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Fletcher (a pseudonym) v Knight (a pseudonym) (No 2)

Fletcher (a pseudonym) v Knight (a pseudonym) (No 2)

Case [2025] ACTCA 8 28 February 2025

Statutory Construction

Criminal Law

Evidence

Civil Procedure

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Fletcher (a pseudonym) v Knight (a pseudonym) (No 2)
Citation:	[2025] ACTCA 8
Hearing Dates:	15 May 2024
Decision Date:	28 February 2025
Before:	McCallum CJ, Mossop and Baker JJ
Decision:	The appeal and the cross-appeal are dismissed.
Catchwords:	CRIMINAL LAW – Appeal against ruling admitting unlawfully obtained evidence under s 138 of the Evidence Act 2011 (ACT) – seizure of items under a three-condition warrant – whether requisite belief required to be formed before seizure of property under three-condition warrant EVIDENCE – Cross-appeal against exclusion of evidence – attempted cover up of contravention of Australian law by police – whether attempted cover up relevant to consideration of the “undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained” in s 138 of the Evidence Act APPEALS – Appropriate standard of appellate review under s 138 of the Evidence Act – House v The King error not established – whether House v The King error required – whether Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 should be followed – no challenge to decision in Sidaros – correctness standard applied
Legislation Cited:	Acts Interpretation Act 1901 (Cth), ss 13, 15AB, 36 Acts Interpretation Amendment Act 2011 (Cth) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 49 Crimes Act 1900 (ACT), s 61B Crimes Act 1914 (Cth), ss 3C, 3E, 3F, 3K, 3LA, 3Q, 10, pt IAA Criminal Code 2002 (ACT), s 45A Evidence Act 1995 (Cth), pt 13.11 Evidence Act 2008 (Vic), ss 97, 101, 137 Evidence Act 2011 (ACT), ss 137, 138 International Covenant on Civil and Political Rights art 17 Human Rights Act 2004 (ACT), s 12 Legislation Act 2001 (ACT), ss 138, 139, 140, 141 Supreme Court Act 1933 (ACT), s 37O
Cases Cited:	Adler v Gardiner [2002] FCA 1141; 43 ACSR 24 Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Baker v Campbell [1983] HCA 39; 153 CLR 52 BC v The Queen [2019] NSWCCA 111 Bunning v Cross (1978) 141 CLR 54 Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; 257 FCR 166 Caratti v Commissioner of Australian Federal Police (No 2) [2016] FCA 1132 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 33 VR 440 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Dunesky v Elder [1994] FCA 1020; 54 FCR 540 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 Em v The Queen [2007] HCA 46; 232 CLR 67 Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; 124 FLR 384 JW v R [2022] NSWCCA 206; 302 A Crim R 365 Kadir v The Queen [2020] HCA 1; 267 CLR…

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 Fletcher (a pseudonym) v Knight (a pseudonym) (No 2)

Details

AGLC: Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) [2025] ACTCA 8
Case: [2025] ACTCA 8
Decision Date

CaseChat Overview and Summary

The appeal and cross-appeal concerned the admissibility of evidence obtained under a three-condition warrant. The primary legal issues were whether the requisite belief for the seizure of property under such a warrant needed to be formed prior to the seizure, and whether an attempted cover-up of a contravention of Australian law by police was relevant to the balancing exercise under section 138 of the Evidence Act 2011 (ACT). The court also considered the appropriate standard of appellate review for decisions made under section 138, determining that a correctness standard applied, rather than the more deferential "House v The King" error standard, and that the decision in *Sidaros v The Queen* [2020] ACTCA 11 should be followed.

The Court of Appeal dismissed both the appeal and the cross-appeal. It reasoned that the appeal against the ruling admitting unlawfully obtained evidence under section 138 of the Evidence Act 2011 (ACT) failed because the appellants had not established a "House v The King" error. The court applied a correctness standard to its review of the decision, finding no error in the original decision to admit the evidence. The cross-appeal, which argued for the exclusion of evidence due to an attempted cover-up by police, was also dismissed. The court found that while the attempted cover-up was relevant to the overall consideration of undesirability under section 138, it did not, in this instance, outweigh the desirability of admitting the evidence.

Orders