R v Kovac [2021] NSWDC 85

District Court New South Wales

Medium Neutral Citation: R v Kovac [2021] NSWDC 85 Hearing dates: 18 March 2021 Date of orders: 23 March 2021 Decision date: 23 March 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [72]: Evidence excluded Catchwords: CRIME — Firearms offences — Unauthorised use/possession of firearm - Procedural determination of admissibility of evidence relating to material obtained in contravention to an Australian Law. Legislation Cited: Firearms Act 1996 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) Criminal Procedure Act 1986 (NSW) Road Transport Act Cases Cited: R v Buddee [2016] NSWDC 422 R v Large [2019] 627 Cleland v The Queen (1982) 151 CLR 1 R v Phung & Huynh [2001] NSWSC 115 Azar v DPP [2014] NSWSC 132 Texts Cited: Nil Category: Procedural rulings Parties: Regina (Crown) Kovacs (Accused) Representation: Heffernan Solicitor for the DPP Boys Solicitor for the accused. File Number(s): 2018/00394753 Publication restriction: Unrestricted

Judgment 1. The accused is charged by way of an indictment with one count of possessing more than three firearms namely seven firearms that were not registered and which were prohibited in breach of section 51D(2) Firearms Act 1996. 2. The applicant (the accused) seeks an order that the evidence of the prohibited firearms being the prohibited firearms themselves be excluded from the evidence in the trial. The basis of the application is said to be that the search carried out by the police uncovering the firearms was illegal. 3. I note this application was first heard before McLennan SC DCJ. His Honour found that the applicant had established an illegality or contravention of an Australian law for the purposes of section 138 of the Evidence Act ("EA"). In short his Honour found that a caution should have been given to the accused to the effect that he did not need to say or do anything prior to the police making the general inquiry as to whether the accused (and those with him) had any drugs or weapons and carrying out a search of the vehicle they were travelling in and which had been stopped purportedly for the purpose of a random breath test. His Honour went on to note that even when the general inquiry was answered, by admissions being made by the accused to having "gel blasters", a caution was not given. The basis found by his Honour that this warning was required was because in his Honour's view by this stage the accused was detained under s21 of the Law Enforcement (Powers & Responsibilities) Act 2002, ("LEPRA"), and was therefore under arrest, and s139 EA required the caution, and further that the necessary suspicion to trigger s21 existed at either the first or second of the points in time just referred to. His Honour then considered matters relevant to the exercise of his discretion under section 138 and determined that the evidence should be admitted. 4. After that decision was made and as the matter was proceeding to or had reached trial, for reasons not disclosed in this hearing, his Honour recused himself. 5. Following that the matter came before Judge North who made an order pursuant to section 130A of the Criminal Procedure Act that the earlier decision Judge McLennan SC is not binding and should be redetermined. This hearing is that redetermination. 6. I note at the first hearing there was oral evidence. The parties have provided me with an agreed redacted transcript of that hearing. The parties have not provided me with the reasons of Judge McLennan SC beyond 2 pages from which I extracted the reasons summarised above. In those circumstances it seems to me that the way I should approach the determination of this application is as if it is a mixture of a hearing de novo and a rehearing. That is, it is a hearing de novo in the sense that I will need to make a determination afresh based on the material before me and without needing to find any error on the part of the Judge McLennan SC, nor with reference to his judgement beyond the two pages I have been provided. On the other hand it is a rehearing in that I need to be guided by the Judge McLennan SC's views of the witnesses as they gave evidence. In that regard, with one proviso, there does not seem to be any dispute as to the actual facts in this matter. That proviso is that whilst there is no real dispute as to what was said and done by the police and others at the scene of these events, the parties differ markedly as to how that conduct is to be characterised. On the one hand, the applicant says the police were conducting a conversation in which questions of an investigative nature were asked, and are therefore impermissible unless properly authorised and the requirements of that authorisation are complied with. On the other hand, the Crown argues that the police were simply engaging in general conversation from which sprang certain information that police were able to act on, including the association of the accused with a Mr Daniel Glover, and possibly to a lesser extent, a Mr Tim Glover. 7. It follows that my approach to this hearing is to determine the matter on the papers free of any consideration of the earlier reasoning and with nothing turning on the presentation of the witnesses in the witness box. I do however consider it is open for there to be a fresh determination or characterisation of the police conduct based on those agreed facts.