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Court of Criminal Appeal 20 December 2013

R v TD

[2013] NSWCCA 337

Public order & justice offences
CRIMINAL LAW SOLICIT TO MURDER EVIDENCE CROWN APPEAL CRIMINAL APPEAL ACT 1912, 5F(3A) CONTROLLED OPERATION NATURE OF CONTROLLED ACTIVITY

Citation: R v TD [2013] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judge(s): Hoeben CJ at CL; Simpson J (principal judgment); Hall J

Background

The respondent was alleged to have solicited the murder of her former partner, the father of her young son. In early May 2012, NSW Police became aware she had been making inquiries about arranging a murder. An undercover police operative (identified in the judgment as UCO535) was deployed to engage with her. The conversations between the respondent and UCO535 were recorded pursuant to an Authority issued under the Law Enforcement (Controlled Operations) Act 1997 (LE(CO) Act).

At trial in the District Court, the trial judge excluded the recorded conversations from evidence. The judge found that UCO535 had tended to steer the respondent away from options other than murder, and that her decision to solicit murder had effectively been brought about by the undercover operative's conduct. On that basis, the trial judge concluded the evidence was unlawfully obtained.

The Director of Public Prosecutions appealed under s 5F(3A) of the Criminal Appeal Act 1912, which permits a Crown appeal where a ruling eliminates or substantially weakens the prosecution's case. The parties accepted the ruling met that threshold, and the Court of Criminal Appeal had jurisdiction to hear the appeal.

  • Whether the Authority issued under the LE(CO) Act was validly granted
  • Whether UCO535's conduct fell within the scope of the controlled activity identified in the Authority
  • Whether the evidence was obtained unlawfully, having regard to the LE(CO) Act and any breach of the applicable code of conduct
  • Whether, if the evidence were unlawfully obtained, it should nonetheless be admitted under s 138 of the Evidence Act 1995

Decision

Simpson J (with whom Hoeben CJ at CL and Hall J agreed) examined the LE(CO) Act framework in detail. The Act was enacted in response to the High Court's decision in Ridgeway v The Queen (1995), which excluded evidence obtained through a controlled drug importation that lacked statutory authorisation. The LE(CO) Act creates a scheme under which law enforcement officers may engage in activities that would otherwise be unlawful, provided they act within a validly granted Authority. Section 16 of the Act protects participants only to the extent their conduct is authorised by, and accords with, that Authority.

The trial judge's factual conclusions were the central point of contention. The Court of Criminal Appeal found those conclusions were not supported by the evidence. A review of the recorded conversations showed that UCO535 had repeatedly sought to have the respondent articulate what she wanted done, and that it was the respondent herself who first proposed specific methods, including a drug overdose. The trial judge's characterisation that UCO535 had raised obstacles to options other than murder was found to be factually wrong.

The Court also noted that the trial judge had impermissibly disregarded evidence beyond the recordings themselves. Detective Peverill's unchallenged evidence that the respondent had already been making inquiries about having BV murdered before any undercover contact was highly relevant to whether her conduct was induced or encouraged by UCO535, or was something she could reasonably have been expected to engage in regardless. That evidence was not considered by the trial judge.

Because the finding of unlawful conduct was not open on the evidence, the question of whether to exercise the discretion under s 138 of the Evidence Act to admit unlawfully obtained evidence did not arise.

Orders Made

  • The Director's appeal was upheld.
  • The District Court's ruling excluding evidence of the conversations between UCO535 and the respondent was vacated.

Key Takeaways

  • Section 16 of the LE(CO) Act protects law enforcement participants from liability only for conduct that is authorised by, and engaged in accordance with, the relevant Authority. Conduct outside the Authority's terms does not attract that protection.
  • A controlled operation does not become unlawful simply because an undercover operative engaged closely with a suspect. The critical question under s 7(1)(a) of the LE(CO) Act is whether the operative induced or encouraged the suspect to engage in criminal activity they could not reasonably have been expected to engage in absent that inducement.
  • The Court of Criminal Appeal confirmed that a trial judge's factual findings on admissibility must be grounded in all available evidence. Disregarding unchallenged evidence, such as a detective's account of conduct predating undercover contact, is an error capable of vitiating a ruling.
  • Where the conclusion that evidence was unlawfully obtained cannot be sustained on the facts, there is no occasion to consider the s 138 Evidence Act discretion to admit unlawfully obtained evidence.
  • The District Court's characterisation of the undercover operative's conduct was overturned on a close reading of the conversation transcripts, illustrating that appellate courts will scrutinise the factual basis for admissibility rulings in Crown appeals under s 5F(3A) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 3, 5, 6, 7, 8, 13, 13A, 16
- Law Enforcement (Controlled Operations) Regulation 2007 (NSW), Sch 2, cl 5
- Law Enforcement (Controlled Operations) Regulation 2012 (NSW)

Cases:
- Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
- Gedeon v The Commissioner of the NSW Crime Commission [2008] HCA 43; 236 CLR 120