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District Court 29 October 2019

R v Cresnar (No 2)

[2019] NSWDC 671

Public order & justice offences

Citation: R v Cresnar (No 2) [2019] NSWDC 671
Court: District Court of New South Wales
Date: 29 October 2019
Judge: Grant DCJ

Background

The accused faced a two-count indictment under the ICAC Act 1988. Count one charged him with knowingly giving false evidence before the Independent Commission Against Corruption (ICAC). Count two charged him with attempting to cause another person, Jason Bastow, to give false evidence at an ICAC hearing on 21 August 2014.

The Crown sought to rely on admissions made by the accused during a public hearing before ICAC on 23 January 2015. During that hearing, counsel assisting questioned the accused about a letter dropped at Bastow's home. The letter contained an explanation for payments traced to Bastow's credit card, referencing items found at the accused's home, including a Pioneer Blu-ray player, a Bosch fridge, and a Sony TV. The Crown argued these admissions, taken with other circumstantial evidence, pointed to the accused as the author of that letter.

The problem was procedural. The accused had previously given evidence at a private compulsory examination on 18 August 2014. Under the ICAC Act, evidence from compulsory examinations is subject to suppression unless the Commission lifts that order. Counsel assisting referenced that earlier compulsory examination evidence during the public hearing without first applying to lift the suppression order. The Crown conceded this was a procedural irregularity.

  • Whether the admissions made during the ICAC public hearing on 23 January 2015 should be excluded under s 90 of the Evidence Act on the grounds that it would be unfair to use them against the accused.
  • Whether those same admissions should be excluded under s 138 of the Evidence Act on the basis that they were obtained improperly or in contravention of an Australian law (specifically, the suppression provisions of the ICAC Act).
  • How the competing factors under s 138(3) should be weighed, including the probative value of the evidence, the seriousness of the offence, the gravity of the contravention, and whether the contravention was deliberate or reckless.

Decision

Grant DCJ focused his analysis primarily on s 138 of the Evidence Act, which deals with improperly or illegally obtained evidence. The court accepted that evidence is not automatically excluded under s 138 but that the discretion must be exercised by weighing the desirability of admitting the evidence against the undesirability of admitting evidence obtained through an impropriety.

On probative value, the court acknowledged the admissions carried real weight and that substantial circumstantial evidence existed independently of them. The Crown could still point to the items found, the credit card records, and the timing of the letter relative to the compulsory examination. However, the court noted this meant the evidence was not indispensable to the Crown's case.

On the gravity of the contravention, Grant DCJ found it serious. Publication of compulsory examination evidence without a lifting order is itself a criminal offence. Crucially, the day before the impugned hearing, the same senior counsel assisting had applied to lift a suppression order in respect of this very accused's compulsory examination evidence, demonstrating clear familiarity with the procedure. The court therefore characterised the failure as reckless rather than deliberate but still treated it as a significant contravention.

Weighing all the relevant factors, the court exercised its discretion in favour of the accused. The failure to observe a fundamental right afforded under the ICAC Act had directly produced the admissions in question. The evidence was excluded pursuant to s 138.

Orders Made

  • The admissions made by the accused at the ICAC public hearing on 23 January 2015 (transcript pp 464-467) were excluded pursuant to s 138 of the Evidence Act.

Key Takeaways

  • The District Court held that a failure to lift a suppression order before publicly using compulsory examination evidence at ICAC constituted a serious contravention of Australian law, sufficient to engage the exclusionary discretion under s 138 of the Evidence Act.
  • Under s 138, exclusion is not automatic on a finding of impropriety. The court must weigh the desirability of admitting the evidence against the undesirability of admitting improperly obtained evidence, having regard to the specific factors listed in s 138(3).
  • Where improperly obtained admissions exist alongside independent circumstantial evidence, their exclusion does not necessarily end the prosecution. The court noted the Crown retained other evidence to support count two.
  • A contravention can be reckless rather than deliberate and still be treated as sufficiently grave to justify exclusion, particularly where the person committing the procedural error was demonstrably familiar with the required procedure.
  • Publication of compulsory examination evidence from ICAC without a Commission order lifting the suppression is itself a criminal offence, and courts will treat that underlying legislative protection as carrying real weight in the s 138 balancing exercise.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 90, 138
- Independent Commission Against Corruption Act 1988 (NSW), ss 87(1), 89(a), 112(1)(d)

Cases:
- EM v The Queen (2007) 232 CLR 67
- R v EM [2003] NSWCCA 374
- The King v Lee (1950) 82 CLR 133
- The Queen v Swathfield (1988) 192 CLR 159