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Court of Criminal Appeal 30 November 2017

R v Grech; R v Kadir

[2017] NSWCCA 288

Other

Citation: R v Grech; R v Kadir [2017] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 30 November 2017
Judges: Ward JA; Price J; Beech-Jones J

Background

The two accused faced charges of serious animal cruelty under the Crimes Act 1900 (NSW), arising from allegations that they used live rabbits and a possum as bait to train greyhounds at a property in Londonderry. The charges were brought after a private animal welfare organisation, Animals Australia, arranged for a freelance investigator to enter the accused's property without permission on multiple occasions between December 2014 and January 2015. The investigator covertly installed a video recording device near a training area known as a "bull ring," producing seven separate recordings.

The covert entry involved trespasses onto the accused's property and a neighbouring property, and the use of the recording device breached the Surveillance Devices Act 2007 (NSW). The recordings were subsequently shared with the RSPCA and the ABC. Following the recordings, an undercover operative obtained alleged admissions from one of the accused, and the RSPCA later executed a search warrant on the property.

At the commencement of the trial in the District Court, the accused successfully applied to exclude all of this evidence under s 138 of the Evidence Act 1995 (NSW), which gives a court a discretion to exclude illegally or improperly obtained evidence. The Crown's case on most counts was effectively eliminated by those rulings. The Director of Public Prosecutions applied to the Court of Criminal Appeal for leave to appeal those exclusions.

  • Whether the trial judge erred in excluding all seven surveillance recordings without individually assessing each recording against the considerations in s 138(3) of the Evidence Act 1995 (NSW)
  • Whether the finding that the gravity of the contraventions was "very high and serious" was reasonably open on the facts
  • Whether the trial judge properly assessed the difficulty of obtaining the evidence without committing a breach of Australian law
  • Whether the trial judge erred in excluding evidence obtained during the execution of the RSPCA search warrant, given that exclusion depended on the prior exclusion of the surveillance footage
  • Whether the alleged admissions made by one accused to an undercover operative were sufficiently connected to the original illegality to justify exclusion under s 138

Decision

The Court of Criminal Appeal partially upheld the Crown's appeal. The Court found that the trial judge had not erred in excluding six of the seven surveillance recordings. The illegality involved repeated and deliberate trespass and multiple breaches of the Surveillance Devices Act, committed by a private organisation to advance its own purposes rather than for law enforcement. The Court accepted that the trial judge's characterisation of the contraventions as serious was reasonably open, given their deliberate and repeated nature.

However, the Court found error in the exclusion of the first recording, made on 5 December 2014. The significance of this recording differed from the later ones: it was obtained on the initial entry, before a decision had been made to return repeatedly. The trial judge had not separately assessed each recording against the s 138(3) factors, and when that analysis was applied individually to the first recording, the balance fell differently.

On the search warrant evidence, the trial judge's decision to exclude it was premised entirely on the prior exclusion of the surveillance footage. Because the Court reinstated the first recording, that reasoning could not stand. The Court found the search warrant evidence should be admitted.

On the alleged admissions, the Court found the connection between the original illegality and the later conversations was too tenuous to sustain exclusion. The admissions were obtained through a separate operation, without direct illegality, and the link to the original trespass and surveillance breaches was described as barely affecting the "primary taint." Admitting the evidence of those conversations was unlikely to amount to judicial approval of the original unlawful conduct.

Orders Made

  • The ruling excluding the recording made on 5 December 2014 was vacated; that recording was declared admissible.
  • The ruling excluding evidence obtained during the execution of the search warrant on 12 February 2015 was vacated; that evidence was declared admissible.
  • The ruling excluding the alleged admissions made on 13 January 2015 was vacated; the evidence of alleged admissions made on 13 January 2015 and 18 January 2015 was declared admissible.

Key Takeaways

  • Under s 138 of the Evidence Act 1995 (NSW), where multiple discrete pieces of surveillance footage are sought to be excluded, the discretion must be exercised by reference to the particular circumstances of each recording rather than by treating all recordings as a single undifferentiated category.
  • Deliberate and repeated trespass combined with knowing breaches of the Surveillance Devices Act 2007 (NSW) by a private organisation can constitute serious contraventions capable of justifying exclusion of improperly obtained evidence, even where the actors were not law enforcement officers.
  • The Court of Criminal Appeal confirmed that the "fruit of the poisonous tree" doctrine, as applied in Australia, requires a meaningful causal connection between the original illegality and the evidence sought to be excluded; a tenuous or remote connection will not be sufficient to engage the exclusionary discretion under s 138.
  • Where a trial judge's decision to exclude derivative evidence (such as search warrant evidence) rests entirely on a prior exclusion ruling that is subsequently reversed on appeal, that derivative exclusion also falls away.
  • In assessing the "difficulty of obtaining the evidence without contravention" under s 138(3)(h), the court is required to engage with whether lawful means were realistically available, not merely whether unlawful means were chosen as a matter of convenience.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 90, 137, 138, 139
- Surveillance Devices Act 2007 (NSW), ss 7, 8, 11, 12
- Crimes Act 1900 (NSW), s 530
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Prevention of Cruelty to Animals Act 1979 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Greyhound Racing Act 2009 (NSW)
- National Parks and Wildlife Act 1974 (NSW)

Cases
- Ridgeway v The Queen (1995) 184 CLR 19
- Bunning v Cross (1978) 141 CLR 54
- House v The King (1936) 55 CLR 499
- Norbis v Norbis (1986) 161 CLR 513
- IMM v The Queen [2016] HCA 14
- ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
- R v Gallagher; R v Burridge [2015] NSWCCA 228
- R v Rapolti [2016] NSWCCA 264
- Robinson v Woolworths Ltd [2005] NSWCCA 426
- DPP v Marijancevic [2011] VSCA 355
- Martin v The Queen [2015] ACTCA 38
- Wong Sun v US 371 US 471