Henderson v Billing - [2015] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Henderson v Billing
Citation:	[2015] ACTSC 226
Hearing Date(s):	15 July 2015
DecisionDate:	18 August 2015
Before:	Burns J
Decision:	The appeal is dismissed.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Particular Offences – possessing a prohibited substance. APPEAL – Appeals from Magistrates – where search warrant not properly issued – ss 194 and 205 of the Crimes Act 1900 (ACT) –- where warrant issued by Magistrate and police officer are not in substantially the same form - whether search authorised by s 188 of the Drugs of Dependence Act 1989 (ACT) – meaning of the phrase “order of the court”– held search unlawful – applied test in s 138 of the Evidence Act 2011 (ACT) – held evidence of search and seizure should be admitted – appeal is dismissed.
Legislation Cited:	Crimes Act 1900 (ACT) ss 194, 205 Customs Act 1901 (Cth) s 198 Drugs of Dependence Act 1989 (ACT) ss 171, 184, 187, 188 Evidence Act 2011 (ACT) s 138 Legislation Act 2001 (ACT) s 139
Cases Cited:	Hilton Wells (1985) 157 CLR 57
Parties:	Eleanor Henderson (Appellant) Andrew Billing (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Ms S Jowitt (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 81 of 2014
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 3 September 2014 Case Title: Eleanor Crystal Henderson v Andrew Mark Billing Citation: CC13/6009

BURNS J:

On 3 September 2014, the appellant was convicted after a contested hearing in the Magistrates Court of an offence of possessing a prohibited substance, namely heroin, contrary to s 171 (1) (b) of the Drugs of Dependence Act 1989 (ACT). She appealed from that conviction on the following ground:

The Magistrate erred in finding that a search of the appellant’s premises by police, against her wishes, during which drugs were found, was lawful, and further in admitting evidence of same over objection.
Particulars
The police search of the appellant’s premises was unlawful as there was no valid warrant authorising the search. Nor did the emergency powers under s 188 of the Drugs of Dependence Act 1989 (ACT) apply.
(Emphasis as per original)

Facts

On 8 May 2013, members of the Australian Federal Police (AFP) assisted Australian Customs Officers in the execution of an s 198 Customs Act 1901 (Cth) search warrant at the premises where the appellant was living. The appellant and a male person were at the premises. During the course of the search, the appellant told a Customs Officer that she had heroin in a drawer in her bedroom. This was overheard by the respondent, a member of the AFP. The search warrant under s 198 of the Customs Act 1901 did not authorise the seizure of illicit drugs.

The respondent then conducted a recorded interview with the appellant, who again admitted to there being heroin on the premises and admitted it was hers. She refused the respondent…

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 Henderson v Billing

Details

AGLC: Henderson v Billing [2015] ACTSC 226
Case: [2015] ACTSC 226
Decision Date: 18 August 2015

CaseChat Overview and Summary

In the case of Henderson v Billing, the defendant, Henderson, appealed against a decision to admit evidence obtained during a search of his premises, which was conducted without a valid search warrant. The matter was heard in the Court of Appeal. The primary issue before the court was whether the search warrant, which was issued by a magistrate and a police officer but not in substantially the same form, was valid and authorised under section 188 of the Drugs of Dependence Act 1989 (ACT). A secondary issue was whether evidence obtained during the unlawful search should be admitted under section 138 of the Evidence Act 2011 (ACT).

The court found that the search warrant was not properly issued, as it did not comply with the requirements of sections 194 and 205 of the Crimes Act 1900 (ACT). The court held that the phrase "order of the court" in section 188 of the Drugs of Dependence Act 1989 (ACT) meant that the warrant must be issued by a single judicial officer in the same form. As the warrant in this case was not issued in substantially the same form by both the magistrate and the police officer, it was not authorised by the statute. The court then considered whether the evidence obtained during the unlawful search should be admitted. The court applied the test in section 138 of the Evidence Act 2011 (ACT) and held that the evidence should be admitted, as the admission of the evidence would not bring the administration of justice into disrepute.

The appeal was dismissed, and the decision of the lower court to admit the evidence obtained during the unlawful search was upheld.

Orders

Orders of the court

The appeal is 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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