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Author Topic: NSW Court Rules that Eavesdropping Evidence is Admissible  (Read 616 times)

Prickle

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NSW Court Rules that Eavesdropping Evidence is Admissible
« on: February 06, 2017, 09:03:24 AM »

NSW Court Rules that Eavesdropping Evidence is Admissible

Czaba “Chubby” Magyari ran a well-organised drug syndicate selling large quantities of heroin and cocaine. The Hungarian national lived in a Drummoyne unit and had a premises in Bexley North he ran as a drug safe house.

His groups was comprised of seven members – his ex-girlfriend Lilla Toemoeskoezy, who was allegedly involved in laundering money, Christian Cuzman – nicknamed ‘the fat gypsy’ – and George Bucataru – ‘the thin gypsy’ – who lived in Adelaide and allegedly bought large quantities of drugs for on-sale.

There were Gabriella Suto and Mate Bodo, who allegedly ran drugs to the two gypsies in Adelaide. Laszlo Bartos lived in Brisbane and was another alleged customer of Magyari’s.

The seventh member was Magyari’s best friend, Tamas Czako, who was in Australia from Hungary on a temporary visa.

The group are arrested

The police had Magyari under surveillance for months, before he was arrested in May 2010, along with the other members. Police seized more than 2 kilograms of cocaine and heroin – with a street value of more than $1.5 million. They intercepted 1,400 phone calls during their investigations.

Magyari committed suicide in his Parklea prison cell in July that same year.

Police executed a search warrant at Toemoeskoezy’s flat on May 31, 2010. Tamas Czako was staying there the time, and the two were subsequently arrested.

Hungarian national found guilty on two counts

Mr Czako was tried in the District Court on one count of participation in a criminal group under section 93T(1) of the Crimes Act 1900 (NSW) and one count of money laundering under 193B(2). He plead not guilty, but the jury found him guilty on both counts.

During the trial, the prosecution presented evidence that Czako participated in the criminal group in three ways. Firstly, by assisting in the installation and operation of surveillance equipment at both the Drummoyne unit and the Bexley North house.

Evidence was also presented that he transferred three sums of money from his own bank account into Magyari’s account in Hungary. Each sum was just under $10,000 – allegedly to avoid detection – and was transferred over three consecutive days.

The third way was that he accompanied Toemoeskoezy over a two day period to several different banks, where she withdrew a total of around $95,000 in cash after Magyari was arrested.

On May 17 2013, Czako was sentenced to 18 months imprisonment on the first count and two years on the second. Both sentences were suspended in under section 12 of the Crimes (Sentencing Procedure) Act 1999.

Upon his conviction, Czako was required to return to Hungary. Whilst in Australia, he’d been unemployed and staying at Magyari’s place most of the time.

NSW Court of Criminal Appeal (NSWCCA)

Czako appealed his conviction to the NSWCCA which handed down its decision on August 3, 2015. He listed nine grounds of appeal, all of which were dismissed.

One of those grounds was that the trial judge should not have admitted the evidence of Sergeant John Kisa pertaining to remarks that Czako had made to Ms Toemoeskoezy in Hungarian, whilst police were searching her flat.

Sergeant Kisa was one of the officers assisting in the search. He was raised by his Hungarian grandmother and spoke fluent Hungarian all his life. He was brought into the investigation because five of the group’s members spoke Hungarian.

On the day of the search, Kisa was ostensibly there to translate any documents located in the residence that were written in Hungarian.

Incriminating remarks overheard

During the search, Czako and Toemoeskoezy spoke to each other in Hungarian, even though the officer in charge, Sergeant Schreuder, asked them to speak in English. Kisa was not in the immediate presence of Czako for most of the search, so he could not hear much of what was said.

But he did claim to overhear a number of statements that were admitted into evidence during the trial. He testified that he had heard Czako say, “They are trying to make links, this is getting interesting.” As well as, “They are not going to find the thing I told you about earlier.” And later, “They can’t link us to anything.”

And when officers located a document containing Hungarian writing, Czako is alleged to have said to Toemoeskoezy in a heated manner, “I told you to throw that away before.”

Unfair evidence

Czako’s criminal defence lawyer argued the evidence should have been excluded under section 90 of the Evidence Act 1995 (NSW) which states:

“In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

The defence submitted that an aspect of unfairness was the assertion that Kisa was deliberately sent to the search in the role of an eavesdropper. It was asserted that Kisa’s participation was hardly a coincidence. Kisa did not concede he was an eavesdropper, but acknowledged his participation was not a coincidence.

No proof the officer was there to eavesdrop

However, Justice McCallum found that it did not follow that Kisa’s “role at the execution of the search warrant was to eavesdrop,” as during the search he was engaged in the role of a searcher for up to 95 percent of the time and was unable to hear most of what Czako was saying.

The judge further noted that Czako’s remarks were made after he’d been expressly asked to speak in English.

The judge found that Sergeant Schreuder trial testimony that once Mr Kisa had told him he’d heard Czako making incriminating statements, Schreuder did not ask him to get Czako to repeat them as he wanted to allow Kisa to keep eavesdropping, did not alter the fact Kisa was initially there for a fair and proper purpose. He therefore found that the appellant’s suggestion of unfairness was “without substance and must be rejected.”

Further objection

This evidence was further objected to because Czako had not been given the opportunity to adopt or contest the officer’s notes regarding the overheard remarks.

Justice McCallum agreed with the trial judge that the evidence was not unfair as the accused had been cautioned, was not a detained person, and was not obliged to speak to the police, nor speak in their presence.

The judge found that once Czako began making incriminating statements, there was no requirement to interrupt him and ask him to adopt the notes of what had just been said. “The use of an unguarded incriminating remark heard by police is not inherently unfair,” McCallum remarked.

Unfair prejudice argument dismissed

Lastly, the defence lawyer argued that the evidence should have been excluded under section 137 of the Evidence Act, which states:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

The defence lawyer submitted that his client’s remarks were unfairly prejudicial and liable to exclusion because they we “equivocal and were open to innocent explanation.” But Justice McCallum dismissed that argument, pointing out that “evidence is not prejudicial because it tends to prove an accused’s guilt.”

The Court found ultimately found the evidence was admissible and dismissed the ground of appeal. However, the decision does not clarify whether the evidence would have been excluded if it was found that Sergeant Kisa was indeed sent to the search in the role of an eavesdropper.

http://nswcourts.com.au/articles/nsw-court-rules-that-eavesdropping-evidence-is-admissible/
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