Citation: Appeal of David Keene [2006] NSWDC 73
Court: District Court of New South Wales
Date: 18 May 2006
Judge(s): Nicholson SC DCJ
Background
The appellant was convicted in the Local Court of two offences arising from the same incident on 7 February 2004: driving under the influence of alcohol (DUI) and exceeding the speed limit by more than 45 kilometres per hour. Both offences were alleged to have occurred during a late-night encounter with highway patrol officers in the Kellyville area of Sydney.
Two patrol officers followed the appellant's vehicle, measured its speed at 119 kilometres per hour by radar, and pursued him to his home address. Upon his arrival, each officer independently formed the view that the appellant was under the influence of alcohol. The appellant denied both allegations, maintaining he had consumed only part of a 700-millilitre bottle of beer earlier in the evening and had not sped.
The appeal was heard as a rehearing on the Local Court transcript and evidence. The appellant was self-represented. He was granted leave to give evidence himself and to call his wife, and the Crown was permitted to adduce evidence in reply.
Legal Issues
- Whether the DUI conviction was established beyond reasonable doubt, in light of evidence bearing on the credit of the investigating officer and concerns about how certain evidence was obtained
- Whether the speeding conviction was established beyond reasonable doubt
- Whether the tape-recording of conversations by the investigating officer constituted an offence under the Listening Devices Act 1984, and whether evidence obtained from that recording was illegally or unlawfully obtained
- Whether the investigating officer's prior history with the appellant undermined the reliability of his evidence
Decision
The court found that the investigating officer, Senior Sergeant Crompton, had a significant prior history with the appellant. In 1997, the appellant had complained to the Ombudsman about the officer. The officer had also made prejudicial statements about the appellant in the Local Court, including describing him as a "high risk offender" and indicating that police had frequently been called to his premises. These matters substantially affected the court's assessment of the officer's credit in relation to the DUI charge.
The court expressed serious concern about the officer's practice of routinely using a handheld tape recorder to record conversations, describing it as done "to protect himself." The court noted, without having received full submissions on the point, that both the making and publication of such recordings appeared to constitute criminal offences under sections 5 and 11 of the Listening Devices Act 1984, carrying a maximum penalty of two years imprisonment. On this basis, the court indicated the evidence from the tape may have been illegally or unlawfully obtained, though the issue had not been objected to at first instance.
On the DUI charge, taking into account the officer's credibility issues and the concerns about how the evidence was gathered, the court was not satisfied the prosecution had proved the charge beyond reasonable doubt. The DUI conviction was quashed accordingly.
On the speeding charge, the court reached a different conclusion. Despite rejecting significant parts of the appellant's own evidence as implausible (including his account of travelling to refuel a tractor at night and his explanation for carrying large sums of cash), the court was independently satisfied beyond reasonable doubt that the radar measurement of 119 kilometres per hour was accurate. The speeding conviction was confirmed.
Orders Made
- Conviction for exceeding the speed limit (by more than 45 km/h) confirmed
- Penalty and disqualification period imposed by the Magistrate for the speeding offence confirmed (disqualification period noted as having already expired)
- Conviction for drive under the influence of alcohol quashed
- Disqualification period and fine imposed for the DUI offence quashed
Key Takeaways
- The District Court quashed a DUI conviction where the credit of the principal prosecution witness was significantly undermined by a prior history of complaint with the appellant and prejudicial statements made in evidence.
- Where a police officer routinely tape-records conversations with members of the public as a personal practice, that conduct may constitute a criminal offence under sections 5 and 11 of the Listening Devices Act 1984, and evidence derived from such recordings may be regarded as illegally or unlawfully obtained.
- Separate charges arising from the same incident can produce different outcomes on appeal: the court confirmed the speeding conviction while quashing the DUI conviction, based on distinct assessments of the evidence for each charge.
- Rejection of an appellant's evidence as implausible does not automatically establish the prosecution case; the court must still be independently satisfied of guilt beyond reasonable doubt on the evidence as a whole.
- An appellant's lack of legal representation did not prevent the court from identifying and flagging the Listening Devices Act issue, even where no objection to the evidence had been taken at first instance.
Legislation and Cases Referenced
Legislation:
- Listening Devices Act 1984 (NSW), ss 5 and 11
Cases cited: No cases were cited in the judgment.