CL, Grove J, Hoeben J

Background

The appellant was convicted in the District Court in May 2004 of aggravated break and enter at the Australian Reptile Park at Somersby, committed in company with two others on 21 January 2002. The offenders stole a gun safe containing seven firearms, weighing approximately 150 kilograms. No fingerprint or other forensic evidence directly linked the appellant to the offence.

The prosecution case rested on three pillars: recordings captured by a listening device lawfully installed at the appellant's home, physical surveillance undertaken by police, and the evidence of the appellant's then-girlfriend, who gave evidence that she had driven to the old airstrip at Narara late that evening and picked him up. The listening device recordings contained conversations in which speakers referred to each other by name, discussed committing the offence, and planned to target a location at Somersby.

The appellant was sentenced to four years' imprisonment with a non-parole period of two years. He appealed against conviction only, raising two evidentiary grounds.

  • Whether the trial judge erred in admitting a surveillance log book maintained by police at the listening post into evidence
  • Whether the trial judge erred in admitting voice identification evidence from the listening device recordings, where there had been no direct visual identification of the speakers by police

Decision

On the log book, the Court of Criminal Appeal accepted that the document should not have been admitted into evidence without editing. The log contained entries that could have suggested the appellant had bad character or a tendency to commit break and enter offences, matters that the Crown had not placed in issue. The trial judge had given a specific jury direction limiting the use to which the log could be put, but the Court acknowledged the risk that the jury might have used scattered passages impermissibly.

Despite finding the log's admission erroneous, the Court applied the proviso under section 6 of the Criminal Appeal Act 1912 and concluded that no substantial miscarriage of justice had resulted. Drawing on principles from the High Court's decision in Festa v The Queen, the Court reasoned that, on the properly admitted evidence, a reasonable jury would inevitably have convicted the appellant. The log added nothing of direct relevance to the offence charged, and the identification of speakers in the recordings did not depend upon it.

On the voice identification ground, the Court found there was sufficient independent evidence to support the admission of the intercepted conversations. Multiple police officers gave evidence identifying the speakers, and the speakers themselves had referred to one another by name during the recorded conversations, including the names "Madigan", "Woods", and "Alison". That self-referential identification provided a reliable foundation for admitting the recordings.

The Court, with all three judges in agreement, dismissed the appeal.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A surveillance log book maintained by police at a listening post is not automatically admissible in its unedited form, particularly where entries may suggest bad character or tendency reasoning that the Crown has not formally placed in issue.
  • In dismissing the appeal, the Court of Criminal Appeal applied the proviso in section 6 of the Criminal Appeal Act 1912, confirming that wrongly admitted evidence does not warrant overturning a conviction where, on the properly admitted evidence, conviction was inevitable.
  • Voice identification evidence from listening device recordings may be admitted where independent evidence, including the speakers' own self-identifying statements during intercepted conversations, sufficiently establishes who the speakers are.
  • Under the approach confirmed in Festa v The Queen (2001) 208 CLR 593, the inquiry for wrongly admitted evidence asks whether a properly directed jury, acting reasonably and considering only admissible evidence, would inevitably have convicted; a theoretical "lost chance of acquittal" does not automatically constitute a substantial miscarriage of justice.
  • No substantial miscarriage of justice arose from the log's admission where the trial judge had given a specific limiting direction to the jury and the remainder of the evidence, including the listening device recordings and eyewitness testimony, independently supported the conviction.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 55, 56(1), 79, 135, 137, 165(1)(b), 165(2), 177

Cases:
- Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
- Domican v The Queen (1992) 173 CLR 555
- Driscoll v The Queen (1977) 137 CLR 517
- Festa v The Queen (2001) 208 CLR 593
- Li v The Queen (2003) 139 A Crim R 281
- R v Gao [2003] NSWCCA 390
- R v GK (2001) 53 NSWLR 317
- R v Lansdell [1995] NSWCCA (22 May 1995)
- R v Leung (1999) 47 NSWLR 405
- R v Riscuta and Niga [2003] NSWCCA 6
- R v Storey (1978) 140 CLR 364