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District Court 12 September 2014

R v DF

[2014] NSWDC 149

Sexual offencesPublic order & justice offences
PRE TRIAL ORDERS SURVEILLANCE DEVICE WARRANT

Citation: R v DF [2014] NSWDC 149
Court: District Court of NSW
Date: 12 September 2014
Judge(s): Colefax SC DCJ

Background

The accused faced six counts on an indictment alleging historical sexual assaults on his stepson between 1979 and 1982, when the complainant was aged nine to eleven. The charges included acts of indecency, buggery, and sexual intercourse. The accused pleaded not guilty to all counts.

In May 2012, a solicitor acting for the accused formally notified police that the accused was exercising his right to silence and would not participate in any interview. Despite this, police obtained a warrant under the Surveillance Devices Act 2007 in September 2012 and, in December 2012, deployed the complainant (as an acknowledged agent of the State) to engage the accused in a recorded conversation.

The Crown sought to tender that recorded conversation at trial. The defence applied in a pre-trial hearing under section 139 of the Criminal Procedure Act 1986 to have the evidence excluded. The court held that pre-trial hearing and delivered the ruling summarised here.

Legal Issues

  • Whether the recorded conversation was obtained in a manner that impermissibly sought to deprive the accused of his right to silence, rendering it inadmissible under section 90 of the Evidence Act 1995
  • Whether the use of the complainant as an admitted State agent was consistent with the purpose and structure of the Surveillance Devices Act 2007
  • Whether the probative value of the disputed evidence was outweighed by the danger of unfair prejudice under section 137 of the Evidence Act 1995

Decision

Issue 1: Right to silence and the use of a State agent

The court identified two factual features that distinguished this case from its earlier decision in R v LDV (No. 2) [2013] NSWDC 215, and that, if anything, made exclusion even more clearly warranted. First, the police obtained and used the surveillance warrant knowing the accused had already exercised his right to silence following legal advice, and the warrant was an express strategy to overcome that exercise of that right. Second, the Crown candidly conceded that the complainant was deployed as an agent of the State.

The court applied the reasoning from R v LDV (No. 2), which it was not persuaded was clearly wrong. That reasoning drew on the combined effect of section 3 of the Surveillance Devices Act and section 90 of the Evidence Act, holding that it would be unfair to admit evidence obtained through trickery that deprived an accused of the privilege against self-incrimination, a principle approved by the High Court in Swaffield v R (1996) 88 A Crim R. The court found those principles applied with even greater force here.

Issue 2: Probative value versus unfair prejudice

The court also addressed the section 137 argument, noting that the admissions captured in the recording were expressed in general terms. They could potentially relate to any of the various alleged acts but were not specific to any of them. The court assessed the probative value of the evidence as weak and the risk of unfair prejudice as high. On this alternative basis, the court found the evidence should be excluded under section 137 as well, applying the principles collected in R v Pavitt [2007] NSWCCA 88.

Orders Made

  • Pursuant to section 139(2) of the Criminal Procedure Act, the recorded conversation between the complainant and the accused on 14 December 2012 is not to be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014.

Key Takeaways

  • The District Court excluded a conversation recorded under a Surveillance Devices Act warrant where police had obtained the warrant as a deliberate strategy to circumvent an accused's formally exercised right to silence, and where the person wearing the device was an admitted State agent.
  • Where an accused has, through a solicitor, expressly invoked the right to silence before a surveillance strategy is implemented, that prior exercise of the right is a significant factor weighing in favour of exclusion under section 90 of the Evidence Act 1995.
  • The court applied judicial comity principles to its own prior decision in R v LDV (No. 2), holding that it should follow that ruling unless it was clearly wrong or the facts were relevantly distinguishable, and found neither condition was met.
  • Under section 137 of the Evidence Act, vaguely expressed admissions that cannot be tied to specific charged acts may carry weak probative value even if they are superficially inculpatory, leaving them susceptible to exclusion where the risk of unfair prejudice is assessed as high.
  • The Crown's concession that the complainant was a State agent was treated as a candid and significant admission that reinforced, rather than merely supported, the case for exclusion.

Legislation and Cases Referenced

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

Cases
- Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCC 112; R v LDV (No.2) [2013] NSWDC 215