R v DF [2014] NSWDC 149

District Court New South Wales

Medium Neutral Citation: R v DF [2014] NSWDC 149 Hearing dates: 6 August 2014 Decision date: 12 September 2014 Before: Colefax SC DCJ Decision: Order, pursuant to section 139(2) of the Criminal Procedure Act, that the recorded conversation between the complainant and the accused on 14 December 2012 not be admitted into evidence at the trial of the accused in connection with the matters upon which he was arraigned on 6 August 2014. Catchwords: Pre- trial orders- Surveillance Device Warrant- conversation recorded pursuant to warrant- Surveillance Devices Act legislative background- whether recorded conversation impermissibly designed to deprive accused of his right to silence- tender of recorded conversation rejected. Legislation Cited: Surveillance Devices Act 2007; Listening Devices Act 1984; Evidence Act 1995; and Criminal Procedure Act 1986 Cases Cited: Pavitt v R [2007] NSWCCA 88; Swaffield v R (1996) 88 A Crim R; R v Shamouil [2006] NSWCC 112; R v LDV (No.2) [2013] NSWDC 215 Texts Cited: Second Reading Speech - Surveillance Devices Bill 2007 (14 November 2007); Report on Cross- Border Investigation Powers for Law Enforcement Category: Interlocutory applications Parties: Regina (Crown) D.F (Accused) Representation: Crown: Mr C. Bailey of Counsel Accused: Mr Lo Schiavo of Counsel File Number(s): 2013/327957 Publication restriction: The names of the accused, complainant, the complainant's mother and any other matter which could identify those persons

Judgment

REASONS FOR JUDGMENT

Introduction: 1To the extent necessary, I confirm the non-publication order previously made concerning the names of the accused and the complainant. 2On 6 August 2014 the accused was arraigned before me on an indictment which contained six counts. In summary, those counts allege that between 1979 and 1982 the accused variously sexually assaulted his stepson (the complainant) who, at the time of the alleged sexual assaults, was between 9 and 11 years of age. Three counts allege that the accused sexually assaulted the complainant and committed an act of indecency on him; two counts allege that the accused committed an act of buggery with the complainant; and one count alleges that the accused had sexual intercourse with the complainant. The alleged acts giving rise to these charges include the accused fondling the complainant's penis; placing the accused's penis in the complainant's mouth; placing the accused's finger and then penis into the complainant's anus; and placing the complainant's penis into the accused's anus. Upon his arraignment the accused pleaded not guilty to each count. 3Following that arraignment, at the request of the parties, I conducted a pre-trial hearing (cf section 139 Criminal Procedure Act (NSW) 1986). The purpose of that pre-trial hearing was to determine the admissibility of a conversation recorded between the accused and the complainant pursuant to a warrant issued under the Surveillance Devices Act (NSW) 2007. 4The issues raised in the present pre-trial hearing are similar, but not identical, to those which I considered in R v LDV (No. 2) [2013] NSWDC 215. 5There are, however, two significant differences between these two cases. One is that the surveillance device warrant was obtained and used in the present case in the full knowledge that the accused had exercised his right to silence - and the warrant was a deliberate strategy by the police to overcome the exercise of that right. The other is that the Crown has (fairly and correctly) conceded in the present case that the person deployed to use the device was an agent of the State. 6In R v LDV (No. 2) I made a pre-trial order excluding the relevant evidence. Significantly, that ruling was not the subject of an appeal by the Crown pursuant to section 5F of the Criminal Appeal Act 1912 (NSW); nor (as I understand it) was any application made by the Crown to the subsequent trial judge that it would not be in the interests of justice for that pre-trial order to be binding (cf section 130A of the Criminal Procedure Act). 7Accordingly, just as considerations of judicial comity would require another judge of this court to apply the reasoning in R v LDV (No. 2) unless that judge were of the opinion that I was clearly wrong or the facts made it relevantly distinguishable, I should also apply R v LDV (No. 2) unless I have come to one of those conclusions. For the reasons which I set out below, I have not come to either conclusion.