R v Jason Francis COONEY [2013] NSWCCA 312

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Jason Francis COONEY [2013] NSWCCA 312 Hearing dates: 2/12/2013 Decision date: 02 December 2013 Before: Leeming JA at [1], [14]; Johnson J at [13]; Latham J at [11] Decision: (1) Appeal allowed. (2) The ruling made by his Honour Acting Judge Solomon on 18 September 2013 be set aside. (3) The matter be remitted to the District Court for determination in accordance with law. Catchwords: CRIMINAL LAW - evidence - discretion to exclude for unfairness - covertly recorded admission pursuant to lawful warrant while accused in custody - failure by police to tell accused that a barrister wished to speak with him - admission obtained shortly thereafter - application to exclude under ss 84, 90 and 138 - application determined solely pursuant to s 90 - Evidence Act 1995 (NSW), ss 84, 90 and 138

EVIDENCE - discretions to exclude under ss 84, 90 and 138 of Evidence Act 1995 (NSW) - application of unfairness test in s 90 and failure to apply balancing test in s 138 when basis for rejection was that the evidence was obtained in consequence of a contravention of an Australian law - error in excluding evidence by failing to address s 138 Legislation Cited: Criminal Appeal Act 1912 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Em v The Queen [2007] HCA 46; 232 CLR 67 House v The King (1936) 55 CLR 499 Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 Category: Principal judgment Parties: Regina (appellant) Jason Francis Cooney (respondent) Representation: Counsel: JA Girdham SC (appellant) T Gartelmann (respondent) Solicitors: Solicitor for Public Prosecutions (appellant) Legal Aid Commission (respondent) File Number(s): 2012/230180 Publication restriction: Publication prohibited pending outcome of trial. Trial now concluded. Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-09-18 00:00:00 Before: Solomon DCJ File Number(s): 2012/230180