Carlton v R [2010] NSWCCA 81

Reported Decision: 199 A Crim R 591

New South Wales Court of Criminal Appeal

CITATION: Carlton v R [2010] NSWCCA 81

HEARING DATE(S): 12/02/2010

JUDGMENT DATE: 7 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 25

DECISION: The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal - Evidence - whether evidence of admission recorded on ICV admissible - whether proviso should be applied

Drug Misuse and Trafficking Act 1985 - s 25 LEGISLATION CITED: Law Enforcement (Powers and Responsibilities) Act 2002 - ss 108D(1), 108E(1) Criminal Procedure Act 1986 - s 281

CATEGORY: Principal judgment

CASES CITED : Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

PARTIES: Matthew John Carlton v Regina

FILE NUMBER(S): CCA 2008/1369

COUNSEL: F Veltro - Crown G Newton - Appellant

SOLICITORS: S Kavanagh - Crown Antwan Lawyers - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/1369

LOWER COURT JUDICIAL OFFICER: Syme ADCJ

LOWER COURT DATE OF DECISION: 17/06/2009

IN THE COURT OF CRIMINAL APPEAL 2008/1369

McCLELLAN CJ at CL HOWIE J HARRISON J

FRIDAY 7 May 2010 Matthew John CARLTON v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 HOWIE J: The appellant was convicted of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act. The offence was based upon an allegation that the appellant was in possession of a quantity of methamphetamine being about 15 times the traffickable quantity prescribed for that drug. The appellant was sentenced to a term of imprisonment but there is no application for leave to appeal. It must be noted that on its face a sentence with a non-parole period of only 8 months appears inadequate to a very considerable degree. However, there was no Crown appeal. The result of the sentence imposed is that the appellant has completed his non-parole period and the sentence in its entirety expired on 25 March last. 3 There was little, or no, dispute about the facts in the prosecution case. The only issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellant was in possession of the drugs that were found in the glove box of a vehicle that he was driving when pulled over by police on 10 May 2007. The appellant gave evidence and denied knowledge of the presence of the drugs. The owner of the vehicle gave evidence denying that the drugs were his. The verdict of the jury means that they were satisfied beyond reasonable doubt that the account given by the appellant was untrue. 4 The ground of appeal raises the admissibility of the audio track of a video recording of the events following the police stopping the appellant for speeding on the Sturt Highway outside Wagga Wagga at about 10.40pm on 10 May 2007. The police by the use of a speed radar ascertained that the appellant was driving at 120kph in a 100kph speed zone. The appellant was made to stop the vehicle on the roadside. As Sgt McLachlan exited the police vehicle, he saw the appellant lean towards the left side of the vehicle that he was driving. 5 The police vehicle was fitted with in car video equipment (ICV). There were two cameras in the system: one camera faced the front of the vehicle and the other the rear. The officers had portable microphones fitted to their belts for recording an audio track to the video. The video recording continued for a period of about two hours while the appellant was stopped at the roadside. Some of that period was spent waiting for a police truck and video equipment to arrive. An edited copy of the video recording with the audio track was played to the jury. 6 The video records the following. The appellant can be seen to lean to the left side of the vehicle as police approached. The police officer advised the appellant that "everything is being recorded". He was told that, in light of the fact that he was sweating and seemed nervous, the police intended to search the vehicle. The appellant left the vehicle and was searched. A discussion occurred about the purpose of the appellant's trip. Sgt McLachlan searched the interior of the vehicle and returned to the appellant and asked, "What's in here Matthew?" The appellant was then cautioned. The appellant was shown a plastic container with plastic bags containing white powder. After the appellant indicated that he did not want to say anything, he was told that he was under arrest "for possession of a prohibited substance". 7 The appellant then entered the back seat of the police vehicle and was advised that the vehicle was fitted with video and audio recorders that would continue recording. The front camera was then turned towards where the appellant was sitting. The appellant left the vehicle at one stage to have a cigarette. There was then a conversation between the appellant and Sgt McLachlan that was recorded on the audio track. He asks, referring to the white powder, "Is it ice?" The appellant replies, "No, its not ice its speed that's all it is." He is asked, "How much is in there?" and the appellant replies, "Two ounces". 8 It is now asserted that the audio recording of the conversation between the appellant and the police officer was inadmissible as it was unlawfully obtained because of provisions in relation to the use of ICV. Although various objections were taken to these conversations at the trial, it was not argued that s 138 of the Evidence Act applied. Counsel who appeared for the appellant at the trial has made an affidavit in which he states that he was unaware of the provision that is relied upon in this Court to support the present objection to the admissibility of the evidence. There is nothing to indicate why the Crown prosecutor did not raise the issue under the Crown's duty of fairness. 9 The basis upon which it is now argued that the audio track of the tape was unlawfully obtained is certain provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 and in particular s 108E of that Act. The relevant provisions are as follows: