Citation: R v Cornwell [2003] NSWSC 97 (revised 19/08/2004); reported at 57 NSWLR 82; 141 A Crim R 164
Court: Supreme Court of New South Wales, Common Law Division
Date: 20 February 2003
Judge(s): Howie J
Background
The accused was charged with conspiracy to import a commercial quantity of cocaine into Australia. The Crown's case rested substantially on conversations recorded at the accused's Woolloomooloo premises using a listening device installed by the National Crime Authority (NCA) under a warrant issued pursuant to the Customs Act (Cth).
The NCA had been investigating a proposed cocaine importation for approximately a month before obtaining the warrant. Surveillance placed the accused in contact with a co-accused, Lawrence, on several occasions, including meetings in Queensland and Sydney, and evidence suggested Lawrence had been staying at the accused's premises.
The accused challenged the admissibility of the recorded conversations on multiple grounds: that the warrant affidavit contained inaccuracies about Lawrence's movements on 27 February 2001; that parts of the conversations should be edited out; and that references to uncharged criminal conduct within those conversations were inadmissible.
Legal Issues
- Whether a misstatement in the affidavit supporting the listening device warrant constituted an "impropriety" under s 138 of the Evidence Act 1995, rendering the recorded conversations inadmissible
- Whether the court should exercise its discretion under s 138 to exclude the evidence even if it was improperly obtained
- Whether specific portions of the recorded conversations should be edited out as irrelevant or prejudicial under s 137
- Whether evidence of uncharged criminal conduct contained in the conversations (including apparent references to current drug distribution activity) was admissible to prove the relationship between the accused and Lawrence as alleged co-conspirators
Decision
The warrant affidavit and impropriety under s 138
Howie J accepted that the affidavit supporting the warrant contained a misstatement: it described Lawrence as having been observed walking away from the unit block on the morning of 27 February 2001, when the surveillance log contained no such observation. However, his Honour found this misstatement did not constitute an "impropriety" within the meaning of s 138. The affidavit otherwise contained ample accurate information to support the issuing officer's satisfaction that reasonable grounds existed. The misstatement related to a peripheral detail and did not materially mislead the authorising officer.
Even if the misstatement had amounted to an impropriety, Howie J indicated the discretion under s 138 would have been exercised in favour of admitting the evidence. The seriousness of the alleged offence, the overall strength of the legitimate basis for the warrant, and the gravity of the cocaine importation charge all weighed heavily in favour of admission.
Editing of conversations and uncharged conduct
Howie J declined to require wholesale editing of the recorded conversations. Evidence of uncharged criminal conduct, including apparent references to current drug distribution and dealings with money, was admissible to prove the nature of the relationship between the accused and Lawrence as alleged co-conspirators. The court held that this evidence went to establishing the relationship and common purpose between the parties, which was a necessary element of the conspiracy charge. The fact that parts of conversations touched on matters beyond the specific importation did not render those parts inadmissible.
Howie J reserved final rulings on specific portions of the conversations under s 137, including matters relating to a firearm purchase, and noted the Crown had already conceded certain passages would not be led. The balance of the conversations with Lawrence were found to be generally admissible.
Orders Made
• Conversations between the accused Cornwell and Lawrence are admissible as evidence
• Conversations in which the accused was a participant are admissible
• Evidence of the accused's involvement in drug trafficking is admissible
• The balance of conversations tendered against Cornwell are admissible, apart from conversations relating to the purchase of a firearm (to be determined at a later date)
• Crown's concession regarding certain parts of conversations will not be led is noted
Key Takeaways
- A misstatement in a listening device warrant affidavit does not automatically constitute "impropriety" under s 138 of the Evidence Act 1995 where the misstatement concerns a peripheral factual detail and the affidavit otherwise discloses a sufficient legitimate basis for the warrant.
- Under s 138, even where impropriety in obtaining evidence is established, the court retains a discretion to admit the evidence. The seriousness of the charged offence is a significant factor in that balancing exercise.
- Evidence of uncharged criminal conduct within recorded conversations can be admissible in a conspiracy trial where it tends to prove the nature and extent of the relationship between alleged co-conspirators, rather than merely showing a propensity for criminal behaviour.
- The absence of an observation from a surveillance log does not necessarily invalidate a warrant affidavit that includes a reference to that observation, provided the overall affidavit contains independently sufficient grounds to satisfy the authorising officer.
- Recordings need not be edited simply because portions touch on matters collateral to the principal charge; relevance to establishing the alleged conspiratorial relationship can sustain admissibility, subject to any specific rulings under s 137.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 48(1), 97, 137, 138, 139
- Customs Act 1901 (Cth)
Cases
- DPP v Carr [2002] NSWASC 194
- R v Dalley [2002] NSWCCA 284
- R v Dellapatrona and Duffield (1993) 31 NSWLR 123
- Butera v DPP (Vic) (1987) 164 CLR 180
- R v Quach [2002] NSWCCA 519
- Harriman v The Queen (1989) 167 CLR 590