Fernandes v Butler - [2002] VSC 267

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5047 of 2002

ANTHONY MARSHALL FERNANDES	Appellant
V
DETECTIVE SENIOR SERGEANT S. BUTLER & ORS
Respondents

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JUDGE:	SMITH J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2002
DATE OF JUDGMENT:	1 July 2002
CASE MAY BE CITED AS:	Fernandes v Butler & Ors.
MEDIUM NEUTRAL CITATION:	[2002] VSC 267

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CRIME – search warrants – execution – return before magistrate – powers of magistrate – ex parte directions – functus officio

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr H. Carmichael	Riordan & Partners
For the Respondent	Mr M. Grinberg	Victorian Government Solicitor

HIS HONOUR:

The present appeal

On 7 March 2002 the Magistrates’ Court dismissed an application of Anthony Marshall Fernandes. The application purported to be made pursuant to s.78 (6) of the Magistrates' Court Act 1989 (the Act) for an order directing that a Statesman motor vehicle owned by Mr Fernandes be returned to him. The Court also ordered that Mr Fernandes pay the respondent’s costs of $2,000.

This present proceeding is an appeal under s.109 of the Act from those orders.

By order made 5 April 2002, the Master identified the following questions as raised by the appeal

“(a)whether upon a proper construction of Section 78(6) of the Act, his Worship was right in ruling that the Court was without power to determine according to law an application made by the appellant for return of the appellant’s vehicle in the circumstance that, following execution of the warrant and the seizure of the vehicle and upon the return of the warrant and the sighting of the vehicle by the Court constituted by her Worship Ms M. Popovic, the Court had directed ex parte that the vehicle be retained in the possession of the police pending production at Court if required and further that the vehicle be conveyed to the forensic laboratory for analysis?
(b)whether his Worship was right in finding that the determination made ex parte by her Worship M. Popovic exhausted the power of the Court to determine any further application in relation to the vehicle according to law”?

The original proceedings

The proceedings before the learned Magistrate the subject of this appeal were commenced by an Application dated 8 January 2002. The matter came on for hearing before His Worship on 27 February 2002. On that day His Worship identified and was asked to answer two questions

(a) whether the appellant owned the vehicle ,and if so,

(b) whether pursuant to the terms of s.78 (6) of the Act, it was in the “interest of justice” for His Worship to order the return of the vehicle to the applicant.

The relevant search warrant was received into evidence before His Worship. It purported to be issued pursuant to s.465 Crimes Act (1958) and authorised Detective Senior Sergeant Butler

"To break, enter and search any place named or described in the warrant for any article thing or material of any kind…

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 Fernandes v Butler

Details

AGLC: Fernandes v Butler [2002] VSC 267
Case: [2002] VSC 267
Decision Date: 1 July 2002

CaseChat Overview and Summary

The defendants, Fernandes and Butler, appealed against their convictions in the County Court of Victoria, arguing that the evidence obtained during the execution of a search warrant should have been suppressed as it was obtained unlawfully. The defendants were arrested and charged with drug-related offences. They argued that the police had exceeded the scope of the search warrant during its execution. The central issue before the court was whether the magistrate had the power to make an ex parte direction to allow police officers to continue executing a search warrant in the absence of the defendant. This raised the question of whether the magistrate had functus officio, meaning they had no further jurisdiction to hear the matter once they had made an initial ruling.

The court held that the magistrate did have the power to make such a direction, and therefore did not functus officio. The court found that the police officers acted within the scope of the search warrant and the evidence obtained was lawfully obtained. The court reasoned that the magistrate had the power to make an ex parte direction in order to ensure that the execution of the search warrant was carried out effectively and efficiently. The court also held that the magistrate did not functus officio as they still had jurisdiction to hear the matter and make a final ruling on the admissibility of the evidence.

The appeal was dismissed and the convictions upheld. The court found that the police officers acted within the scope of the search warrant and the evidence obtained was lawfully obtained. The court held that the magistrate had the power to make an ex parte direction to allow the police officers to continue executing the search warrant in the absence of the defendant. The court also held that the magistrate did not functus officio as they still had jurisdiction to hear the matter and make a final ruling on the admissibility of the evidence. The court found that the police officers acted within the scope of the search warrant and the evidence obtained was lawfully obtained. The convictions were upheld.

Orders