Bandao v R; Bruce v R [2018] NSWCCA 181
Bandao v R; Bruce v R [2018] NSWCCA 181 · Read the judgment on AustLII
Catchwords: Secret recordings – illegally obtained evidence – cross examination – procedure
In an era where everybody has a mobile recording device immediately to hand, what happens if material comes to light which might be relevant to a defence, but might also have been recorded illegally? In this decision of the Court of Criminal Appeal, the court has set out a step-by-step process which applies to both prosecution and defence lawyers.
The two applicants were convicted at trial of a variety of sex offences. They, together with a third man, were alleged to have committed a number of sexual acts upon the complainant in an outside toilet room at the home of one of them. The complainant was heavily intoxicated at the time, and had been helped out to the toilet room by Ms Tejada, the girlfriend of one of the applicants, where the two girls began throwing up, before the various acts of sexual intercourse the subject of the charges.
During the trial, counsel for Mr Bruce started cross-examining the complainant about a conversation she had with Ms Tejada a couple of weeks after the alleged offences. It became clear during that cross- examination that Ms Tejada had in fact secretly recorded that conversation. The next day of trial, with the complainant still under cross-examination, the Crown submitted that the recording had been made illegally, in contravention of the Surveillance Devices Act 2007 (NSW), and that, having been illegally obtained, it should not have been the subject of cross-examination. Following a voir dire the Crown obtained a copy of the recording. Cross-examination of the complainant eventually continued, during which it then became clear that the Crown had subsequently given a copy of the recording to the complainant (that is, whilst she was still under cross-examination). This was the subject of acute criticism from the trial judge, who described the complainant as ‘forewarned and forearmed’ as a result, and it led to (ultimately unsuccessful) applications for permanent stays of proceedings by both accused. On appeal, one of the grounds of appeal alleged that the Crown Prosecutor’s conduct in respect of the secret recording amounted to a miscarriage of justice.
The court (Hoeben CJ at CL; Price and Wilson JJ agreeing) dismissed this, and indeed all the other, grounds of appeal. It was true that the recording was illegal, inter alia because in making the recording, Ms Tejada was protecting not her own lawful interests, but those of her boyfriend (at [100]). Answers obtained through the use of an unlawful recording in cross-examination would clearly fall within the prohibition created by s138(1)(b) of the Evidence Act 1995 (NSW) (at [105]). What ought to have happened at the trial was that counsel for Mr Bruce should have obtained a ruling under s138 of the Evidence Act to rely upon the material in cross-examination. If the trial judge had ruled in favour of admitting it, it would have been open to the Crown to apply for access to the recording, or failing that to issue a subpoena. All of that should have happened before cross-examination of the complainant on the recorded conversation. Given that the material was not disclosed prior to cross-examination commencing in this particular case, the Crown should have advised defence counsel of his intention to make the recording available to the complainant during cross-examination, and in the absence of consent should have made an application to that effect to the court. It was wrong for him not to have done so and he was correctly criticised for it ([109]-[111]). That notwithstanding, the criticism of the Crown’s conduct and its effect on the cross-examination was significantly overstated (at [97]) in the context of the trial as it actually unfolded (which included evidence from a third co-offender, who was giving evidence against these two applicants).