R v Grech; R v Kadir [2017] NSWCCA 288

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Grech; R v Kadir [2017] NSWCCA 288 Hearing dates: 18 October 2017 Decision date: 30 November 2017 Before: Ward JA; Price J; Beech-Jones J Decision: (1) The ruling made by the trial judge on 28 June 2017 excluding the recording made on 5 December 2014, be vacated, and, in lieu, order that the recording made on 5 December 2014 is admissible. (2) The ruling made by the trial judge on 28 June 2017 excluding the evidence obtained during the execution of the search warrant on 12 February 2015 be vacated, and, in lieu, order that the evidence obtained during the execution of the search warrant on 12 February 2015 is admissible. (3) The ruling made by the trial judge on 28 June 2017 excluding the evidence of admissions made by Mr Kadir on 13 January 2015 be vacated, and, in lieu, order that the evidence of admissions allegedly made by Mr Kadir on 13 January 2015 and 18 January 2015 is admissible. Catchwords: EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence under Evidence Act 1995 (NSW), s 138 – Where evidence obtained in circumstances of a trespass to land and various breaches of the Surveillance Devices Act 2007 (NSW) – Whether primary judge erred in excluding seven individual pieces of surveillance footage by not considering each item individually by reference to considerations in s 138(3) – Whether primary judge erred in assessing the gravity of the contravention – Whether primary judge erred in assessing the difficulty of obtaining the evidence without the contravention – Whether primary erred in excluding search warrant evidence – Whether primary judge erred in excluding evidence of certain alleged admissions Legislation Cited: Crimes Act 1900 (NSW), s 530 Criminal Appeal Act 1912 (NSW), s 5F(3A) Evidence Act 1995 (NSW), ss 90, 137, 138, 139 Greyhound Racing Act 2009 (NSW), ss 4, 9 Inclosed Lands Protection Act 1901 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) National Parks and Wildlife Act 1974 (NSW) Prevention of Cruelty to Animals Act 1979 (NSW), ss 4, 6, 15, 24D, 24E, 24F, 24G, 24K, 34AA, 34B, Pt 2A Surveillance Devices Act 2007 (NSW), ss 7, 8, 11, 12 Cases Cited: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Bunning v Cross (1978) 141 CLR 54 DPP v Marijancevic [2011] VSCA 355 DW v R [2014] NSWCCA 28 Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 Fleming v R [2009] NSWCCA 233 Gedeon v R [2013] NSWCCA 257 House v The King (1936) 55 CLR 499 IMM v The Queen [2016] HCA 14 Martin v The Queen [2015] ACTCA 38 Norbis v Norbis (1986) 161 CLR 513 Parker v Comptroller-General of Customs [2007] NSWCA 348 Parker v Comptroller-General of Customs [2009] HCA 7 R v Gallagher; R v Burridge [2015] NSWCCA 228 R v Rapolti [2016] NSWCCA 264 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Robinson v Woolworths Ltd [2005] NSWCCA 426 Wong Sun v US 371 US 471 Category: Principal judgment Parties: 2015/241411 Director of Public Prosecutions (Applicant) Donna Maree Grech (Respondent)