Astrit Kola v The Queen - [2007] ACTCA 16

ASTRIT KOLA v THE QUEEN [2007] ACTCA 16 (8 August 2007)

EVIDENCE – search warrant – challenge to validity – irregularity evident on face of document – whether severable – whether indicative of failure to properly exercise statutory discretion.

Drugs of Dependency Act 1989 (ACT), s 187

Human Rights Act 2004 (ACT), s 12, s 30

Evidence Act 1995 (Cth), s 138

R v Adrian Michael Caruso [2006] ACTSC 45

Long v Magistrates’ Court (Vic) (1997) 96 A Crim R 149

Ousley v The Queen (1997) 192 CLR 69

Karina Fisheries Pty Limited and Others v Mitson and Others (1990) 26 FCR 473

Inland Revenue Commissioners and Another v Rossminster Ltd and Others [1980] AC 952

Coco v The Queen (1993) 179 CLR 427

Tran Nominees Pty Ltd v Scheffler, Raven and the State of South Australia; The Queen v Ryan and Raven; Ex parte Tran Nominees Pty Ltd (1986) 42 SASR 361

R v Rees [2005] ACTSC 91 Gray J

R v Khajehnoori [2005] ACTSC 130

Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523

Malubel Pty Ltd v Elder [No 2] (1998) 73 ALJR 269

Von Arnim v The Health Insurance Commission [2004] FCAFC 33

R v Stankovich (2004) 149 A Crim R 88

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 - 2006
No. SCC 214A of 2004

Judges: Crispin P, Gray and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 8 August 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2006
  )          No. SCC 214A of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ASTRIT KOLA
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Crispin P, Gray and Cowdroy JJ
Date:  8 August 2007
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2006
  )          No. SCC 214A of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ASTRIT KOLA
Appellant

AND:THE QUEEN
Respondent

Judges:  Crispin P, Gray and Cowdroy JJ
Date:  8 August 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

In this appeal the appellant challenges the validity of a search warrant (the warrant) issued pursuant to s 187 of the Drugs of Dependency Act 1989 (ACT) (‘the Act’).

FACTS

On 23 of September 2004 the appellant was committed for trial on charges alleging that the appellant had been involved in the cultivation of cannabis at two suburban houses in Canberra. An indictment was then filed containing counts involving both houses. On 8 August 2005 the Court allowed an application to sever the indictment. On 30 November 2006 a fresh indictment was issued containing two counts, one of cultivating cannabis for the purpose of sale and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] ACTCA 16
Decision Date: 8 August 2007

CaseChat Overview and Summary

Astrit Kola appealed to the Court of Criminal Appeal of New South Wales against his conviction. The central dispute concerned the admissibility of evidence obtained pursuant to a search warrant, the validity of which was challenged by the appellant.

The primary legal issue before the Court was whether an irregularity apparent on the face of the search warrant rendered it invalid, and if so, whether that invalidity was severable. The Court was also required to consider whether such an irregularity indicated a failure by the issuing officer to properly exercise their statutory discretion in authorising the search.

The Court reasoned that while the search warrant contained an irregularity, this did not necessarily vitiate the entire document. Applying principles of statutory interpretation and the law relating to the severability of defects in legal instruments, the Court determined that the irregularity was not so fundamental as to render the warrant void. Furthermore, the Court found no evidence to suggest that the issuing officer had failed to properly exercise their discretion, concluding that the warrant was validly issued and the evidence obtained was admissible.

Consequently, the appeal was dismissed.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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