R v Fesus (No 2) [2015] NSWSC 1467

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus (No 2) [2015] NSWSC 1467 Hearing dates: 21, 22 & 23 September 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Common Law Before: Wilson J Decision: 1. The recordings and evidence [REDACTED] summarised in Ex. VD A is not, of itself, admissible. Should the accused wish to explore the circumstances [REDACTED] relevant questions may be asked of UCO 1 and other participating operatives. Such questions may be directed to any alleged inducements held out to the accused [REDACTED] for the purposes of the undercover operation in 2013. 2. The recording of the meeting between the accused and UCO 6 on 8 July 2013 (Ex. VD CV 42) is admitted. 3. The evidence of the recorded interview between the accused and Detective Senior Constable Sebastian Herft on 8 July 2013 (Ex. VD CV 43) is admitted, save for the following discrete portions (by reference to the transcript, aide memoire to the exhibit): i. Q&A 170 – 174 inclusive; ii. Q&A 184; iii. Q&A 189 – 191 inclusive; iv. Q&A 198 – 205 inclusive; v. Q 259; and vi. A 259 "Well, that was the main one". Catchwords: CRIMINAL LAW – pre-trail proceedings – voir dire concerning the admissibility of evidence – undercover police operation – admissions made to undercover police operative – question of legality of undercover operation – question of unfairness by police Legislation Cited: Evidence Act 1995 Law Enforcement (Controlled Operations) Act 1997 Cases Cited: Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 Fleming v R [2009] NSWCCA 233 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 Ridgeway v The Queen [1984] HCA 66; (1984) 184 CLR 19 Tofilau, Marks, Hill, Clarke v R [2007] HCA 39; (2007) 231 CLR 396 Category: Procedural rulings Parties: Crown Steven Frank Fesus Representation: Counsel: Mr J. Crespo (Crown) Mr M. Finnane QC with Ms Carroll (Accused)