R v Borg - [2012] VSC 26

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 99 of 2011

THE QUEEN

LEONARD BORG

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2012
DATE OF RULING:	6 February 2012
CASE MAY BE CITED AS:	R v Borg
MEDIUM NEUTRAL CITATION:	[2012] VSC 26

---

CRIMINAL LAW – Pre-trial ruling – Search warrants – Section 465 Crimes Act1958 – Magistrates’ Court Act 1989– Evidence Act 2008 – Evidence (Consequential Provisions) Act 2009 – Evidence (Miscellaneous Provisions) Act 1958 – Affidavits of investigators not sworn in accordance with requirements – Evidence obtained in contravention of an Australian law – Section 138 Evidence Act 2008 – “Probative Value” – Discretion exercised in favour of admission of the evidence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Tom Gyorffy SC Mr Mark Gibson Ms Raelene Sharp	Office of Public Prosecutions
For the Accused	Ms Carmen Randazzo SC Ms Samantha Poulter	Theo Magazis & Associates

HIS HONOUR:

Leonard Borg is charged with the murder of Peter Rule. The Crown case is that the accused murdered Rule on 15 November 2009 at Campbellfield. The accused has been arraigned and pleaded not guilty, and senior counsel for the accused has indicated that the accused will deny any involvement in the death of the deceased.

A number of pre-trial issues have arisen. The first of them concerns the admissibility of certain evidence obtained pursuant to the execution of several search warrants issued by Magistrates pursuant to s 465 of the Crimes Act 1958. This issue particularly concerns the completion of affidavits offered to Magistrates by two Homicide Squad investigators in support of the issue of those search warrants. This issue only arose in this case because of certain disclosures by police to the Office of Public Prosecutions and, in turn, disclosure to counsel for the accused. I will return to the significance of that disclosure later in this ruling.

On 11 November 2011, the Victorian Court of Appeal delivered judgement in the matter of DPP v Marijancevic & Ors.[1] As is now well known, that judgment concerned an interlocutory appeal by the Director of Public Prosecutions in relation to a ruling by Judge Montgomery in the County Court. During the pre-trial hearing in the County Court, it emerged that certain affidavits of police in support of warrants under s 81 of the Drugs Poisons and Controlled Substances Act 1981 had not been sworn. Instead, they had been signed without any oath or affirmation being taken. At the conclusion of the pre-trial hearing before Judge Montgomery, his Honour ruled that as a result of relevant affidavits not having been sworn, the evidence obtained pursuant to the issued warrants was evidence that was obtained illegally and, he concluded, should be excluded in the exercise of his discretion pursuant to s 138 of the Evidence Act 2008 (“Evidence Act”). In an interlocutory appeal by the Director of Public Prosecutions, the Court of Appeal granted leave…

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 Borg

Details

AGLC: R v Borg [2012] VSC 26
Case: [2012] VSC 26
Decision Date: 6 February 2012

CaseChat Overview and Summary

The case of R v Borg involved a dispute over the admissibility of evidence obtained through a search warrant, in contravention of certain legal requirements. The matter was heard in the Magistrates’ Court of Victoria. The central issue was whether the evidence obtained during the search could be admitted despite the procedural irregularities.

The court needed to determine whether the affidavits submitted by the investigators were compliant with the necessary statutory requirements, specifically under the Evidence Act 2008 and the Evidence (Miscellaneous Provisions) Act 1958. It was also necessary to decide if the evidence obtained was to be excluded under section 138 of the Evidence Act 2008 due to being obtained in contravention of an Australian law, and if the probative value of the evidence outweighed any prejudice that might result from its admission.

In reaching its decision, the court examined the statutory framework and determined that although the affidavits were not sworn in accordance with the statutory requirements, the evidence obtained was admissible. The court found that the probative value of the evidence was substantial, and that any prejudice caused by the procedural irregularities was not so significant as to warrant exclusion. Consequently, the discretion under section 138 was exercised in favour of admitting the evidence.

Orders