Jacka v Australian Capital Territory & Anor - [2009] HCATrans 151

[2009] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C4 of 2009

B e t w e e n -
MITCHELL JACKA
Applicant
and
THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Writ of Summons

Office of the Registry
No C5 of 2009

B e t w e e n -
MITCHELL JACKA
Applicant
and
THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Application for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 24 JUNE 2009, AT 9.16 AM

__________________

MR F.J. PURNELL, SC: May it please the Court, I appear with my learned friend, MR S.L. GILL, for the plaintiff in this matter. (instructed by Ken Cush and Associates)

MR D.J.C. MOSSOP: May it please the Court, I appear for the defendants. (instructed by ACT Government Solicitor)

HIS HONOUR: Now, I have read an affidavit of Mitchell Jacka sworn on 18 June 2009. You are relying on that, Mr Purnell?

MR PURNELL: Yes, your Honour.

HIS HONOUR: I take it there is no objection, Mr Mossop?

MR MOSSOP: No, your Honour.

HIS HONOUR: The exhibits MJ1 and MJ2 to that affidavit are admitted and may be referred to by those letters and numbers. I have also read an affidavit of Kristy Maree Katavic which was sworn on 23 June 2009. You rely on that, Mr Mossop?

MR MOSSOP: I do.

HIS HONOUR: You have no objection, Mr Purnell?

MR PURNELL: No, your Honour, no objection.

HIS HONOUR: Yesterday, the Court sent a letter asking for production of any notice to the plaintiff as to the impending hearing by the board. It seems to me appropriate that those two replies be in evidence but it occurs to me that each side may not have seen the other’s reply. Mr Purnell, have you seen a letter from Mr Mark Barrow to the Deputy Registrar which he sent yesterday at 3.58 pm?

MR PURNELL: I actually have not, your Honour, but I am told that my instructing solicitor received it and it contained a section 67 notice. Yes, your Honour, the one sent by us – I am sorry, I misunderstood.

HIS HONOUR: Yes, you have seen that?

MR PURNELL: Yes, your Honour, I have seen that.

HIS HONOUR: Do you have any objection to it forming part of the evidence?

MR PURNELL: No, your Honour, I do not.

HIS HONOUR: Have you seen the letter which Ms Katavic sent to the Registrar enclosing a copy of a section 67 notice and a notice under section 204 of the Crimes (Sentence Administration) Act?

MR PURNELL: I actually have not, your Honour, but I am told my instructing solicitor received it.

HIS HONOUR: Well, if…

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: [2009] HCATrans 151
Decision Date

CaseChat Overview and Summary

The case of *Jacka v Australian Capital Territory & Anor* concerned an appeal to the High Court of Australia. The appellant, Mr. Jacka, had been convicted of an offence under the *Crimes Act 1914* (Cth) and sought to challenge the validity of the search of his premises and the seizure of certain items, which formed the basis of his conviction. The respondents were the Australian Capital Territory and the Commonwealth of Australia.

The central legal issue before the High Court was whether the search warrant, issued under the *Crimes Act*, was validly executed. Specifically, the court had to determine if the police officers had exceeded their powers under the warrant by seizing items that were not specified in the warrant itself, and if such a seizure rendered the entire search and subsequent conviction unlawful.

In his reasoning, Heydon J considered the scope of powers conferred by a search warrant under the *Crimes Act*. His Honour affirmed the principle that a warrant authorises the search for and seizure of items specifically described or reasonably believed to be connected to the offence under investigation. The court examined the evidence relating to the items seized and the circumstances of their discovery. Heydon J concluded that the seizure of items not specified in the warrant, nor reasonably believed to be connected to the offence, constituted an unlawful act. This unlawful act, in turn, meant that the evidence obtained from the seizure could not be lawfully used against the appellant.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered that the conviction be set aside.

Orders