R v Grech; R v Kadir - [2017] NSWCCA 288 - NSWCCA 2017 case summary — Zoe

NSWNSWCCA

R v Grech; R v Kadir

[2017] NSWCCA 288

Court of Criminal Appeal (NSW)|2017-10-18|Before: Ward JA, Price J, Beech-Jones J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2017-10-18

Before

Ward JA, Price J, Beech-Jones J

Catchwords

R v Burridge [2015] NSWCCA 228 R v Rapolti [2016] NSWCCA 264 Ridgeway v The Queen (1995) 184 CLR 19

Source

Original judgment source is linked above.

Catchwords

R v Burridge [2015] NSWCCA 228 R v Rapolti [2016] NSWCCA 264 Ridgeway v The Queen (1995) 184 CLR 19

Judgment (25 paragraphs)

[1]

Background

In summary, the Crown case is that Mr Kadir, with the assistance of a friend, Ms Grech, carries on a greyhound training business from a property owned by him at Londonderry and that, in the course of that business, he uses live animals (rabbits and, in at least one instance, a possum) to train greyhounds by attaching the live rabbits/possums to part of a mechanical device (called a "lurearm") that propels the animals around a circular area known as the "bull ring". The animals strapped to the lurearm are chased by the greyhounds until caught; in the process they are seriously injured or killed. Sometimes the same animal is subjected to the procedure more than once (by its body being strapped directly to the lurearm on the second or subsequent occasion).

[2]

Taking of the video footage

Video footage of the said activities was obtained by Ms Sarah Lynch, who describes herself as a documentary photographer (but has previously described herself as a freelance investigator). She was acting on behalf of (and paid by) an organisation known as Animals Australia, on the instructions of its Chief Investigator and Campaign Director, Ms Lyn White. Both Ms Lynch and Ms White gave oral evidence at the voir dire hearing held in advance of the trial to determine the admissibility of the evidence (as did an officer of RSPCA). Some of that evidence is set out below.

[4]

Involvement of the RSPCA

By way of background, it should be noted that the RSPCA is a company limited by guarantee. It is a registered charity. It was founded in 1874 and registered as a corporate entity in 1895. It received the title "Royal" by letters patent issued in 1923.
Of present relevance is that the definition of "charitable organisation" in s 4 of the Prevention of Cruelty to Animals Act 1979 (NSW) (the PCAA) specifically includes RSPCA. Further, in April 1998, RSPCA's approval under s 34B(1) of the PCAA was gazetted. Subsection 34B(1) of the PCAA provides: The Minister may, by order published in the Gazette, approve of a charitable organisation for the purposes of the exercise by its officers of law enforcement powers under this Act.
RSPCA's status as an "approved charitable organisation" conferred upon it standing to institute proceedings for offences under the PCAA or the regulations made under it (PCAA, s 34AA). The PCAA establishes a number of offences in respect of the mistreatment of animals, some of which carry maximum sentences of two years imprisonment and a fine (PCAA; s 6 and s 15(2)).
The "law enforcement powers" referred to in s 34B(1) are found in Pt 2A of the PCAA. Division 1 of Pt 2A confers various powers on "officers" to compel the production of information relevant to ascertaining the identity of persons who have committed or who are reasonably suspected of committing offences against the PCAA. An "officer" is defined as including "an officer of an approved charitable organisation who is a special constable within the meaning of the Police (Special Provisions) Act 1901".
Division 2 of Pt 2A of the PCAA confers additional powers on "inspectors" which are defined as including an "officer" who has been issued with an authority for the purposes of Div 2 by the Minister, the Director-General or a Deputy Director-General (PCAA; s 24D). Mr O'Shannessy has deposed that all "RSPCA NSW officers" have either been issued with such an authority or the process for issuing them with an authority has commenced.
The powers conferred on Inspectors by Div 2 of Pt 2A of the PCAA include the power to enter land for the purposes of exercising any function under the Division (PCAA, s 24E(1)). They also include a power to apply to an "authorised officer" within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) for the issue of a search warrant if the officer has reasonable grounds for believing that an animal in respect of which offence under the PCAA or regulations has been committed is on the relevant land or evidence of such an offence is on the relevant land (PCAA, s 24F). Sub-section 24K(1) empowers an Inspector who is lawfully on land investigating a suspected commission of an offence under the PCAA or the regulations to seize anything that will afford evidence of the commission of the offence.
Section 24G confers certain powers on Inspectors in respect of land used for the purpose of a "sale-yard", "an animal trade" or "on which an animal is being used, or kept for use, in connection with any other trade, or any business or profession" (PCAA, s 24G(1)). In respect of such land, s 24G(2) provides: For the purposes of ensuring that the provisions of this Act or the regulation are not being contravened, an inspector may, in relation to land to which this section applies, do any or all of the following: (a) inspect and examine the land, any animal that is in or on the land and any accommodation or shelter that is provided in or on the land for any animal, (a1) take such photographs, films, audio, video and other recordings as the inspector considers necessary, (b) inspect and examine any register that is kept under this Act or the regulations and that is in or on the land, (c) require any person found in or on the land to produce any such register, (d) take copies of, or extracts or notes from, any such register.
Thus, although RSPCA is a private body, it and its officers are conferred with powers and responsibilities that place it in the equivalent position to public regulators conferred with investigative powers and functions and a limited prosecution function.
RSPCA's involvement in the matter came about as follows.
On 30 January 2015, Mr O'Shannessy received emails from Ms White seeking a meeting "to hand deliver a legal complaint and associated evidence" said to relate to breaches of the Crimes Act 1900 and the PCAA. The meeting took place on 2 February 2015. During the meeting, Mr O'Shannessy received a letter alleging breaches of that legislation and the National Parks and Wildlife Act 1974 (NSW) by reason of live baiting taking place at Mr Kadir's property and other places. The letter referred to the course of proceedings before a Select Committee of the NSW Parliament into Greyhound Racing and statements by RSPCA that it could not pursue an investigation into live baiting because, inter alia, there was a "lack of first hand evidence". The letter stated that: Based on the above considerations, Animals Australia engaged an investigator to investigate the allegations relating to [Mr Kadir's property and another unrelated property] on the basis that any evidence gathered would be provided to the RSPCA NSW for further investigation and actioning. Animals Australia proceeded with the investigation on the determination that the RSPCA could not undertake the type of surveillance necessary to document the alleged practices occurring on the properties, and we provide herewith the primary evidence gathered.
The evidence provided included an external hard drive which contained unedited copies of the video footage taken by Ms Lynch (i.e., the surveillance evidence). During the meeting, Mr O'Shannessy was shown footage that lasted approximately five minutes. He described the footage as a "representative summary" of the contents of the hard drive. Ms White also told him that "stewards and officials" involved in the regulation of the greyhound industry had been identified in the footage.
Mr O'Shannessy determined that RSPCA would commence an investigation. He assigned Inspector Flett Turner as the officer in charge. In one of his affidavits, Mr O'Shannessy stated that RSPCA was not "involved in any way with the planning or implementation of the Animals Australia investigation that lead to the [surveillance] footage being obtained" and that prior to the meeting he had no knowledge that Animals Australia or anyone else had obtained footage of live baiting in the NSW greyhound racing industry. This evidence was not challenged.
In early February 2015, Mr Turner undertook research into the business conducted by Mr Kadir. He concluded that the Londonderry property owned by Mr Kadir was both used for an "animal trade" and was a property in which an animal was being used, or kept for use, in connection with any other trade, or a business or profession such that it was amenable to the exercise of his powers under s 24G of the PCAA. On 10 February 2015 Mr Turner applied for and obtained the issue of a search warrant under LEPRA. The search warrant authorised entry onto the Londonderry property, the taking possession of and caring for of any animal there in distress and the seizure of anything that would constitute evidence of the commission of an offence under the PCAA.
The search warrant was executed during the morning of 11 February 2015 by Mr Turner, who was accompanied by other RSPCA inspectors, a registered veterinarian and police officers. During the execution of the search warrant a dead rabbit and what appeared to be the remains of two other dead rabbits were found in a greyhound running area described as the "bull ring". Body parts of a dead rabbit were found on a mechanical lure within the bull ring. Two live rabbits were found in a cage. The veterinarian who participated in the execution of the search warrant was of the opinion that those rabbits were in a state of "severe pain, distress and discomfort". They were put down.
A diary, a business card and a two-page unsigned affidavit in the name of Mr Kadir were also seized during the execution of the warrant. The diary listed the cost of boarding dogs and the cost of rabbits. The unsigned affidavit is said to have "detailed his ownership of the property and the running of the business". The execution of the search warrant was videotaped and sound recorded.

[5]

Ms White

Ms White, the Chief Investigator and Campaign Director of Animals Australia as already noted, had had some 20 years' experience as a police officer in South Australia. At the time she gave instructions to Ms Lynch to document activity at the Londonderry premises, Ms White was aware of rumours that live baiting had been occurring systemically across the greyhound industry for decades but that no enforcement body had been able to prove and prosecute such offending. She was also aware of rumours as to alleged corruption and conflict of interest within the racing authorities. Her view was that if enforcement bodies had been provided with the anonymous information the persons or properties of interest would likely be 'tipped off". She believed that, since Greyhound Racing NSW had failed to take action in respect of information suggesting other abuses, Greyhound Racing NSW lacked independence and was not an appropriate body to involve in the matter. She was aware of the NSW parliamentary enquiry in which there had been discussion of such problems with Greyhound Racing NSW.
Ms White formed the view that, as the cameras were to be installed in outdoor areas and not in residential homes nor providing views of residential homes, the privacy of the home would not be breached in those circumstances.
The Animals Australia Board of directors did not approve the conduct of the investigation, nor did Ms White seek legal advice but she undertook her own consideration of the issues. Ms White agreed in cross examination that she knew she was breaking the law but had made a "deliberate and informed decision" on the basis of gathering evidence to present to the authorities. Ms White was aware she was at risk of prosecution and was not confident at the time that she would be granted an indemnity.
Ms White considered that there was no way to obtain the evidence sought other than by trespassing on land; that police would be reluctant to become involved and seek a warrant based on the anonymity of the informant; and that it would be virtually impossible to obtain a warrant under the Surveillance Devices Act. Ms White was aware that the RSPCA did not have powers under the Surveillance Devices Act. Ms White did not, however, have any experience with obtaining warrants under the Surveillance Devices Act in New South Wales and had never personally applied for a search warrant as a police officer in South Australia (though she had been part of a team that had had cause to do so).
Ms White's experience as a police officer was that every time police had been involved in an animal welfare issue the police would speak to the RSPCA. She believed the RSPCA had a memorandum of understanding with Greyhound Racing NSW which meant that the RSPCA would convey that information to the (compromised in her view) Greyhound Racing NSW.
Ms White was provided with the video footage taken by Ms Lynch on 12 December 2014. She did not at that stage inform either the police or the RSPCA that criminal acts had been committed because she said that doing so would compromise a concurrent investigation in Victoria. Ms White said she sent Ms Lynch back to the property after 12 December 2014 to determine the pattern of behaviour and to ensure that they were in the best position to provide the RSPCA with information. She was seeking to determine who it was for whom Mr Kadir was breaking-in greyhounds. She was aware that Ms Lynch had trespassed on the property a number of occasions. Ms White said the purpose of Ms Lynch going to the property on 13 January 2015 was to find out more about which trainers were using the facility.
Ms White agreed that she had dealt with the ABC (those involved in the Four Corners program) since mid January 2015 (although she said that Animals Australia did not initiate the contact with the ABC) and had been in regular communication with Four Corners thereafter but said Four Corners had agreed that Four Corners would not act on any information until after the RSPCA had the opportunity to investigate the matters.
Ms White did not agree that publicity and political pressure were considerations in her decision to proceed with the investigation. She said Animals Australia's priority was gathering evidence for legal complaints. She agreed, however, that she also ran the publicity side of the operation as hard and as early as she could.

[9]

The surveillance evidence

The trial judge held (as was conceded by the Crown) that each of the recordings that comprised the surveillance evidence was obtained as a consequence of contravention of an Australian law, noting that therefore the onus was on the Crown to satisfy the Court that the desirability of admitting the evidence outweighed the undesirability of admitting it, given the way in which it was obtained.
His Honour addressed in turn each of the factors required to be taken into account pursuant to s 138 of the Evidence Act.
His Honour considered that there could be no doubt that the evidence had a very high probative value (see s 138(3)(a) of the Evidence Act), and accepted that the evidence of the recordings was very important to the Crown case (see s 139(3)(b)) (pp 24-25). The trial judge described the allegations as concerning "very serious allegations of systematic animal cruelty for financial gain" and said that despite the relatively modest maximum penalty of 5 years these offences should be seen as serious (s 138(3)(c)). Those factors his Honour considered tended towards the admission of the evidence (p 25).
His Honour next considered the gravity of the contraventions and whether they were reckless or deliberate (s 138(3)(d) and (e)) and held that the contraventions were deliberate and that the gravity of the impropriety was very high and serious.
In that regard, his Honour found (and this cannot be and is not disputed) that Ms White had made a deliberate decision not to comply with the Surveillance Devices Act and to instruct Ms Lynch to engage in deliberate illegal conduct (p 26). His Honour noted that there had been repeated deliberate breaches of the Surveillance Devices Act without there having been any attempt to approach law enforcement officers at any time to attempt to obtain a warrant, or to carry out other investigatory conduct that may have led to a successful application for such a warrant (p 27).
His Honour was of the opinion (at p 26) that, given Ms White's very limited experience in being involved in warrant applications, it was highly unlikely that Ms White formed a "genuine belief that if a relevant judicial officer, being a Supreme Court Judge was approached in relation to the granting of a surveillance device warrant, one would not have been granted".
His Honour said (at p 27) that Parliament had "no doubt" tightly controlled the lawful use of optical surveillance devices because of the concern that intrusions into persons' lives and privacy by such devices should be for very limited purposes and, primarily for investigation of alleged criminal conduct by law enforcement officers as that term is defined in the Surveillance Devices Act (his Honour considering that the observations in DPP v Marijancevic [2011] VSCA 355 at [68] were here applicable).
His Honour also noted (at p 27) that the decision deliberately to breach the Surveillance Devices Act was made by someone who "had years of experience as a police officer and was described at the time as a chief investigator of an organisation which in part had as one of its functions the investigation of animal cruelty". That, coupled with the seriousness with which the Parliament views the unauthorised use of optical surveillance devices, led his Honour to conclude that the gravity of the impropriety was very high and serious (p 28).
His Honour also considered that there had been a breach of Art 17 of the International Covenant on Civil and Political Rights but not in relation to Mr Kadir's home (s 138(3)(f)). However, his Honour said that this factor was not one in the circumstances of this case to which particular weight should be given.
His Honour noted that, on the evidence before him, it was unlikely that action would be taken against Ms White or Ms Lynch for the contravention, as he was advised that they had received indemnities from the Attorney-General (s 138(3)(g)).
As to the difficulty, if any, of obtaining the evidence without impropriety or contravention of Australian law (s 138(3)(h)), his Honour said (at pp 29-30) the following: The effect of Ms White's evidence was that she formed a view that no surveillance device warrant could be obtained and that if she approached the RSPCA or the police they would inevitably involve Greyhound Racing New South Wales, which she believed would in effect not properly investigate the matter. To my mind this involved to a significant degree, sheer speculation. It was open to Animals Australia to approach both the RSPCA and the police on a confidential basis and at least obtain advice from them as to whether or not the police were prepared to apply for a surveillance devices warrant or whether they were prepared to undertake initial lawful investigatory steps that might lead to such an application. Ms White was in no position, in my view, given her limited experience in relation to the obtaining of warrants of any type, to simply make a decision that the only way to obtain the evidence was through breaching the Surveillance Devices Act. No attempt to conduct other investigatory steps or approach the police or the RSPCA on a confidential basis to engage in other investigatory steps was engaged in prior to the decision being made to breach the Surveillance Devices Act. The evidence from the chief inspector of the RSPCA was that the RSPCA would have conducted an investigation into an anonymous complaint of live baiting. No doubt given the concerns held about Greyhound Racing New South Wales, appropriate steps could have been taken by the RSPCA not to involve that organisation, but involve the police at a senior level and to ensure confidentiality. Once the first recording was obtained, there was no reason why the police through the RSPCA could not have been approached and requested to apply for a warrant to install an optical surveillance device. No such approach was undertaken and multiple breaches of the Surveillance Devices Act were then engaged in. [emphasis added] I am satisfied that there was some difficulty in obtaining the evidence in some other way which did not involve a contravention, but the degree of difficulty is not easily determined when no steps were taken to endeavour to obtain the evidence in a lawful way. There clearly were other investigatory steps, such as by way of covert visual surveillance, that could have been attempted prior to engaging in the deliberate breach of the Surveillance Devices Act, in my view.
His Honour did not consider that the evidence supported a finding that the breaches of the Surveillance Devices Act were to gain the benefit of maximum publicity for Animals Australia. His Honour accepted that the principal reason (for the breaches) was to investigate a complaint about Mr Kadir (pp 30-31).
In terms of the exercise of the discretion under s 138 of the Evidence Act, his Honour considered it relevant to have regard to the fact that Animals Australia had as one of its functions the investigation of animal cruelty but that "it had no authority to carry out investigations from the legislative or executive arms of government" (p 31). His Honour said that the Court should be reluctant in the context of criminal proceedings to lend "judicial integrity" to conduct by such organisations which deliberately breach the law, by allowing the admission of evidence obtained unlawfully (there referring to an article published by Bathurst CJ in the Judicial Review on illegally or improperly obtained evidence to which his Honour had drawn the parties' attention in the course of argument).
His Honour accepted that public policy issues had a role to play and considered that, if Courts were not reluctant to admit such evidence in criminal proceedings, they would "run the risk" of encouraging bodies which do not have any form of legislative or executive oversight to engage in deliberate illegal conduct, and that such encouragement would have the capacity to undermine the rule of law.
Balancing the factors set out in s 138(3) of the Evidence Act and the public policy to which his Honour had referred, his Honour concluded that the Crown had not discharged its onus of showing that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which the recordings were obtained and accordingly declined to admit the recordings.

[12]

Legal principles

Section 138 of the Evidence Act provides, relevantly: (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The respondents argue that to succeed in this appeal the Crown must demonstrate error by his Honour in the sense referred to by Dixon, Evatt and McTiernan JJ in the well-known passage in House v The King (1936) 55 CLR 499 (at 504-505). Although, in Gedeon v R [2013] NSWCCA 257 (at [174]-[178]), Bathurst CJ expressed the view in obiter that the question as to whether the exercise of the discretion to admit or reject evidence under s 138 is reviewable only if errors in the sense referred to in House v The King are demonstrated could not be said to be finally settled, in R v Rapolti [2016] NSWCCA 264, the Court of Criminal Appeal was satisfied that a ground challenging a determination under s 138 was to be considered consistently with the principles in House v The King and the present case was argued by the Crown (and will be determined) on that basis. (See also Fleming v R [2009] NSWCCA 233 at [22] and Norbis v Norbis (1986) 161 CLR 513 at 518-519 in this regard.)

[14]

Ground 1(a) - Failure separately to consider the first recording and subsequent recordings

The complaint made by the Crown is that in his Honour's analysis of each of the s 138(3) factors, and as to whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, his Honour considered "the recordings" as a single piece of evidence to which the balancing test must be applied. It is submitted that this approach was erroneous as a matter of law and that it led to error in that his Honour took into account irrelevant considerations with respect to the first recording. The Crown argues that his Honour's approach obscured the significant differences between the considerations applicable to the first contravention and to those applicable to the subsequent contraventions of the Surveillance Devices Act.
The Crown submits that the finding that there were "repeated deliberate breaches" was incorrect with respect to the first video recording (taken on 5 December 2014) and that it impermissibly informed the trial judge's conclusion concerning the gravity of the impropriety with respect to the first piece of footage.
As to the difficulty of obtaining the evidence without the contravention, the Crown notes that his Honour reached the same conclusion (that there was "some difficulty") with respect to all of the recordings and submits that his Honour erred in not making a separate analysis and separate findings with respect to the first recording and the subsequent recordings, in circumstances in which there were significant differences between the position before and after the first recording had been obtained.
In response to those submissions, Mr Kadir emphasises that the balancing test under s 138 requires an analysis of whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. He submits that there was no error in his Honour considering "the recordings", which were all obtained by the same method, as a single piece of evidence to which the balancing test must be applied; but says, further, that even if the breaches of the Surveillance Devices Act in respect of the placing and removal of the camera on his property either side of 5 December 2014 were to be looked at in isolation, in those actions alone there are still two repeated breaches of each of s 7 and s 8 of the Surveillance Devices Act (and then repeated breaches of s 11 and s 12 of the Act before the evidence was obtained by the prosecution). It is submitted that those further breaches cannot be ignored and that they were numerous and deliberate.
Ms Grech similarly submits that the contravention comprised a course of conduct joined by a common purpose in a determined disregard of the law and that, in assessing the gravity of the contravention it was necessary for the learned trial judge to consider a course of conduct in which each unlawful act played a part and it was also necessary to consider the totality of the unlawful acts in assessing the gravity of the contravention in all of the circumstances.
Thus it is submitted for the accused that his Honour was not in error in proceeding upon the basis that each successive criminal act did not diminish or alleviate the totality of the criminality of the informants in the execution of their joint criminal enterprise. It is submitted that in the determination of the application before his Honour it was necessary to look to all of the circumstances in combination.

[15]

Ground 1(b) - Erroneous assessment of the gravity of the contravention

The Crown does not complain as to his Honour's treatment of the deliberateness of the breach and the gravity of the breach as related considerations, nor as to his Honour's finding that Ms White made a deliberate decision to contravene the Surveillance Devices Act.
However, the Crown points to what was said in Gedeon v R (at [222]) by Bathurst CJ, namely that "[a]lthough it is undoubtedly true that the end does not necessarily justify the means, the bona fides of the law enforcement officers and the motivation for their actions are relevant in assessing the gravity of these contraventions or improprieties"; and to what was said in R v Gallagher; R v Burridge [2015] NSWCCA 228 Beech-Jones J (with whom Gleeson JA and Adams J agreed) (at [54]): Otherwise an assessment of the gravity of the contravention can involve a consideration of the extent of the departure from the relevant standard, the frequency that public officials engage in the departure to the extent that it is known, the rights and interests that are infringed by the departure and the consequences for the individual concerned (see Evidence (ALRC Report 26, 1985) at [964], Evidence Act s 3(3), Director of Public Prosecutions v Marijancevic, Director of Public Prosecutions v Preece [2011] VSCA 355, 219 A Crim R 344, R v Helmhout [2001] NSWCCA 372, 125 A Crim R at [12] per Ipp JA and [40] per Hulme J). …
Complaint is made in this context as to the finding by his Honour that it was "highly unlikely" that Ms White formed a genuine belief that if a relevant judicial officer were approached in relation to the granting of a surveillance device warrant, one would not have been obtained (following his Honour's findings that Ms White lacked the knowledge and experience to have made an informed decision about the operation of the Surveillance Devices Act). The Crown says that although the accuracy of, and basis for, Ms White's belief was extensively challenged in cross examination, it was not suggested to her that she was being deliberately untruthful when she gave evidence that she had believed a surveillance devices warrant would not be granted in the circumstances as they stood (namely, where there was only an anonymous complaint).
The Crown submits that his Honour's reference to a genuine belief, when read in this context of his reasons, should be understood as a finding about the reliability of Ms White's opinion, rather than a finding about her bona fides or truthfulness as such (but that if it is a finding that Ms White was untruthful, then such a finding was not open on the evidence). Pausing there, in circumstances where the truthfulness of Ms White's evidence in this regard was not directly challenged, this finding should be treated as a finding of unreliability not dishonesty.
The Crown further submits that, beyond noting that the purpose of the Surveillance Devices Act is principally to protect a person's right to privacy, his Honour did not assess the "extent of the breach" or the "rights and interests that [were] infringed" by the particular actions of Ms Lynch on 5 December 2014 and then on subsequent occasions (cf R v Gallagher at [54]). The Crown accepts that the actions of Ms Lynch clearly constituted a breach of the Surveillance Devices Act, and of the Inclosed Lands Protection Act 1901 (NSW) but argues that she entered Mr Kadir's property to the "minimum amount necessary" to place the camera; did not approach or film his home or the carrying out of any private activities; and only recorded business activities being carried out on business premises (referring to ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [25]-[26], [35] (Gleeson CJ)). The Crown points out that, as an animal trade, Mr Kadir's greyhound boarding and training business was subject to the attendance upon his property and inspection by of RSPCA Inspectors.
The Crown submits that although the trial judge made factual findings that the devices were installed in the area where Mr Kadir conducted his business of training dogs and did not record anything to do with his home, this was in the context of considering whether there had been a breach of his right to privacy. In the Crown's submission, his Honour erroneously failed to make any assessment in the terms referred to in R v Gallagher at [54], in particular with respect to the distinction between business activities and private activities, in his assessment of the gravity of the contravention of Australian law applicable to the particular circumstances of this case. (In this regard, Mr Kadir argues that his Honour considered, but made it plain that he did not give particular weight to, the issue of privacy.)
The Crown submits that in those circumstances the particular breach of s 8 of the Surveillance Devices Act must be considered to be a less serious contravention than one which involved, for example, the trespass into a home and the recording of genuinely private activities.
The Crown emphasises that Ms Lynch and Ms White were motivated solely by their attempts to have those persons responsible for organised cruelty towards animals brought to justice in some way and to have the practices stopped, in circumstances in which the practice of live baiting in the greyhound industry had been extremely resistant to eradication. The Crown notes that the trial judge took into account that Ms White and her organisation had as one of its objectives to investigate animal cruelty, and that a breach by such an organisation was more likely to bring the administration of justice into disrepute. In the Crown's submission, a private person (or a group calling themselves investigators) does not invite a direct comparison with law enforcement officers who deliberately or recklessly breach the law (reference being made to DPP v Marijancevic). The distinction there being drawn is as between someone whose professional duty is to uphold the law and someone not under the same professional duty.
The Crown thus submits that his Honour erred in finding that the gravity of the breaches were "very high and serious" with respect to all of the breaches, but in particular the first breach (and in failing to treat the first and subsequent breaches separately).
Mr Kadir submits that his Honour's finding (at p 26) (as to it being highly unlikely that Ms White had formed a genuine belief as to the grant of a warrant) was as to the disingenuousness of Ms White's statements as to her belief that a warrant under the Surveillance Devices Act may not have been granted; and says that such a conclusion was well founded. Mr Kadir points to the ample opportunity the trial judge had to assess Ms White's candour as a witness, noting that it was submitted to the trial judge that at times Ms White was evasive and that at one stage the trial judge intervened during her cross-examination to request her to confine her answers to the questions asked.
Mr Kadir also emphasises that the recording on 5 December 2014 was of sound as well as vision; hence the device used was a listening device as well as an optical surveillance device and therefore there were breaches of s 7 of the Act as well as s 8. Thus he submits that on the evidence before the trial judge (bearing in mind the "numerous and repeated deliberate and considered breaches of ss 7, 8, 11 and 12" of the Surveillance Devices Act, as well as the trespasses by Ms Lynch), it was well open to his Honour to find that "the gravity of the impropriety is very high and serious" (p 28).

[16]

Ground 1(c) - Erroneous assessment of the difficulty of obtaining the evidence without the contravention (with respect to the first portion of footage)

The Crown argues that his Honour's finding that the opinions of Ms White (as to the inability to obtain a search warrant based on an anonymous complaint and as to that would happen if she approached the RSPCA or the police) "involved to a significant degree, sheer speculation", was not a finding that was reasonably open to his Honour.
The Crown points to Mr O'Shannessy's unchallenged evidence that if he had received a complaint by Animals Australia from an anonymous source, he would not have referred the matter to police and would not have made a request to police that the police apply for a surveillance devices warrant. The Crown points out that even when the RSPCA had access to the (admittedly illegal) recordings, its response did not include taking steps to request that the police obtain a warrant for a surveillance device so that lawful recordings could be obtained. Thus, it is submitted that Ms White's expectation that, had she gone to police with her initial complaint, the complaint would have been referred to the RSPCA and (inferentially) that there would therefore have been no application made for any surveillance device warrant is consistent with Mr O'Shannessy's evidence.
Similarly, the Crown points to Mr O'Shannessy's evidence as to what investigation he would have conducted had he received the anonymous complaint in the same circumstances (the making of additional inquiries including liaising with Greyhound Racing NSW) as demonstrating that Ms White's opinion that the RSPCA would inevitably have involved Greyhound Racing NSW in their inquiries had she passed on the initial complaint was not speculative.
The Crown further points out that Mr O'Shannessy gave evidence that his additional inquiries may have involved attendance upon the property to conduct an inspection under s 24G of the PCCA but made no reference to covert visual surveillance and that he was not asked any questions as to whether the RSPCA had the capacity or the willingness to carry out covert visual surveillance (see at p 30). It is submitted that since Mr O'Shannessy accepted in cross examination that he would not have had a basis to apply for a search warrant without the recordings, it follows that he would not have made such an application based upon the anonymous complaint.
The Crown also argues that Ms White's perception that the involvement of Greyhound Racing NSW would not advance any investigation was not "sheer speculation" but was founded on her own experience and knowledge of the enquiry into the Greyhound Racing Industry (and points out that both were supported by the RSPCA's Chief Inspector and borne out in the subsequently published findings of the Report of Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales - "the McHugh Report"). The Crown relied upon the McHugh Report, published on 16 June 2016, in its submissions to the trial judge, arguing that the findings of that commission supported the evidence of Ms White as to the "extraordinary difficulties in detecting, investigating and prosecuting live baiting within the greyhound industry".
Complaint is made that the trial judge, while noting the submissions in that regard, made no reference in his reasons to the McHugh Report (nor any specific finding declining to take the report into account when assessing the difficulty of obtaining the evidence by lawful means). The Crown emphasises the findings in the McHugh Report (at [3 266] [3 271] [3 302] [3 306] [3 307] [8 69]) and says this objective source was corroborative to a significant degree of the opinions and views of Ms White, and that it was not open to his Honour to reject Ms White's evidence about the difficulty of obtaining the evidence by other lawful means without considering that report. The Crown submits that the fact that there was very unlikely to be any complaint by a person willing to identify himself concerning this type of organised animal cruelty was a relevant factor to take into account (referring to Robinson v Woolworths Ltd [2005] NSWCCA 426 at [46]).
As to the trial judge's observation that it was "open to Animals Australia to approach both the RSPCA [NSW] and the police on a "confidential basis" and "at a senior level", and at least obtain advice from them as to whether or not the police were prepared to undertake initial lawful investigatory steps which might lead to such an investigation, the Crown notes that even after the RSPCA was made aware of the complaint no steps were taken to approach the police to obtain a warrant for a surveillance device so that lawful recordings could be made, nor for any covert visual surveillance carried out on behalf of the RSPCA. The Crown says that active steps were taken not to involve the local police in the execution of the search warrant because of concerns about "tip offs".
The Crown submits that the theoretical proposals of approaching police "at a high level" or on a "confidential basis" fail to take adequate account of the realistic hurdles faced by Ms White. The Crown points to the fact that Animals Australia has no legislative powers and to Mr O'Shannessy's evidence that the RSPCA has "no relationship" with Animals Australia. It is submitted that as the RSPCA (not the police) is the body principally responsible for investigating complaints of animal cruelty, Ms White was in no different position from any citizen in terms of her prospects of being able to have access to senior police for a confidential meeting about an anonymous complaint. The Crown further argues that it is appropriate to take account of practical hurdles facing a particular complainant even when theoretically other lawful avenues are open to them (referring to DW v R [2014] NSWCCA 28 at [47]-[52]).
In particular, the Crown submits that the trial judge erred by failing to consider the first recording separately from the subsequent recordings in this regard.
The Crown maintains that there was substantial evidence supporting the finding that there was a very high degree of difficulty in obtaining admissible evidence that Mr Kadir was engaging in acts of serious animal cruelty on his property before 6 December 2014, and that his Honour erred in his finding concerning the difficulty of obtaining the recording on 5 December 2014 without the contravention of Australian law, by failing properly to take into account the evidence of Mr O'Shannessy and failing to have regard to the findings of the Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales.
Mr Kadir maintains that no error, particularly no error of the kind elucidated in House v The King, can be shown in the conclusion reached by his Honour as to the s 138(3)(h) factor.

[17]

Determination

His Honour's judgment carefully sets out a summary of the evidence before him upon the application (pp 3-18), the competing submissions upon that evidence (pp 18-22), his conclusions drawn from that evidence and his reasoning as to why he was not persuaded to admit the challenged evidence. His Honour carefully addressed each of the matters required by s 138(3) to be taken into account. It cannot be said that his Honour acted upon any wrong principle; nor that he took into account extraneous or irrelevant matters. Nor (other than in relation to the first recording to which we will shortly turn) can it be said that his Honour acted upon a material misapprehension of the facts or failed to take into account some material consideration.
His Honour did not treat the recordings as a single piece of evidence, insofar as his Honour clearly noted the distinction between the position in which Ms White was in before and after the first video recording had been made. In that regard, his Honour inferred from the evidence that, after the brief telephone conversation between Ms White and Ms Lynch on 6 November 2017, after Ms Lynch had retrieved the first recording of 5 December 2014, Ms White "clearly understood" that evidence of animal cruelty had been recorded (see p 15) and his Honour was cognisant of the fact that there was a subsequent decision by Ms White for Ms Lynch to make further recordings.
His Honour expressly referred to the submission by Counsel for Ms Grech that, by 6 December 2014, Animals Australia had footage of alleged criminal conduct but instead of going to the relevant authorities had continued to engage in illegal conduct to obtain the evidence. His Honour also noted the Crown's acceptance of the fact that Ms White was in a different position after she was aware that criminal activity had been recorded than she had been before the first video recording was obtained, in terms of the difficulty in obtaining the evidence by other means (see at p 22) and the Crown's acceptance that it was in a "less strong" position as to the subsequent recordings in terms of arguing that what was done was done because of the difficulties in obtaining the evidence in some other way.
His Honour said that there was no reason why the police through the RSPCA could not have been approached "once the first recording was obtained" (see at p 30).
His Honour's finding that there was "some difficulty" in obtaining the evidence of all of the recordings other than in an unlawful way was a finding that was clearly open to his Honour. However, what is not apparent from his Honour's reasons is that his Honour weighed the difficulty of obtaining evidence of criminal activity before the first recording was obtained against the difficulty of obtaining such evidence once the first recording had been obtained. It stands to reason that once there was evidence in the form of the first recording, then whatever difficulties were (or were perceived to be) attendant on investigation of an anonymous complaint must have been lessened.
His Honour's reference to "repeated deliberate breaches", when read in context, is not easily read as referable to repeated breaches relating to the first recording in isolation (see at p 30 - "once the first recording was obtained … multiple breaches of the Surveillance Devices Act were then engaged in" - emphasis added). Therefore, while it was not necessarily incumbent on his Honour to address each of the s 138 factors separately ad seriatim in relation to each successive recording obtained by Ms Lynch, the weight to be attributed to factors such as the difficulty of obtaining the evidence and the gravity of the breach should at least have been addressed separately with respect to the first recording, as distinct from the assessment of those matters with respect to the later recordings.
On an overall reading of the reasons it cannot be said that his Honour assessed the first recording in isolation from the others in assessing the difficulty of obtaining that evidence. Therefore, while it is possible that his Honour might have reached the same conclusion in relation to the first recording even looking at it in isolation to the others, there is no reason expressed as to why the conclusion as to the difficulty of obtaining the evidence, and the gravity of the contravention, was considered to be the same for each of the recordings including the first recording. On this aspect of the reasoning, his Honour fell into error.
As to the complaint made by the Crown in respect of his Honour's comments about the speculation involved in Ms White's assessment of what would have happened had the complaint been referred to the authorities or had an application been made for a search warrant without the footage, no error is there disclosed. Ms White's opinion was no more than speculation, albeit that it was informed speculation based on her knowledge of the rumours within the industry and the matters discussed at the Special Commission of Inquiry into the greyhound racing industry. The fact that her opinion was vindicated by the ultimate report from that inquiry or by what happened when the matter was eventually reported does not gainsay that her approach was based on speculation as to what might happen if the complaint was forwarded to the authorities at the time. Mr O'Shannessy's evidence was not that an anonymous complaint would never be investigated; it seems to have depended on whether the complaint was as to organised cruelty or not. By the same token, his Honour's comments as to the other avenues open to Ms White to pursue the complaint are not gainsaid by what ultimately happened.
The Crown has established error in the House v The King sense in relation to the assessment of the difficulty of obtaining the first recording otherwise than in the unlawful way that it was obtained. That requires the Court to consider afresh the question whether the first recording should be admitted or rejected. In the Court's view, the desirability of admitting the first recording in this case does outweigh the undesirability of admitting the evidence in the way that it was obtained.
His Honour correctly concluded that such evidence is highly probative and very important to the Crown case (s 138(2)(a)); and that the allegations of animal cruelty that have been made are very serious (s 138(2)(c)). Similarly, his Honour also correctly concluded that the breaches involved in the making of the first recording were deliberate (s 138(2)(e)) and that the gravity of the contravention of the Surveillance Devices Act was very high and serious (s 138(2)(d)).
His Honour's assessment that the privacy implications of the contraventions (s 138)(2)(f)) were not of particular weight in the present case was not shown to be in error. True it is that the invasion of privacy was less than had the recordings been of activity in the family home itself; nevertheless in the overall assessment of the factors mandated to be taken into account by s 138 of the Evidence Act, in the present case the invasion of privacy in the filming of an area in which business activity is carried out and which is able to be inspected in the context of being an "animal trade" is not a factor that weighs heavily against the admission of the evidence.
No error was shown in his Honour's assessment of other factors, such as the unlikelihood that consequences might follow from the contraventions (s 138(2)(g)) or as to the public policy against encouraging unlawful investigation (or of encouraging private interests, albeit for laudable purposes, seeking to take the law into their own hands). The reliance sought to be placed on DW, as to the practical difficulties of obtaining evidence does not assist the Crown in the present case as the two cases are clearly distinguishable. In DW, the question was whether the trial judge erred in admitting a recorded conversation into evidence and turned on whether the exclusion in s 7(3) of the Surveillance Devices Act applied, which in turn depended on whether the recording was reasonably necessary for the protection of the lawful interests of the complainant (a teenage girl). The present case does not involve any such issue. Nor does the fact that Animals Australia and Ms Lynch were not in the same position as officials entrusted with a duty to uphold the law assist the Crown in downgrading the seriousness of the contravention of the Surveillance Devices Act. His Honour correctly assessed the contravention as very high and serious.
The factor which here tips the balance in favour of admission of the first recording is the difficulty of obtaining that evidence without more than an anonymous complaint - i.e., here, the difficulty of obtaining the evidence without a contravention of the Surveillance Devices Act. There is nothing to suggest that covert but lawful visual surveillance would have enabled evidence to have been obtained of activity in the bull ring (and it might be inferred from the fact that access to the bull ring was only obtained through a neighbouring property that this would not have been available). Although vigilantism (taking the law into one's own hands), even for laudable reasons, cannot and should not be encouraged and, as the trial judge said, condoning such conduct risks undermining the rule of law, nevertheless there were real concerns as to the unlikelihood of an anonymous complaint being able to be properly and effectively investigated (not least because of the risk that an official investigation or even the lodgement of a complaint might lead to a tip-off by people associated with the greyhound racing industry) and the suspected criminal activities was of a high degree of seriousness.
On balance, therefore, in the re-exercise of the discretion under s 138 of the Evidence Act, the Court has concluded that the first recording should be admitted into evidence. As there has not been demonstrated to be any error in the exercise of the trial judge's discretion in relation to the remaining recordings, the appeal from the decision to exclude those recordings should be dismissed.

[18]

Ground 2 - Exclusion of search warrant evidence

The Crown accepts that it was Mr O'Shannessy's evidence that he would not have applied for the search warrant without the (unlawful) recordings. However the Crown points out that it was not in dispute that the RSPCA inspectors had the power to enter and search the property of Mr Kadir on 11 February 2015 by reason of the operation of s 24G of the PCCA, and that they did so exercise those powers on entry. The Crown thus submits that the evidence obtained during the search could therefore have been obtained without the contravention of an Australian law, by exercise of lawful powers of entry and inspection. It is submitted that in those circumstances the evidence was not obtained in consequence of the breach of an Australian law (Martin v The Queen [2015] ACTCA 38 at [64]-[66]). Further and in the alternative, it is submitted that if ground 1(a) is upheld then this evidence should be admitted accordingly in the exercise of the s 138 discretion.
Mr Kadir points to Mr O'Shannessy's evidence in terms (at T 26/06/17 68.40-42) and notes that it was relied upon by his Honour in his judgment at (pp 32-33), as establishing a causal connection between the impropriety of the Animals Australia actions and the obtaining of evidence by the RSPCA personnel on 11 February 2015 upon their visit that day to the respondent's premises (whether that was under the aegis of the search warrant or under the RSPCA's powers under s 24G of the PCCA). He submits that no error can be shown in this conclusion by his Honour.
Mr Kadir argues that it is beside the point as to whether the same evidence could have been obtained lawfully in some other way by the RSPCA without this casual connection to the impropriety of Animals Australia. He maintains that Martin is distinguishable in that, there, the possibility of the listening devices in that case being able to have been installed even if the appellant had not been removed from the premises was only relevant to negate an inference that the reason for arresting the appellant was to allow for the installation of the devices. Mr Kadir argues that the dicta in Martin at [64]-[66] does not rise to the level of a principle applicable to this case.

[19]

Determination

It is clear from the passage (at p 33, extracted earlier [64]) that his Honour treated the search warrant evidence as falling within s 138(1)(b) of the Evidence Act, namely evidence obtained "in consequence of … a contravention of an Australian law" being the contraventions of the Surveillance Devices Act by persons employed or engaged by Animals Australia. At the hearing of the appeal Counsel for Mr Kadir contended that RSPCA and its staff also committed breaches of the Surveillance Devices Act. He contended that, in receiving and acting on the surveillance evidence, RSPCA and its staff contravened s 12 of the Surveillance Devices Act which prohibits the possession of, inter alia, a "record" of the "carrying on of an activity" knowing that it had been obtained by the use of a "listening device" or an "optical surveillance device". However, his Honour made no finding to that effect.
As stated, the only contravenors of an Australian law that his Honour identified were Animal Australia and the persons it engaged. Even if his Honour had made such a finding against RSPCA, it would not have added to the case for exclusion. It was not suggested to Mr O'Shannessy during his cross examination on the voir dire that he had breached any provision of the Surveillance Devices Act much less that he had done so deliberately. In those circumstances his Honour could not have found that any breach of s 12 of the Surveillance Devices Act was either deliberate, reckless or possibly even negligent (see R v Gallagher at [52]).
His Honour's conclusion that the search warrant evidence was obtained "in consequence of …. a contravention of an Australian law" was based on the finding that "but for the contravention of the Surveillance Devices Act, no application for the search warrant would have been made and there would have been no exercise of the power under s 24G of the Prevention of Cruelty to Animals Act". The use of the "but for" test in this context was consistent with authority (Gedeon v R at [149] and [200] per Bathurst CJ; see also Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 at [79] per Branson J) although as discussed below the degree of connection between the obtaining of the evidence and the contravention of Australian law can be significant. The evidence of Mr O'Shannessy (noted at [47] above) supported the finding that the application for the search warrant would not have been made without the surveillance evidence.
However, with respect, there is reason to doubt his Honour's finding that without the surveillance evidence there would not been any exercise of the power conferred by s 24G of the PCAA. Unlike a search warrant, that power can be exercised even if there is not a reasonable basis for believing there has been a contravention of the PCAA. As RSPCA was prepared to act on an anonymous complaint that alleged "live baiting" on an organised basis, it may have been that the power conferred by s 24G of the PCAA would have been exercised by Mr O'Shannessy or Mr Turner had Animals Australia merely passed on the anonymous complaint. However this cannot be developed further as Mr O'Shannessy was not asked whether in this case the powers conferred by ss 24G and 24K(1) of the PCAA would have been exercised had there only been an anonymous complaint and no surveillance evidence. This Court will proceed on the basis that, but for the obtaining of the surveillance evidence, the search warrant evidence would not have been obtained.
Section 138 of the Evidence Act does not provide that, if evidence obtained is "improperly or in contravention of an Australian law", then other evidence obtained "in consequence of an impropriety or of a contravention of an Australian law" will necessarily be excluded. Thus, the section does not enact the doctrine that prevailed at least for a period in the USA whereby evidence that was the "fruit" of an official illegality was necessarily excluded unless it was derived "by means sufficiently distinguishable to be purged of the primary taint" (Wong Sun v US 371 US 471 at 484 and 488). Instead, evidence of the kind referred to s 138(1)(b) is subject to a separate application of the weighing test in s 138(1) including its own consideration of the factors in s 138(3). His Honour correctly recognised this in the emphasised passage set out at [64] above.
In some, perhaps many, cases the considerations relevant to the application of the test in s 138(1) to evidence of the kind referred to in s 138(1)(a) will be equally applicable to evidence of the kind referred to in s 138(1)(b). This is more likely to be the case where the same investigative or regulatory body that commits the contravention of an Australian law also obtains the evidence referred to in s 138(1)(a) and (b). However, this case was relatively unusual in that the evidence falling within s 138(1)(a) was obtained as a consequence of deliberate contraventions of Australian law by a private body (namely, Animals Australia or persons engaged by it) whereas the evidence obtained as a consequence of that impropriety falling within s 138(1)(b) was obtained by a regulator who was not found to have contravened any Australian law or condoned any breach of Australian law. Despite this, his Honour concluded that the finding made in relation to the exercise of the discretion to exclude the surveillance evidence were "directly applicable" to the exercise of the discretion to exclude the search warrant evidence. With respect to his Honour, that approach was erroneous.
The concluding words of s 138(1) require a Court to undertake a weighing process that compares the "desirability" of admitting the evidence with the "undesirability" of admitting that evidence "that has been obtained in the way that evidence has been obtained". The section does not explicitly state why the admission of such evidence may be undesirable. However, the provision enacts, with some modification, the discretion to exclude illegally obtained evidence discussed in Bunning v Cross (1978) 141 CLR 54 (Parker v Comptroller-General of Customs [2009] HCA 7 at [27] per French CJ; Parker v Comptroller-General of Customs [2007] NSWCA 348 at [58]-[62]). Thus, the provision is directed to weighing "two competing considerations of public policy" being the "desirable goal of bringing to conviction the wrongdoer" and the "undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law" (Bunning v Cross at 74 per Stephen and Aickin JJ). In Gedeon at [177] Bathurst CJ stated that the exercise of the power conferred by s 138(1) "depends on considerations of 'high public policy' relating to the question of whether the effect of the illegality or impropriety on the administration of justice outweighs the legitimate public interest in the conviction of the guilty."
In applying s 138(1) to reject the surveillance evidence, his Honour characterised Animals Australia as an "investigative body without legislative or executive authority". His Honour observed that the Court "should be reluctant … to lend 'judicial integrity' to conduct by such organisations which deliberately breach the law by allowing the admission of evidence that such an organisation obtains unlawfully". In addressing the balancing test required by s 138(1) to the surveillance evidence his Honour stated (at p 32): Where an organisation which claims to have an investigative role, but has no legislative or executive authority, deliberatively contravenes the law to obtain evidence, the Court ... should be reluctant to admit such evidence in criminal proceedings. If the Courts do not adopt such an approach then in my view they run the risk of encouraging bodies which do not have any form of legislative or executive oversight to engage in deliberate illegal conduct. Such encouragement in my view would have the capacity to undermine the rule of law in our society.
While this approach to balancing the competing interests was apposite to the surveillance evidence it was not "directly applicable" to the search warrant evidence obtained by RSPCA even though that was obtained as a consequence of Animals Australia's contravention of the law. RSPCA is a body that has "legislative authority". The combination of his Honour's findings and the undisputed evidence was that RSPCA acted in discharge of its functions and conformed with the limits of its legislative authority. As noted the undisputed evidence was that RSPCA had no prior knowledge of or even reason to suspect that Animals Australia would contravene the Surveillance Devices Act. RSPCA was a body vested with a legislative responsibility for animal welfare. It was presented with strong evidence of "live baiting" and took the only relevant step that it could be expected to take namely seek lawful evidence to support the allegations made to it.
Sub-section 138(1) required his Honour to address the undesirability of admitting the search warrant evidence "in the way in which the evidence was obtained". In the circumstances of this case, the "way" in which the search warrant evidence was obtained was materially different to the "way" in which Ms Lynch obtained the surveillance evidence. It follows that the undesirability of receiving the search warrant evidence obtained by RSPCA in these circumstances is not the same as the undesirability of receiving the evidence obtained by Ms Lynch. While there was a serious contravention of an Australian law by Animals Australia that lead to the obtaining of the search warrant evidence, the rejection of that evidence in circumstances where RSPCA did not contravene the law has the potential to undermine the legislative policy of vesting it with regulatory functions. It follows that his Honour erred in directly applying the findings made in relation to the application of s 138(1) to the surveillance evidence to the search warrant evidence.
This error is also illustrated by considering the factor stated in s 138(3)(h) namely the "difficulty ... of obtaining the evidence without … contravention of an Australian law". In rejecting the surveillance evidence obtained by Ms Lynch, his Honour found that "[o]nce the first recording was obtained, there was no reason why the police through the RSPCA [NSW] could not have been approached and requested to apply for a warrant to install an optical surveillance device". His Honour treated the failure to do so as a factor that favoured exclusion of the evidence. However, that finding was not "directly applicable" to an application of s 138(1) to the search warrant evidence. The obtaining of the search warrant was the very step that his Honour suggested should have been undertaken once the first recording was obtained. The factor referred to in s 138(3)(h) did not support the rejection of the search warrant evidence, yet his Honour treated it as though it did.

[20]

Should the search warrant evidence be admitted?

It follows that this Court must reconsider afresh whether the search warrant evidence should be admitted or rejected. In relation to s 138(3), the probative value of the search warrant evidence has already been canvassed (s 138(1)(a)) as has the nature of the offence charged (s 138(3)(c)) and the nature, gravity and deliberateness of the relevant contravention of Australian law by staff employed or engaged by Animals Australia (s 138(3)(d), (e) and (f)). The search warrant evidence is important in that it provides strong support for the case against Mr Kadir and possibly against Ms Grech if there is other evidence implicating her. No action is contemplated against the perpetrators of the contravention (s 138(3)(g)). Sub-section 138(3)(g) has already been addressed.
In relation to s 138(1), the search warrant evidence supports the guilt of at least Mr Kadir and possibly Ms Grech in respect of serious offences of animal cruelty. The admission of the evidence supports the public policy of "bringing to conviction the wrongdoer" (Bunning v Cross at 80). Against that there is a degree of undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained given that the search warrant was in turn based on evidence procured by deliberate illegality. However, the "way" in which this evidence was obtained also encompasses the circumstance that the search warrants were obtained by a body vested with legislative responsibility for animal welfare, which conformed with the limits of its legislative authority, was not found to have breached Australian law and had no prior knowledge or involvement in the relevant contravention of an Australian law. As stated the rejection of search warrant evidence obtained by RSPCA in circumstances where it did not contravene the law has the potential to undermine the legislative policy of vesting it with regulatory functions.
It would be undesirable if a practice were to develop whereby private bodies with altruistic objectives deliberately breached the law to obtain evidence of illegal conduct and then provided it to regulators who then use that evidence to obtain the same or other evidence by lawful means. It can be accepted that the admission into evidence of the latter has the potential to confer "curial approval, or even encouragement" to the unlawful conduct (Bunning v Cross at 74). The extract from the letter from Animals Australia set out at [26] confirms that it decided illegally to gather evidence because the RSPCA could not do so. However, in this case a sanction for the unlawful conduct has already been imposed by the rejection of all of the surveillance evidence other than the first video recording. To a significant extent that rejection diminishes the suggestion that any "curial approval" is being given to the unlawful conduct of Animals Australia. Further, to an extent, the rejection of that evidence undermines the general efficacy of the approach outlined in Animals Australia's letter if it were to be pursued in other cases. If most of the illegally obtained evidence is rejected then by the time evidence is sought to be obtained lawfully, the illegal practice may have ceased or at least been covered up, rendering a prosecution that much more difficult.
In the end result, the desirability of admitting the search warrant evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. This evidence should be admitted.

[23]

Determination

The trial judge's reasons for excluding the alleged admissions are set out at [66]. His Honour treated the admissions allegedly made on 13 January 2015 and 18 January 2015 evidence as falling within s 138(1)(b). His Honour again applied a "but for" test as being sufficient to establish that the evidence was obtained "in consequence of an impropriety". Ms White was not asked whether, in the absence of the surveillance evidence, she would have still asked Ms Lynch to adopt the subterfuge of a greyhound owner seeking a trainer for their dogs in order to speak to Mr Kadir and Ms Grech. Nevertheless, given that the purpose of Ms Lynch's visit was to ascertain the identities of any trainers who may have used Mr Kadir knowing he used live baiting, it seems unlikely that Ms Lynch would have been asked to speak to Mr Kadir if strong evidence of live baiting was not already available.
However, at most there was only a bare causal connection between the trespass to Mr Kadir's property and the breaches of the Surveillance Devices Act on the one hand and the procuring of the alleged admissions on the other. In speaking to Mr Kadir and Ms Grech, Ms Lynch did not utilise any particular knowledge that she gained from the surveillance evidence. When she spoke to them, Ms Lynch was in no better position from having obtained the surveillance evidence than what was provided by the anonymous caller to Animals Australia on 21 November 2014.
The obtaining and viewing of the surveillance evidence was a step in the investigation by Animals Australia that lead to Ms Lynch speaking to Mr Kadir and Ms Grech on 13 January 2015 and 18 January 2015 but that was all. The position can be contrasted with admissions obtained from an accused who is unlawfully detained or physical evidence located by using information that was obtained unlawfully. In such cases the connection between the contravention of an Australian law and the evidence obtained in consequence of that contravention is far more proximate than the alleged admissions in this case. To adopt the phraseology of the United States' decisions, the alleged admissions were barely affected by the "primary taint" of the trespass and contraventions of the Surveillance Devices Act by Animals Australia (Wong Sun v US).
As with the search warrant evidence, in determining to reject the alleged admissions his Honour adopted the reasoning his Honour had already applied in rejecting the surveillance evidence. However, the "way" in which the alleged admissions were obtained was not the same as the "way" that the surveillance evidence was obtained vis a vis the contraventions of Australian law. There was no direct illegality or impropriety in the procuring of the admissions. The connection between the alleged admissions and the prior contraventions of Australian law was tenuous. This meant that the undesirability of admitting the evidence of the alleged admissions was not the same as the undesirability of admitting the surveillance evidence. The bare connection between the contravention of an Australian law and the procuring of the alleged admissions meant that the reception of the alleged admissions into evidence is unlikely to amount to "curial approval, or even encouragement" of the unlawful conduct involved in procuring the surveillance evidence (Bunning v Cross).
It follows that this aspect of his Honour's decision was affected by error. Further, the above analysis leads to the conclusion that the desirability of admitting the alleged admissions outweighs the undesirability of admitting that evidence in the way in which it was obtained. The alleged admissions should be admitted.

Legislation Cited (9)

Greyhound Racing Act 2009(NSW)

Evidence Act 1995(NSW)

Surveillance Devices Act 2007(NSW)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

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)

Cases Cited (22)

Judgment

THE COURT: This is an application pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) by the Director of Public Prosecutions for leave to appeal from rulings made by Buscombe DCJ at Penrith District Court on 28 June 2017, excluding certain evidence from the forthcoming joint trial of the accused (Mr Zeke Kadir and Ms Donna Grech) on counts of serious animal cruelty contrary to s 530 of the Crimes Act 1900 (NSW). It is the Crown's submission (which is conceded by Mr Kadir and not challenged by Ms Grech) that the effect of those rulings is to eliminate the Crown case on most of the counts in the indictments presented against the accused (counts 1-12) and substantially to weaken the remaining count (count 13) in the indictment against Mr Kadir.
The conduct alleged in each of the counts is that the accused, with the intention of inflicting severe pain, committed a serious act of cruelty on an animal. Counts 1-11 involve similar acts committed on rabbits by both the accused; count 12 relates to a deceased rabbit found on the premises which the Crown alleges was killed in a similar manner to the other occasions; count 13 (which is brought only against Mr Kadir) involves a possum allegedly brought to the premises by another trainer and used as live bait on that occasion. (The other trainer has already pleaded guilty to a similar charge.)
Mr Kadir and Ms Grech were arraigned and entered pleas of not guilty to each of the counts at Penrith District Court on 29 April 2016.
They made an unsuccessful application on 15 November 2016 for a permanent stay of the prosecutions against them on the basis that the bulk, if not all, of the evidence against them was obtained as a consequence of breaches of the Surveillance Devices Act 2007 (NSW). They relied on the principles set out in Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66.
On the first day of their trial, 26 June 2017, Mr Kadir and Ms Grech successfully applied to exclude the impugned evidence under s 138 of the Evidence Act 1995 (NSW), which confers a discretion to exclude illegally or improperly obtained evidence. The excluded evidence falls within three categories: first, covert video recordings of activities occurring at Mr Kadir's greyhound training premises on various dates from 5 December 2014 to 12 January 2015 (there being seven video recordings in all) (the "surveillance evidence"); second, evidence of alleged admissions made by Mr Kadir on 13 January 2015 and 18 January 2015 in conversations with a person posing as a greyhound owner (the "alleged admissions"); and, third, evidence obtained during the execution of a search by officers of the Royal Society for the Prevention of Cruelty to Animals, NSW Limited (the "RSPCA") upon Mr Kadir's property on 11 February 2015 (see [29] and [30]: the "search warrant evidence").

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