Police v Nicole Heuston - [2019] NSWLC 7

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: Police v Nicole Heuston [2019] NSWLC 7
Hearing dates: 12 September 2019
Date of orders: -
Decision date: 26 September 2019
Jurisdiction: Criminal
Before: Hiatt LCM
Decision:
The search warrant is invalid [43].
The evidence seized pursuant to the search warrant is excluded under section 138 of the Evidence Act 1985 [49]-[50].

Catchwords:
EVIDENCE – Discretions – Exclusion of evidence – Improperly or illegally obtained evidence – validity of search warrant – mis-description of premises to be searched – matter which affects the substance of warrant in a material particular

Legislation Cited:
Evidence Act 1995 s 138
Law Enforcement (Powers and Responsibilities) Act 2002 s 76

Cases Cited:
Carbone v National Crime Authority (1994) 52 FCR 516
Carroll v Mijovich (1991) 25 NSWLR 441
George v Rockett (1990) 170 CLR 104
Hartnett v New South Wales [1999] NSWSC 265
Ousley v The Queen (1997) 192 CLR 69
R v Adamic [2000] QSC 402; (2000) 117 A Crim R 332
R v Gassy (No 3) 2005 SASC 496
Way Out West Adult Shop P/L v Kraus [2008] NSWSC 87

Texts Cited:
-

Category: Procedural and other rulings
Parties: NSW Police (prosecution)
Nicole Heuston (defendant)
Representation:
Sergeant McAlister, NSW Police Prosecutor
Mr Konditch of Counsel for and with the defendant

File Number(s): 2019/42828
Publication restriction: Nil

Judgment

The accused, Nicole Heuston, is charged with two counts of steal property as a clerk/servant. The offences are alleged to have occurred between 9 July 2012 and 18 April 2018. Specifically the offences relate to medical supplies to the value in each case of $300, the property of Nepean Hospital when the accused was a servant to Nepean Hospital and an employee of NSW Health.
This interlocutory judgment follows a voir dire hearing of an objection taken by the defence to the admissibility of the evidence obtained consequent upon the execution of the search warrant at the accused’s premises on 18 April 2018.
The application by the defence is to have that evidence excluded under s 138 of the Evidence Act 1995 as having been improperly or unlawfully obtained. In order to determine that primary issue, it is necessary to firstly determine the collateral issue of whether the search warrant which was executed was a valid warrant authorising Police to conduct a search of the accused’s premises.

Background

On 18 April 2018 general duties Police were called to attend the premises of the accused at SGL Rd, South Penrith in respect to a matter not related to the current hearing. A crime scene was established in respect of the unrelated matter at approximately 3.20pm. The crime scene log (Exhibit 3) describes the location of the crime scene as 44A SGLRd, South Penrith. This location will become relevant later in these reasons. In response to the establishment of the crime scene general duties police had cause to contact detectives.
The crime scene log discloses that Detective S/Constable Carroll, the Officer In Charge (OIC) of the…

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 Police v Nicole Heuston

Details

AGLC: Police v Nicole Heuston [2019] NSWLC 7
Case: [2019] NSWLC 7
Decision Date: 26 September 2019

CaseChat Overview and Summary

The case before the court involved a dispute between the police and Nicole Heuston, centring on the legality of a search warrant and the evidence obtained as a result. The matter was heard and determined in the County Court of Victoria. The primary issue was whether the evidence seized by the police during the search of Ms Heuston's premises was admissible in court. The crux of the dispute was whether the search warrant was properly executed and whether it accurately described the premises to be searched. The court was required to consider the impact of any errors in the warrant on its validity and the admissibility of the evidence obtained.

The court addressed several legal issues, including the discretionary power to exclude evidence under section 138 of the Evidence Act 1985, and whether the search warrant was lawfully issued and executed. A significant aspect of the case was the alleged mis-description of the premises in the warrant, which the defence argued was material and affected the warrant's substance. The court examined the legal framework governing search warrants and the consequences of procedural errors on their validity.

In its reasoning, the court found that the search warrant contained a material error in the description of the premises, rendering it invalid. The court held that the mis-description was significant enough to impact the warrant's substance, as it could potentially lead to the search of a different location than intended. Consequently, the court exercised its discretion under section 138 of the Evidence Act 1985 to exclude the evidence obtained from the search, as it was obtained through an invalid warrant. The court concluded that the evidence must be excluded to maintain the integrity of the legal process.

The final orders of the court declared the search warrant invalid and excluded the evidence obtained pursuant to it from being used in any subsequent proceedings against Ms Heuston. This decision underscored the importance of precise and accurate descriptions in search warrants to ensure their validity and the admissibility of any evidence obtained.

Orders

Orders of the court

The search warrant is invalid [43].

The evidence seized pursuant to the search warrant is excluded under section 138 of the Evidence Act 1985 [49]-[50].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Police v Nicole Heuston [2019] NSWLC 7
Hearing dates:	12 September 2019
Date of orders:	-
Decision date:	26 September 2019
Jurisdiction:	Criminal
Before:	Hiatt LCM
Decision:	The search warrant is invalid [43]. The evidence seized pursuant to the search warrant is excluded under section 138 of the Evidence Act 1985 [49]-[50].
Catchwords:	EVIDENCE – Discretions – Exclusion of evidence – Improperly or illegally obtained evidence – validity of search warrant – mis-description of premises to be searched – matter which affects the substance of warrant in a material particular
Legislation Cited:	Evidence Act 1995 s 138 Law Enforcement (Powers and Responsibilities) Act 2002 s 76
Cases Cited:	Carbone v National Crime Authority (1994) 52 FCR 516 Carroll v Mijovich (1991) 25 NSWLR 441 George v Rockett (1990) 170 CLR 104 Hartnett v New South Wales [1999] NSWSC 265 Ousley v The Queen (1997) 192 CLR 69 R v Adamic [2000] QSC 402; (2000) 117 A Crim R 332 R v Gassy (No 3) 2005 SASC 496 Way Out West Adult Shop P/L v Kraus [2008] NSWSC 87
Texts Cited:	-
Category:	Procedural and other rulings
Parties:	NSW Police (prosecution) Nicole Heuston (defendant)
Representation:	Sergeant McAlister, NSW Police Prosecutor Mr Konditch of Counsel for and with the defendant
File Number(s):	2019/42828
Publication restriction:	Nil