Bensted v Edwards - [2003] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

Bensted v Edwards [2003] QCA 145

PARTIES:

HAZEL BENSTED
(appellant/applicant)
v
JONATHON DAVID EDWARDS
(respondent)

FILE NO/S:

CA No 325 of 2002
DC No 46 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2003

JUDGES:

de Jersey CJ, Jerrard JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs to be assessed

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – GENERALLY – where applicant was licensed to possess certain firearms – where firearms found to be not stored in accordance with s 60(2) Weapons Regulation 1996 (Qld) – whether firearms were in applicant’s physical possession at material time

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – SEARCH WARRANTS – EXECUTION – where terms of both warrants defective – where both warrants purported to grant the power to do anything that might cause structural damage – where earlier warrant also defective being described as issued in relation to a forfeiture proceeding – where defects did not result in any conduct by the executing officers which exceeded the authorisation granted – whether defects made conduct of police officers unlawful

MAGISTRATES – APPEALS FROM AND CONTROL OVER MAGISTRATES – QUEENSLAND – APPEAL – WRONGFUL ADMISSION OR REJECTION OF EVIDENCE – where defects in warrants arose in a technical sense and not from a deliberate or reckless disregard for the law – where no evidence to suggest executing police officers acted in violation of any law, statutory or common property right – whether Magistrate erred in failing to exercise discretion to exclude evidence obtained through execution of defective warrants

Police Powers and Responsibilities Act 2000 (Qld), s 68
Weapons Regulation 1996 (Qld), r 60(2)

Bunning v Cross (1978) 141 CLR 54, considered
George v Rockett (1990) 170 CLR 104, considered
Horinack v Suncorp Metway Insurance Limited [2001] 2 Qd R 266, distinguished
Reeve v Wardle; ex parte Reeve [1960] Qd R 143, cited
The Case of Swans (1592) 77 ER 435, considered

COUNSEL:

A C Wrenn for the applicant
A R Philp for the respondent

SOLICITORS:

Solicitor for Commissioner of Police for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with those reasons.

JERRARD JA: On 3 August 2001 the applicant Hazel Bensted was convicted in the Mareeba Magistrates Court of an offence against s 60(2) of the Weapons Regulation 1996 (Qld). Conviction was by order made after a reserved judgment. She was fined $300.00 and allowed two months to pay. On 13 September 2002 her appeal to the District Court in Cairns against that conviction was dismissed. She has applied to…

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.

Continue reading Bensted v Edwards

Details

AGLC: Bensted v Edwards [2003] QCA 145
Case: [2003] QCA 145
Decision Date: 4 April 2003

CaseChat Overview and Summary

In the matter of Bensted v Edwards, the appellant challenged the decision of a magistrate regarding the admissibility of evidence obtained through the execution of defective search warrants. The appellant, who held a firearms licence, was found to have firearms that were not stored in accordance with the statutory provisions. The primary legal issue was whether the firearms were in the appellant's physical possession at the relevant time, and whether the execution of the warrants was lawful despite their defects. The court also needed to determine whether the magistrate erred in failing to exclude the evidence obtained through the defective warrants, despite the absence of any suggestion that the police officers acted unlawfully.

The court examined the nature of the defects in the warrants and concluded that while the warrants were technically defective, there was no evidence that the police officers acted in violation of any law or statutory or common law property right. The court held that the defects did not render the conduct of the police officers unlawful, as there was no deliberate or reckless disregard for the law. The court further held that the magistrate did not err in not exercising the discretion to exclude the evidence obtained through the defective warrants. The court reasoned that the defects were not so severe as to render the entire process unlawful, and the evidence was still relevant and probative in determining the possession of the firearms.

As a result, the court found that the evidence obtained through the defective warrants was admissible, and the appellant's possession of the firearms was established. The court held that the magistrate's decision was correct and dismissed the appeal. The court also dismissed the application for leave to appeal and ordered that costs be assessed. The court's decision highlights the importance of ensuring that warrants are properly drafted and executed to avoid potential issues with the admissibility of evidence. However, the court also acknowledged that minor defects in warrants do not necessarily render the evidence inadmissible if the police officers acted within the scope of the authorisation granted.

Orders

Orders of the court

Application for leave to appeal refused with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bensted v Edwards [2003] QCA 145
PARTIES:	HAZEL BENSTED (appellant/applicant) v JONATHON DAVID EDWARDS (respondent)
FILE NO/S:	CA No 325 of 2002 DC No 46 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2003
JUDGES:	de Jersey CJ, Jerrard JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs to be assessed
CATCHWORDS:	FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – GENERALLY – where applicant was licensed to possess certain firearms – where firearms found to be not stored in accordance with s 60(2) Weapons Regulation 1996 (Qld) – whether firearms were in applicant’s physical possession at material time CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – SEARCH WARRANTS – EXECUTION – where terms of both warrants defective – where both warrants purported to grant the power to do anything that might cause structural damage – where earlier warrant also defective being described as issued in relation to a forfeiture proceeding – where defects did not result in any conduct by the executing officers which exceeded the authorisation granted – whether defects made conduct of police officers unlawful MAGISTRATES – APPEALS FROM AND CONTROL OVER MAGISTRATES – QUEENSLAND – APPEAL – WRONGFUL ADMISSION OR REJECTION OF EVIDENCE – where defects in warrants arose in a technical sense and not from a deliberate or reckless disregard for the law – where no evidence to suggest executing police officers acted in violation of any law, statutory or common property right – whether Magistrate erred in failing to exercise discretion to exclude evidence obtained through execution of defective warrants Police Powers and Responsibilities Act 2000 (Qld), s 68 Weapons Regulation 1996 (Qld), r 60(2) Bunning v Cross (1978) 141 CLR 54, considered George v Rockett (1990) 170 CLR 104, considered Horinack v Suncorp Metway Insurance Limited [2001] 2 Qd R 266, distinguished Reeve v Wardle; ex parte Reeve [1960] Qd R 143, cited The Case of Swans (1592) 77 ER 435, considered
COUNSEL:	A C Wrenn for the applicant A R Philp for the respondent
SOLICITORS:	Solicitor for Commissioner of Police for the respondent