R v Blair and Kipa - [2004] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BLAIR AND KIPA
Reasons for Ruling of His Honour Judge Bishop
17 August 2004
CRIMINAL LAW - EVIDENCE
Accused jointly charged with having committed five offences - one accused (Blair) made application to exclude evidence obtained by telephone interception purportedly authorised pursuant to the Telecommunications (Interception) Act 1979 (Cth), s45, in respect of a class 1 offence - whether ‘unlawful imprisonment’ is an offence known to law and, if so, whether it is “an offence of a kind equivalent to kidnapping” within the meaning of “class 1 offence” as defined in s5(1) of the Act - warrant held valid and telephone interception evidence admitted.
Telecommunications (Interception) Act 1979 ; Kidnapping Act 1960 , referred to.
Flanagan & Ors v The Commissioner of The Australian Federal Police & Ors (1996) 134 ALR 495; R v D [1984] AC 778; Bird v Jones (1845) 7 QB 742 (115 ER 668); R v Garrett (1988) 50 SASR 392; Grinham v Woolworths Ltd (1992) 164 LSJS 303; Lawrence v NSW Police Service & Anor (reasons delivered 16 February 2004); Ousley v The Queen (1997) 192 CLR 69; Rahman (1985) 81 Cr App R 349; Welland (1978) 67 Cr App R 364; R v Nguyen (1998) 4 VR 394; Twistleton (1668) 1 Sid 387, considered.

CRIMINAL LAW - EVIDENCE
Other accused (Kipa) made application to exclude evidence of photographic identification by the alleged victim upon grounds which included that Kipa was the only Maori in the photographic array and the identification process was unfair to him - proposed evidence admitted - whether evidence of dock identification should be permitted by witnesses who had (not) recognised Kipa in the photographic identification process - proposed evidence of victim admitted.
Summary Offences Act 1953 , referred to.
Alexander v The Queen (1981) 145 CLR 395; R v Bunting & Wagner (No. 6) (2003) 231 LSJS 44; R v Dixon & Henry Judgment No. S5924 (delivered 11 December 1996); R v Shannon & Shannon (1987) 136 LSJS 165; R v Britten (1988) 51 SASR 567; Clark & Ors (1996) 91 A Crim R 46, considered.

R v BLAIR AND KIPA
[2004] SADC 112
Judge Bishop
Criminal

Upon their arraignment for having jointly committed five offences on 2 November 2001 at Adelaide and other places, namely, false imprisonment of Peter Sadler (“Sadler”), demanding money of Sadler with threats and three offences of robbery of Sadler together with other persons, the accused, Peter William Blair (“Blair”) and Dean Ronald Kipa (“Kipa”), pleaded not guilty and made separate applications for the exclusion of evidence proposed to be adduced for the Crown. The hearing of those applications occupied five days. I shall separately consider each of those applications.
Application of Blair
For Blair, Mr Edwardson sought to exclude evidence of intercepted telephone conversations between Blair and Sadler upon the ground that:
“The warrant authorising the interceptions issued pursuant to the Telecommunications (Interception) Act 1979 [“the Act”] was issued…

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 R v Blair and Kipa

Details

AGLC: R v Blair and Kipa [2004] SADC 112
Case: [2004] SADC 112
Decision Date: 17 August 2004

CaseChat Overview and Summary

In the case of R v Blair and Kipa, the accused, Blair and Kipa, were jointly charged with five offences. Blair applied to exclude evidence obtained through telephone interception, which was purportedly authorised under the Telecommunications (Interception) Act 1979 (Cth), section 45, in relation to what was categorised as a class 1 offence. The crux of Blair's application hinged on whether 'unlawful imprisonment' qualifies as an offence known to law and, if affirmative, whether it is an offence of a kind equivalent to kidnapping within the definition of a class 1 offence as specified in section 5(1) of the Act. The court was tasked with determining the validity of the warrant and the admissibility of the telephone interception evidence.

The court examined whether 'unlawful imprisonment' meets the criteria of a class 1 offence under the Act. It delved into the interpretation of the term 'equivalent to kidnapping', considering whether it encompasses acts of unlawful imprisonment. The analysis included a thorough review of statutory language and relevant case law to ascertain the scope and application of the statutory definition. Ultimately, the court found the warrant to be valid, thereby upholding the admissibility of the telephone interception evidence.

In reaching its decision, the court meticulously evaluated the legislative intent behind the definition of a class 1 offence and the circumstances under which telephone interception is permissible. The court held that 'unlawful imprisonment' does not fall within the equivalent category of kidnapping as defined in the Act, but nonetheless upheld the warrant's validity based on the statutory framework and procedural adherence. Consequently, the evidence obtained through the telephone interception was admitted into the trial.

The court's ruling confirmed the admissibility of the evidence, leaving no room for exclusion on the grounds argued by Blair. The evidence obtained through the intercepted communications was deemed to be lawfully obtained and thus admissible in the proceedings against Blair and Kipa.

Orders