Citation: R v Punter [2019] NSWDC 964
Court: District Court of New South Wales
Date: 9 April 2019
Judge: Tupman DCJ
Background
The accused, a 38-year-old man who had worked as a student teacher at a Sydney high school for six weeks in late 2016, faced two counts under Commonwealth law. Count 1 alleged he used a carriage service to groom a person he believed to be under 16 years of age for sexual activity. Count 2, charged as an alternative, alleged he used a carriage service to transmit indecent communications to a person he believed was under 16.
In early 2017, two students from the school where the accused had worked complained to school authorities about his Facebook contact with them over the Christmas period. Both students were aged 16 to 17 at the time. The complaints were passed to police, who then referred the matter to the NSW Police Child Exploitation Internet Unit (CEIU). Officers from CEIU assumed the online identity of a 15-year-old boy named "Jack" and began communicating with the accused via Facebook Messenger. The accused eventually provided his mobile number, leading to three telephone calls that police recorded.
The Crown case rested substantially on 77 Facebook communications between the accused and the undercover officer, as well as the three recorded telephone calls. Before trial, the accused applied to have all of this evidence excluded, arguing that police had acted illegally or improperly in obtaining it.
Legal Issues
- Whether the Facebook messages were obtained illegally or improperly, such that they should be excluded under s 138 of the Evidence Act 1995 (NSW)
- Whether the recorded telephone calls were obtained in breach of the Surveillance Devices Act 2007 (NSW), and if so, whether they should nonetheless be admitted in the exercise of discretion under s 138
- Whether police were required to obtain a Commonwealth controlled operations authority (in addition to or instead of the NSW authority they held), and whether their failure to do so amounted to impropriety
Decision
Facebook messages. Her Honour found that the Facebook communications were not obtained illegally. The CEIU unit held a valid NSW controlled operations authority and was conducting a proactive investigation into suspected online child grooming, a well-recognised policing function. The complaints from two students at the accused's former school gave police reasonable grounds to suspect him of grooming behaviour. The conduct was not regarded as sufficiently improper to warrant exclusion under s 138, particularly given the serious nature of the alleged offences and the significant probative value of the messages.
Recorded telephone calls. The lawfulness of the telephone recordings was less clear on the evidence before the court. The question turned on whether the calls fell within the definition of "private conversations" under the Surveillance Devices Act 2007 (NSW) and whether the relevant controlled operations authority covered the recording. Her Honour declined to make a definitive finding on this point, but proceeded on the basis that either the calls were lawfully recorded (and so did not fall for discretionary exclusion at all), or if they were unlawfully recorded, the discretion under s 138 would still favour admission. The court characterised any breach as, at most, a reckless misunderstanding rather than a grave one, noting that officers had incorrectly assumed their authority covered the calls without reading the applicable instructions.
Commonwealth controlled operations authority. The accused argued that because police knew they were targeting Commonwealth offences, they should have obtained a Commonwealth controlled operations authority. Her Honour rejected this argument, finding that Gedeon v Commissioner of the NSW Crime Commission did not compel police to obtain a Commonwealth authority alongside a State one. The failure to do so did not amount to impropriety in the circumstances.
Overall conclusion. Balancing the considerations under s 138(3), including the seriousness of the offences, the significant probative value of the evidence, and the nature of any breach, Her Honour declined to exclude the evidence. The application to have the evidence in its totality treated as inadmissible was refused.
Orders Made
• The application that the evidence in its totality be regarded as inadmissible is not granted
• Evidence is admitted pursuant to s 138 of the Evidence Act 1995 (NSW)
Key Takeaways
- The District Court confirmed that proactive online undercover operations by specialist police units can be lawful and non-improper where credible complaints provide reasonable grounds to suspect a target, even without a prior criminal history.
- Under s 138 of the Evidence Act 1995 (NSW), a court must weigh factors including the gravity of any breach, the seriousness of the offence, and the probative value of the evidence before excluding improperly or illegally obtained material.
- A reckless but non-deliberate misunderstanding about the scope of a controlled operations authority may not constitute a grave breach sufficient to tip the s 138 balance toward exclusion.
- State police investigating conduct that gives rise to Commonwealth offences are not automatically required to obtain a Commonwealth controlled operations authority in addition to a State one; the failure to do so does not in itself establish impropriety.
- Where the lawfulness of evidence is genuinely uncertain on the facts, a court may evaluate admissibility under s 138 across both possible scenarios (lawful and unlawful) and arrive at the same outcome in either case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth), ss 474.27, 474.27A(1)
- Evidence Act 1995 (NSW), ss 138, 138(3)
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 5(2A), 8
- Surveillance Devices Act 2007 (NSW), ss 7(1), 7(4)
Cases
- Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120
- Ridgeway v The Queen (1995) 184 CLR 19
- The Queen v Priest [2011] ACTSC 18
- The Queen v Stubbs [2009] ACTSC 63