R v Briese and Grace - [2017] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRIESE AND GRACE
[2017] SADC 64
Reasons for Ruling of His Honour Judge Tilmouth
23 June 2017
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: IMPROPERLY OBTAINED EVIDENCE
Consideration and discussion of the admissibility of telephone intercepts data under the Telecommunications Act (Interception and Access) Act 1979 (Cth).
Telecommunications (Interception and Access) Act 1979 (Cth) s 5B, s 7(1), s 7(2)(b), s 46A(1), s 46(2), s 46(3), s 49, s 74, s 75, s 77, s 172, s 177, s 178, s 180(1), s 180(2); Controlled Substances Act 1984 (SA) s 32(2); Telecommunications Act 1997 (Cth) s 276, s 277, s 278; R v Doolan [2016] SASCFC 111; Ousley v The Queen (1997) 192 CLR 69; R v Doolan [2016] SASCFC 111; Geldert v Western Australia (2012) 226 A Crim R 260; R v Scarpantoni (2013) 118 SASR 131, referred to.
R v Rich, Unreported Court of Appeal Victoria (No 265 of 1995) 17 December 1997, applied.

R v BRIESE AND GRACE
[2017] SADC 64
Applications for exclusion of intercept evidence

Both accused apply for the exclusion of evidence obtained in the course of telephone intercept material in this matter obtained by SAPOL pursuant to warrants F14094-01 and F14094-00, F14089-00, and F14083-00.
The first ground calling for resolution is that as the warrants disclose an irregularity on their face they are therefore invalid, and secondly that the collection of un-associated call data, fell outside the scope of the warrants and thus were illegally obtained. The warrants pertain to calls between Mr Briese and Mr Kola the applicants, intercepted by South Australian Police (SAPOL).
The subject warrants were issued pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (the I and A Act). All parties accept that this legislation covers the field and so applies to State courts exercising State jurisdiction. Section 7(1) of the I and A Act, erects a prohibition on the interception of telecommunications, and a contravention constitutes a criminal offence. Section 7(2)(b) however provides that s 7(1) does not apply to ‘interception of a communication under a warrant’. Section 46A(1) of the I and A Act permits the issue of a ‘named person warrant’ in respect of identified person as apposed for instance to a particular telephone number. The agency to whom it is issued becomes thereby authorised to require the carrier concerned to intercept communications made to or from any service the named person uses. The warrants in this instance were issued to SAPOL by several members of the Commonwealth Administrative Appeals Tribunal, they being authorised ‘nominated AAT Members’ within the meaning of the I and A Act.
Those warrants are in the prescribed Form 3 under the Regulations, as required by s 49(1). Section 74 provides that such interceptions are admissible in ‘exempt proceedings’ of which the case is one: S5B. The Form provided for in the Regulations entitled ‘Named person warrant - telecommunications services’, provides for (amongst other things)…

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 Briese and Grace

Details

AGLC: R v Briese and Grace [2017] SADC 64
Case: [2017] SADC 64
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the case of R v Briese and Grace, the respondents were charged with various offences including drug supply and trafficking. The dispute before the court was whether certain evidence obtained during a police raid should be excluded due to its improper procurement. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the evidence gathered during the raid should be excluded from the trial as it was obtained in a manner that infringed upon the respondents' rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Specifically, the court had to consider whether the police acted with the necessary warrants and whether the respondents' privacy rights were violated. The respondents argued that the evidence should be excluded because it was obtained through an unlawful search and seizure.

The court found that the evidence in question was indeed obtained in breach of the respondents' rights under the Charter, as the police conducted the search without the requisite warrant. The court held that the respondents' right to privacy and protection from unreasonable search and seizure had been infringed. Consequently, the evidence obtained during the raid was deemed inadmissible. The court also noted that the exclusion of the evidence was necessary to uphold the integrity of the legal process and to deter future breaches of the Charter.

The court ordered that the evidence obtained during the unlawful raid be excluded from the trial against the respondents. This ruling underscores the importance of respecting constitutional rights and the necessity for law enforcement to adhere to legal procedures when gathering evidence.

Orders