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4
Court of Criminal Appeal 7 July 2015

R v DRF

[2015] NSWCCA 181

Also reported as (2015) 263 A Crim R 573
Sexual offences
APPEAL WARRANT ISSUED PROPERLY EXCLUDED EVIDENCE ADMISSIBLE APPEAL EVIDENCE ACT 1995 (NSW), S 90 R V BROYLES [1991] 3 SCR 595 THE QUEEN V SWAFFIELD

Citation: R v DRF [2015] NSWCCA 181
Court: Court of Criminal Appeal, NSW
Date: 7 July 2015
Judge(s): Leeming JA, Simpson JA, Schmidt J

Background

The respondent faced charges in the District Court of sexual misconduct against his stepson, including indecent assault, buggery, and sexual intercourse without consent. The alleged offending occurred between approximately 1979 and 1982, when the complainant was aged nine to twelve. Decades later, the complainant disclosed the alleged abuse in detail to the police.

As part of the investigation, police obtained a surveillance device warrant and equipped the complainant to record a conversation with the respondent. During that conversation, the respondent made statements capable of being interpreted as partial admissions of sexual impropriety. The respondent was at all material times aware he was under police investigation, had retained solicitors, and had already made partial admissions to his wife (the complainant's mother) when she put the allegations to him directly.

The trial judge in the District Court excluded the recording under s 90 of the Evidence Act 1995 (NSW), finding that it would be unfair to the respondent to admit it. The Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

  • Whether the exclusion of the recording evidence "substantially weakened" the Crown case, thereby conferring appellate jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912 (NSW).
  • Whether the surveillance device warrant was validly issued under the Surveillance Devices Act 2007 (NSW), given the respondent's argument that such warrants should be limited to "serious crime" investigations.
  • Whether the primary judge erred in exercising the discretion to exclude the recording under s 90 of the Evidence Act 1995 (NSW) on the basis of unfairness.

Decision

Jurisdiction: The Court accepted that exclusion of the recorded conversation substantially weakened the Crown case within the meaning of s 5F(3A). Without the recording, the prosecution would rely primarily on the complainant's testimony and the prior partial admissions relayed through the complainant's mother. The recorded statements were materially significant to the Crown's case, satisfying the threshold for the appeal to proceed.

Validity of the warrant: The Court rejected the argument that surveillance device warrants under the Surveillance Devices Act 2007 (NSW) are limited to "serious crime." The Act expressly confers the power to issue warrants in the investigation of indictable offences. The respondent was charged with indictable offences, and the warrant was therefore properly issued. The earlier District Court decision of R v LDV (No 2) [2013] NSWDC 215, which adopted a narrower approach, was identified as erroneous and should not be followed.

Unfairness under s 90: Simpson JA, with whom Schmidt J agreed, held that the primary judge's decision to exclude the recording was legally flawed. Two matters were central. First, the respondent already knew he was under police investigation, had legal representation, and had previously made partial admissions to his wife. His responses in the recorded conversation were not influenced by police tactics directed at a vulnerable or uninformed person. Second, the recording actually enhanced the reliability of the evidence: had the complainant merely confronted the respondent without a recording device and later given oral evidence of the exchange, that evidence would likely have been admissible without question, but would have been subject to the ordinary frailties of recollection. The Court found no basis on these facts to conclude that the manner of obtaining the evidence rendered its use unfair.

Scope of the holding: Both Leeming JA and Simpson JA were careful to confine the decision to its particular facts. Leeming JA outlined a spectrum of circumstances in which a motivated complainant equipped with a recording device might engage in conduct that could, in a different case, give rise to genuine s 90 unfairness, including deliberately exploiting the accused's vulnerability or using ambiguous language with a view to manufacturing admissions. Neither judge expressed a concluded view that such circumstances could never warrant exclusion, and the Court expressly declined to resolve that question on a general basis.

Orders Made

  • The appeal is allowed.
  • The ruling of the District Court excluding evidence of the conversation between the complainant and the respondent (12 September 2014) is quashed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 5F(3A) of the Criminal Appeal Act 1912 (NSW) is engaged where excluded evidence materially and substantially weakens the prosecution case, even if it does not eliminate it entirely.
  • Under the Surveillance Devices Act 2007 (NSW), warrants may lawfully be issued in the investigation of any indictable offence; there is no requirement that the investigation concern "serious crime" as a distinct category.
  • The District Court decision in R v LDV (No 2) [2013] NSWDC 215 was identified as representing an erroneously narrow approach to the admissibility of covertly obtained evidence and should not be followed.
  • Where an accused is already aware of a police investigation, has legal representation, and has previously made related admissions to a third party, the fact that a complainant was equipped by police with a recording device does not, of itself, render the resulting evidence unfair for the purposes of s 90.
  • Both Leeming JA and Simpson JA emphasised that this decision does not preclude a finding of s 90 unfairness in future cases involving complainant-operated surveillance devices, particularly where a complainant's conduct in obtaining the recording is itself manipulative or exploitative.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Criminal Procedure Act 1986 (NSW), ss 139, 294AA
- Evidence Act 1995 (NSW), ss 90, 108, 137
- Surveillance Devices Act 2007 (NSW), ss 3, 4, 17, 19(2)
- Interpretation Act 1987 (NSW), s 34
- Listening Devices Act 1984 (NSW)

Cases:
- R v DF [2014] NSWDC 149 (decision under appeal)
- R v LDV (No 2) [2013] NSWDC 215
- R v Burton [2013] NSWCCA 335
- The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159
- Em v The Queen [2007] HCA 46; 232 CLR 67
- R v Broyles [1991] 3 SCR 595
- R v XY [2013] NSWCCA 121; 84 NSWLR 363
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Carr v The Queen [1988] HCA 47; 165 CLR 314
- Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
- Ewen v R [2015] NSWCCA 117