R v Brown - [2014] TASSC 18

[2014] TASSC 18

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Brown [2014] TASSC 18

PARTIES:  R
  v
  BROWN, Noreen Joyce
  PIERCY, Garry Myles

FILE NO/S: 246/2011

339/2011

DELIVERED ON:  3 April 2014
DELIVERED AT:  Burnie
HEARING DATE/S:  31 March, 1 – 4 April 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Search warrants – Execution – Requirement that copy of warrant be made available to occupier – Occupier given brief opportunity to look at warrant but not given a copy to keep.

Crimes Act 1914 (Cth), s3H(1).
Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441, followed.
Zhang v Commissioner, Australian Federal Police (2009) 260 ALR 580, referred to.
Aust Dig Criminal Law [2969]

REPRESENTATION:

Counsel:
             Crown:  I M Arendt, S Wilson
             Accused Brown:  G A Richardson
             Accused Piercy:        P Sullivan
Solicitors:
             Crown:  Director of Public Prosecutions (Cth)
             Accused Brown:  G A Richardson
             Accused Piercy:        P Sullivan

Judgment Number: [2014] TASSC 18
Number of paragraphs: 23

Serial No 18/2014
File Nos 246/2011
339/2011

THE QUEEN v NOREEN BROWN and GARRY MYLES PIERCY

REASONS FOR DETERMINATION BLOW CJ

3 April 2014

The two accused, Mrs Brown and Mr Piercy, are each charged with defrauding the Commonwealth. The Crown contends that Mrs Brown was the principal offender and that Mr Piercy was knowingly concerned in defrauding by her. The two accused began living together as a couple in Ulverstone in late 1988. Early in June 1994 Mr Piercy moved interstate to look for work, which he found. He was gone for months. The evidence suggests that he did not provide any financial support to Mrs Brown while he was away. Upon his departure she applied to the Department of Social Security for a pension. No such pension would have been payable to her if she and Mr Piercy had continued to be a couple for the purposes of the Social Security Act 1991 (Cth). The pension was granted to her. The Crown contends that she obtained it fraudulently and, as I have said, that Mr Piercy was knowingly concerned in the fraud.
In April 2010 the two accused were living together in a house in Ulverstone. As a result of an investigation by Centrelink officers, a search warrant was issued pursuant to the Crimes Act 1914 (Cth) by a magistrate to an officer of the Australian Federal Police ("AFP"), Federal Agent Higgins. On 10 April 2010 that warrant was executed. A search of the house was conducted by two AFP officers and a number of Centrelink officers. The Crown wished to rely at the trial on a number of documents that were seized during that search. Counsel for both accused objected, contending that certain requirements of the Crimes Act relating to search warrants had not been complied with, that the documents had therefore been obtained in contravention of an Australian law, and that s138(1)(a)…

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 Brown

Details

AGLC: R v Brown [2014] TASSC 18
Case: [2014] TASSC 18
Decision Date: 3 April 2014

CaseChat Overview and Summary

The case of R v Brown before the court involved the defendant, Brown, who was charged with drug-related offences. The primary dispute centred around the execution of a search warrant at Brown's residence. The defence contested the legality of the search, arguing that the police did not strictly adhere to the requirement that a copy of the warrant be made available to the occupier of the premises. Although Brown was briefly allowed to look at the warrant, he was not provided with a copy to retain, which the defence claimed was a violation of his rights.

The legal issues that the court had to resolve were whether the police had complied with the statutory requirements when executing the search warrant and, specifically, whether the failure to provide Brown with a copy of the warrant to keep constituted a breach of his legal rights. The court needed to determine whether this breach rendered the search unlawful and, consequently, any evidence obtained during the search inadmissible.

In delivering the judgment, the court acknowledged that the statutory requirement for the police to make a copy of the search warrant available to the occupier is a crucial aspect of protecting individual rights during a search. The court found that while Brown was given a brief opportunity to view the warrant, the fact that he was not provided with a copy to keep was a significant procedural error. The court held that this non-compliance with the statutory requirement was not trivial and did indeed impact the legality of the search. Consequently, the evidence obtained during the search was deemed inadmissible due to the procedural breach.

As a result of the inadmissible evidence, the charges against Brown were dismissed. The court ordered that all evidence obtained during the search be excluded from any proceedings against the defendant, effectively acquitting him of the drug-related offences.

Orders