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District Court 16 May 2013

R v LDV (No. 2)

[2013] NSWDC 215

Assault & violence
SURVEILLANCE DEVICE WARRANT WHETHER EVIDENCE OBTAINED RELEVANT WHETHER WARRANT DEFECTIVE ON ITS FACE WHETHER WARRANT INADMISSIBLY BROAD TENDER OF PRETEXT CALLS REJECTED PRE

Citation: R v LDV (No. 2) [2013] NSWDC 215
Court: District Court of NSW
Date: 16 May 2013
Judge(s): Colefax SC DCJ

Background

The accused, LDV, faced three counts of assault and indecency allegedly committed against a fifteen-year-old girl, MM, in the early hours of 12 December 2011. MM was the daughter of LDV's close friend, CM, and had been present at a birthday party hosted by LDV. The Crown's case turned in part on MM's identification of LDV as the offender, an issue complicated by her initial uncertainty about whether the person in the room was LDV or her father.

Following the alleged offences, police obtained a surveillance device warrant from Rothman J in the Supreme Court on 20 December 2011. Acting under that warrant, Sergeant Bowles conducted three recorded telephone conversations between LDV and members of MM's family on 21 December 2011. These "pretext calls" were designed to elicit responses from LDV without his knowledge that the calls were being recorded.

The Crown sought to tender the recordings at trial, relying on LDV's verbal responses as evidence of consciousness of guilt and on certain admissions said to be contained in the conversations. LDV did not know, at the time of the calls, that any police investigation had been commenced.

Legal Issues

  • Whether the District Court had jurisdiction to determine the validity of a surveillance device warrant issued by a Supreme Court judge
  • Whether the issuing of such a warrant by a Supreme Court judge constitutes a judicial function (relevant to the court's power to review it)
  • Whether the warrant was defective on its face, including an apparent date error in the period of operation
  • Whether the warrant was inadmissibly broad in scope
  • Whether the surveillance devices were incorrectly or unlawfully installed
  • Whether the pretext calls were impermissibly designed to deprive the accused of his right to silence
  • Whether the evidence of the pretext calls should be excluded under sections 90, 135(a) and 137 of the Evidence Act 1995
  • Whether a restricted access order over part of the police operational manual should be dissolved

Decision

Issue 1: Jurisdiction of the District Court to review the warrant

The court accepted that the issuing of a surveillance device warrant by a Supreme Court judge is not a judicial function. It is an administrative act performed by a judge in a non-judicial capacity. As a consequence, the District Court retained power to examine and determine the validity of the warrant in the context of ruling on the admissibility of evidence obtained under it. The court drew support from the reasoning in cases such as Ousley v The Queen and Kable v NSW in reaching this conclusion.

Issue 2: Validity and scope of the warrant

The warrant contained an apparent date error, specifying a period of operation ending on "19 March 2011" rather than 2012. The court also examined whether the warrant was too broad in scope and whether the manner of attaching the listening device to CM's mobile phone complied with the warrant's terms. These matters were considered in the overall assessment of whether the evidence was lawfully obtained.

Issue 3: Right to silence and the pretext calls

The court found that the pretext calls were, in substance, designed to extract statements from LDV in circumstances where he was unaware of the investigation and therefore unable to make an informed choice about whether to speak. The court characterised this as an exercise that substantially altered, if not extinguished, LDV's right to silence. Relying on the reasoning approved by the High Court in Swaffield v R, the court concluded it would be unfair to permit the Crown to benefit from what amounted to obtaining statements through trickery.

Issue 4: Exclusion of the evidence

The court ordered the exclusion of all three recordings. Even if the prior reasoning on the right to silence were wrong, the court found that the probative value of the calls was outweighed by the danger of unfair prejudice to the accused, applying the principles from R v Shamouil. The exclusion order operated as a pre-trial ruling under section 139 of the Criminal Procedure Act 1986.

Issue 5: Restricted access order

The court was not persuaded that any legitimate police investigation would be imperilled by releasing Part 2 of the police manual for the telephone interface kit. It found an overwhelming public interest in Parliament and the community being aware of how New South Wales police had interpreted the scope of the Surveillance Devices Act 2007. The restricted access order was dissolved, subject to a 21-day stay.

Orders Made

  • Evidence of the three pretext phone calls excluded from the trial, pursuant to sections 90, 135(a) and 137 of the Evidence Act 1995, individually and in combination with section 3 of the Surveillance Devices Act 2007
  • Restricted access order over Part 2 of the police operational manual dissolved, with a 21-day stay on the operation of that dissolution

Key Takeaways

  • The District Court confirmed it holds power to assess the validity of a surveillance device warrant issued by a Supreme Court judge, because the issuing of such a warrant is an administrative rather than a judicial function.
  • Pretext call recordings obtained without the subject's knowledge of an investigation may be excluded where the circumstances amount to an effective denial of the right to silence through deception, a principle traceable to the High Court's endorsement of the reasoning in Swaffield v R.
  • Under sections 90, 135(a) and 137 of the Evidence Act, a court may exclude evidence whose probative value is outweighed by the danger of unfair prejudice, and those provisions may operate in combination with the Surveillance Devices Act 2007.
  • A date error on the face of a surveillance device warrant is a relevant factor in assessing the lawfulness of evidence obtained under it, though this court addressed admissibility through the broader unfairness and prejudice framework rather than on the warrant defect alone.
  • Strong public interest considerations weighed in favour of dissolving a restricted access order over a police operational manual, with the court observing that transparency about police interpretation of surveillance legislation serves a legitimate parliamentary and community interest.

Legislation and Cases Referenced

Legislation
- Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and, Criminal Procedure Act 1986

Cases
- Ousley v The Queen (1997) 192 CLR 69; Kable v NSW (2013) 293 ALR 79; Edwards v The Queen (1993) 178 CLR 193; Commissioner of Police v Barbaro [2001] NSW CCA 57; MacGibbon v Warner (1997) 98 A Crim R 450; Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCCA 112