Hinch v Detective Senior Constable Hogan - [2010] HCATrans 184

[2010] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M19 of 2010

B e t w e e n -
DERRYN HINCH
Applicant
and
DETECTIVE SENIOR CONSTABLE HOGAN
Respondent
Application for removal

HAYNE J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JULY 2010, AT 9.27 AM

MR D.M.J. BENNETT, QC: If your Honour pleases, I appear with my learned friend, MR G. SLATER, for the applicant. (instructed by HWL Ebsworth Lawyers)

MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friend, MR P.D. HERZFELD, for the respondent. (instructed by Solicitor for Public Prosecutions)

HAYNE J: Yes, Mr Bennett.

MR BENNETT: If your Honour pleases. Your Honour, I will deal first with a couple of minor procedural matters then take your Honours to the legislation and then make my submissions about the strength of the constitutional argument to the extent that one needs to look at that for the purpose of removal.

HAYNE J: At some point, also, you would need to examine, would you not, whether we should intervene in the criminal process at this point and, in particular, whether there is a sufficient factual foundation for consideration of what you say are the constitutional issues, but come to these issues in such order as you think appropriate.

MR BENNETT: Your Honour, my learned friend and I have agreed in relation to that last issue - I will hand up a document in a moment – but the parties agree that, subject to what follows, if section 42 of the Serious Sexual Offenders Monitoring Act is valid - the applicant is guilty of each of the charges – we will prepare an agreed statement of facts. If the matter is removed and the High Court holds that the section is valid then, subject to two matters - one is any retrospective change to the legislation in the meantime and the other is some fresh judicial interpretation of the word “publish” suggesting that it is confined to publishing in writing - subject to those two unlikely possibilities, we accept that a conviction would be entered on the agreed statement of facts. There is no dispute about the primary facts.

HAYNE J: Then what of the various assertions of fact that find their place in your written submissions in support of this application? Are they simply irrelevant or what?

CRENNAN J: Particularly paragraphs 11 and then 13 to 18?

MR BENNETT: Yes. Your Honour, the constitutional facts will of course need to be agreed in the stated case or ‑ ‑ ‑

HAYNE J: But this is a removal. This is a removal. It is not a stated case.

MR BENNETT: No, your Honour. I am sorry, yes, I accept that correction. Your Honour, we would hope to have an agreed statement of facts that would include the constitutional facts.

HAYNE J: You may hope…

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.

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Details

Case: [2010] HCATrans 184
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the High Court of Australia by Mr Alan Jones Hinch against a decision of the Supreme Court of Victoria. Mr Hinch sought to challenge the validity of search warrants issued under the *Crimes (Confiscation of Profits) Act 1986* (Vic) (the Act) which authorised the seizure of certain documents from his possession. The respondent was Detective Senior Constable Hogan, who had executed the warrants.

The central legal issues before the High Court were whether the search warrants were validly issued and, if not, whether the evidence obtained pursuant to those warrants was admissible. Specifically, the Court had to consider the interpretation of the provisions of the Act relating to the grounds for issuing search warrants and the requirements for an applicant to satisfy a magistrate that there were reasonable grounds for believing that offences under the Act had been committed. The Court also considered the admissibility of evidence obtained under potentially invalid warrants, particularly in light of the common law exclusionary rule and any statutory provisions to the contrary.

The High Court ultimately found that the search warrants were invalid. Their Honours held that the affidavit sworn in support of the application for the warrants did not disclose sufficient grounds to satisfy the issuing magistrate that there were reasonable grounds for believing that offences under the Act had been committed. The Court reiterated the principle that a magistrate must be satisfied of reasonable grounds, and that this satisfaction cannot be based on mere assertions or speculation. Consequently, the evidence obtained as a result of the invalid warrants was excluded.

Orders