Gary Shane Austin v The Queen

[2011] ACTCA 3

GARY SHANE AUSTIN v THE QUEEN [2011] ACTCA 3 (15 February 2011)

EX TEMPORE JUDGMENT

Criminal Code 2002 (ACT) s 603
Drugs of Dependence Act 1989 (ACT) s 187
Evidence Act 1995 (Cth) s 138

R v Rozenes; Ex parte Burd (1994) 120 ALR 193
Oates v Williams (1998) 84 FCR 348
Sankey v Whitlam (1978) 142 CLR 1
Joosse v Australian Securities and Investment Commission (1999) 73 ALJR 232

Venezia v Marshall (2001) 120 A Crim R 596

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

No. ACTCA 47 of 2010
No. SCC 297 of 2009

Judges:         Penfold and Marshall JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date:            15 February 2011

IN THE SUPREME COURT OF THE       )          No. ACTCA 47 of 2010
  )          No. SCC 297 of 2009
AUSTRALIAN CAPITAL TERRITORY)
  )

COURT OF APPEAL  )

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

BETWEEN:GARY SHANE AUSTIN

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Penfold and Marshall JJ and Nield AJ
Date:  15 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. Leave to appeal is refused.

IN THE SUPREME COURT OF THE       )          No. ACTCA 47 of 2010
  )          No. SCC 297 of 2009
AUSTRALIAN CAPITAL TERRITORY)
  )

COURT OF APPEAL  )

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

BETWEEN:GARY SHANE AUSTIN

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Penfold and Marshall JJ and Nield AJ
Date:  15 February 2011
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Mr Austin has been charged with trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT). Police found the cannabis at premises occupied by Mr Austin after a search at those premises pursuant to a search warrant issued by a Magistrate under s 187(2) of the Drugs of Dependence Act 1989 (ACT).

1. Before the primary judge, Mr Austin applied for an order that evidence obtained from the execution of the warrant be excluded. The only ground pressed on the application for leave to appeal from his Honour’s decision not to make such an order is that the manner of the execution of the warrant was improper.

1. Mr Austin asserts that the primary judge should have excluded the impugned evidence under s 138 of the Evidence Act 1995 (Cth) on the basis that it was illegally obtained. Mr Austin contends that the evidence was illegally obtained because the police did not make a prior announcement of their intention to enter the premises.

1. The primary judge accepted that police are required ordinarily to announce their intention to enter premises prior to seeking to enter such premises. His Honour noted that an exception of “exigent circumstances” applied and had been acknowledged to exist in judgments of the Court of Criminal Appeal in New South Wales and the Supreme Court of Canada.

1. The primary judge considered that among the exigent circumstances exception was what he described at [62] of his reasons for judgment as:

…..a need, based on reasonable grounds, to ensure that evidence, for which it is in the contemplation of the warrant to authorise a search and seizure, will not be destroyed.

1. His Honour accepted the police were entitled to enter the premises without knocking on the door and announcing their intention to enter because of the likelihood that the evidence the subject of the warrant may be destroyed by Mr Austin at short notice. Although cannabis was found at the premises, the search warrant was obtained on the basis of the existence of a reasonable ground for suspicion that Mr Austin had methylamphetamine on the premises. Such a drug exists in white powder form and is capable of being flushed down a toilet cistern at very short notice.

1. Mr Austin seeks to contend on appeal that, in the event that there is an “exigent circumstances” exception, it applies in more limited circumstances than found to exist by the primary judge.

1. The respondent opposes the grant of leave to appeal on the basis that the grant of such leave would fragment the criminal trial. Counsel for the respondent relies on authorities which stand for the proposition that leave to appeal against interlocutory judgments during the course of a criminal trial or process should not be granted, other than in extraordinary circumstances.

1. Counsel referred to the judgment of Dawson J in R v Rozenes; Ex parte Burd (Rozenes) (1994) 120 ALR 193 at 195 where his Honour said:

This court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances.

In Rozenes, the accused had been arraigned but a jury had not been empanelled.

1. Further, counsel referred to the judgment of the Full Court of the Federal Court in Oates v Williams (Oates) (1998) 84 FCR 348 at 361 where the Court said:

... we accept, as we must, that the courts have repeatedly indicated that the fragmentation of a criminal trial by way either of leave to appeal or judicial review is highly undesirable and will only be allowed in exceptional circumstances. This point has been made by the High Court in many cases ...

Their Honours then set out a series of cases commencing with Sankey v Whitlam (1978) 142 CLR 1. However the Court recognised that there have been cases where the court has reversed a decision of the trial judge made in the course of a criminal process. Indeed in Oates itself the court was prepared to grant leave for special reasons connected with the extradition of the appellant.

1. Additionally, counsel referred to Joosse v Australian Securities and Investment Commission (1999) 73 ALJR 232 at 234, where Hayne J referred to an application before him as leading to “the fragmentation of the criminal process”. His Honour then said, “(t)his court has said repeatedly that the criminal process should not be interrupted by testing interlocutory rulings that may be given in the course of proceedings.” As in Rozenes, the defendant had been arraigned but no jury had been empanelled.

1. Taking into consideration the abovementioned authorities, this court should not grant leave to appeal from an interlocutory judgment of a trial judge in a criminal proceeding unless there are exceptional circumstances requiring that such leave should be granted. In the ordinary course a criminal process should not be fragmented by resort to interlocutory appeals.

1. There is a public interest in the expeditious conduct of criminal proceedings. In that regard see Venezia v Marshall (2001) 120 A Crim R 596, where the Court of Appeal in Victoria said at 597, “The appeal procedure is not to be used as a means of buying time.”

1. In the current circumstances, Mr Austin retains his right to appeal from a guilty verdict in his trial, should one be given. Such an appeal may include the grounds the subject of the current application for leave to appeal and any other ground on which he may wish to rely. Of course, should Mr Austin be found not guilty of the charge he faces, ventilation of the matters the subject of the application for leave to appeal would be unnecessary.

1. Having regard to the foregoing it is appropriate to refuse Mr Austin leave to appeal from the interlocutory judgment of the primary judge.

   I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:     17 February 2011

Counsel for the Appellant:  Mr J O’Keefe
Solicitor for the Appellant:  Mr J O’Keefe
Counsel for the Respondent:  Mr A Doig
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  15 February 2011
Date of judgment:  15 February 2011