Citation: Regina v Dalton [2005] NSWSC 137
Court: Supreme Court of New South Wales
Date: 15 December 2004
Judge(s): Adams J
Background
The accused was charged with incitement to murder. The Crown alleged that, from around June 2003, she had attempted to procure the killing of a woman who was a key prosecution witness in a separate murder trial involving the accused's son. The alleged victim had made statements implicating the accused's son in the death of a young child.
Police became aware of the accused's intentions through a prison informant, Christopher Archer, who had spoken with both the accused's son and the accused herself. Police then introduced an undercover operative, referred to as Stewart, who met with the accused on multiple occasions and recorded their conversations. In those conversations, the accused allegedly sought to engage Stewart to murder the witness, and later a second person.
The Crown proposed to tender recordings of those conversations at trial. Before the jury was empanelled, the defence applied to exclude the evidence on the grounds that it had been improperly obtained.
Legal Issues
- Whether police officers (Archer and Stewart) committed a criminal offence by encouraging the accused to incite murder, thereby rendering the evidence improperly obtained.
- Whether the recorded conversations were inadmissible under section 138 of the Evidence Act 1995 as evidence obtained through impropriety or in contravention of an Australian law.
- Whether, in the exercise of discretion under section 138, the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence.
- Whether the investigation should have been conducted under the Law Enforcement (Controlled Operations) Act 1997, and whether failure to do so constituted a relevant impropriety.
Decision
Adams J conducted a voir dire before empanelling the jury. His Honour found the contested evidence admissible and delivered these reasons after indicating that conclusion at the close of the voir dire.
On the question of criminal liability of the undercover operative, the court accepted that there were legitimate questions about whether Stewart's conduct in encouraging the accused to persist with her plans could attract criminal liability as an accessory. However, the court found that the officers were genuinely ignorant of the law on accessories, as were the lawyers advising them. That ignorance, while unfortunate, meant there had been no deliberate attempt to commit an offence or circumvent the law.
Regarding the Law Enforcement (Controlled Operations) Act 1997, Adams J found that police had not deliberately avoided using the Act's framework. The court noted that investigators had taken other steps involving independent oversight, including obtaining recording warrants from a judge, which indicated engagement with external scrutiny even if the specific statutory scheme was not invoked. A finding of deliberate avoidance of the Act would have been treated as a serious impropriety potentially warranting exclusion, but that finding was not open on the evidence.
On the section 138 discretion, the court was clearly satisfied that the desirability of admitting the evidence outweighed the undesirability of doing so by a considerable margin. Excluding the evidence would have been fatal to the Crown case and, in the court's view, would have led to an unjustified acquittal on a very serious charge in respect of which there was a legitimate public interest in prosecution.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under section 138 of the Evidence Act 1995, the party seeking admission bears a burden of demonstrating that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained improperly, though Adams J left open whether the onus definitively rested on the Crown in all cases.
- Genuine ignorance of the law on accessories, including on the part of the legal advisers to investigators, may be relevant to whether conduct constitutes a deliberate impropriety for section 138 purposes, even where that ignorance is itself criticised.
- A deliberate decision to avoid operating under the Law Enforcement (Controlled Operations) Act 1997, where officers knew criminal conduct might be undertaken during the operation, would constitute a serious impropriety capable of warranting exclusion of evidence.
- Obtaining judicial warrants to record conversations, while not rendering otherwise unlawful conduct lawful, was treated as a relevant indicator that investigators engaged independent oversight rather than acting unilaterally.
- The gravity of the alleged offence and the existence of a legitimate public interest in prosecution are relevant factors in the section 138 balancing exercise, particularly where exclusion would entirely defeat the Crown case.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW), s 16
Cases
- Ridgeway v The Queen (1995) 184 CLR 19
- R v Basha (1989) 39 A Crim R 337 (referenced procedurally)