Citation: Sepulveda v R [2006] NSWCCA 379
Court: NSW Court of Criminal Appeal
Date: 29 November 2006
Judges: McClellan CJ at CL, Hislop J, Johnson J
Background
The appellant was convicted at two separate trials in the Sydney District Court in 2004 before Judge Woods QC. The first trial resulted in convictions for indecent assault and buggery against two complainants, with offences occurring between 1978 and 1984. The second trial produced further convictions for indecent assault against a third complainant, covering offences between 1979 and 1981.
A key feature of the prosecution case was a covert recording made in 1999. One of the complainants secretly recorded a conversation with the appellant in which the appellant made admissions. No warrant had been obtained under the Listening Devices Act 1984 authorising the recording.
The appellant appealed against conviction at both trials. His appeal against the second trial was filed late, and he also required an extension of time to bring that appeal.
Legal Issues
- Whether the trial judge erred in admitting the covertly recorded conversation into evidence, given it was made without a warrant under the Listening Devices Act 1984
- Whether the recording fell within the statutory exception in s 5(3)(b)(i) of that Act, which permits recording without a warrant where it is "reasonably necessary for the protection of the lawful interests" of the person making the recording
- Whether the recording was nonetheless admissible under s 138 of the Evidence Act 1995, even if the statutory exception did not apply
- Whether the trial judge erred by declining to include a "dangerous to convict" formula as part of the delay warning given to the jury under Longman v The Queen (1990) 168 CLR 79
Decision
Extension of time: The Court granted the appellant an extension of time to appeal against the second trial conviction. The grounds for both appeals were substantially the same, and the Crown had promptly prepared material for both appeals. The Court noted, however, that granting an extension in these circumstances should not be read as encouraging last-minute applications.
Admissibility of the covert recording: The Court agreed with the appellant that the trial judge had erred in finding that the s 5(3)(b)(i) exception applied. The "reasonably necessary for the protection of the lawful interests" test in that provision was not satisfied on the facts. However, the Court held that this did not end the inquiry. The recording was ultimately admissible under s 138 of the Evidence Act 1995, which gives the court a discretion to admit improperly or illegally obtained evidence after weighing the desirability of admitting it against the undesirability of admitting evidence obtained in the way it was obtained.
The Longman direction: The trial judge gave detailed and substantial directions to the jury about the dangers of convicting on delayed complaint evidence, in accordance with the principles in Longman. The appellant argued that those directions should also have included an explicit "dangerous to convict" formula. The Court rejected this argument. A "dangerous to convict" direction was not required as a matter of law. The elaborate Longman directions actually given conveyed the necessary substance of the warning to the jury with the authority of the court, and no error was established at either trial.
The Court noted that a "dangerous to convict" direction had been given at the first trial in relation to one complainant, but for reasons unrelated to delay. That direction was given because of specific features affecting that complainant's credibility, including criminal history, and did not mean an equivalent direction was required for the other complainants on a Longman basis.
Orders Made
- Time to file a Notice of Appeal with respect to the second trial extended to 16 May 2006
- The appeals against conviction at the first and second trials are dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the trial judge incorrectly applied the s 5(3)(b)(i) exception under the Listening Devices Act 1984: a covert recording made by a complainant to obtain admissions is not automatically "reasonably necessary for the protection of the lawful interests" of the person making the recording.
- Even where a recording is made in breach of the Listening Devices Act 1984, it may still be admitted under s 138 of the Evidence Act 1995 following a discretionary balancing exercise, and a trial judge's erroneous reliance on the statutory exception does not necessarily render the evidence inadmissible.
- A "dangerous to convict" direction is not required as a matter of law as a component of a Longman warning in delayed complaint cases: substantial and detailed directions conveying the substance of the warning will suffice.
- Where a "dangerous to convict" formula is given at trial for reasons unrelated to delay (such as a complainant's credibility), that does not create a corresponding obligation to give the same formula to other complainants on a Longman basis.
- In dismissing both appeals, the Court reinforced that an extension of time to appeal will not be granted as a matter of course for last-minute applications, even where the grounds largely overlap with a timely appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 79, 81
- Listening Devices Act 1984 (NSW), s 5(3)(b)(i)
- Evidence Act 1995 (NSW), s 138
- Criminal Appeal Act 1912 (NSW)
Key Cases:
- Longman v The Queen (1990) 168 CLR 79
- Douar v The Queen (2005) 159 A Crim R 154
- R v Le (2004) 60 NSWLR 108
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Taikato v The Queen (1996) 186 CLR 454
- Commissioner of Police v Barbaro (2001) 51 NSWLR 419
- Violi v Berrivale Orchards Limited (2000) 99 FCR 580
- House v The King (1936) 55 CLR 499