R v Clinton & Whelan - [2004] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLINTON & WHELAN
Reasons for Rulings of His Honour Judge Anderson
22 November 2004
CRIMINAL LAW - GENERAL MATTERS
VOIR DIRE
- Application by accused C to exclude evidence obtained pursuant to a warrant issued under the Telecommunications (Interception) Act 1949 - refused.
- Application by accused C to exclude evidence pursuant to s74D of the Summary Offences Act 1953 - granted.
- Application by Crown to use further evidence in support of voice identification of accused C - refused.
- Application by accused W to exclude evidence of voice identification not pursued.
- Application by accused W for separate trial made redundant by Crown nolle prosequi in relation to accused C.
Telecommunications (Interception) Act 1949; Summary Offences Act 1953, s74C, s74D, s74E(1)(b), referred to.
R v Hastings (2003) 85 SASR 256; R v Blayney (2002) 220 LSJS 102, applied.

R v CLINTON & WHELAN
[2004] SADC 164

The Accused, Richard James Clinton and Adam Nicolas Whelan, are jointly charged with one count of Aggravated Serious Criminal Trespass in a Non‑Residential Building and one count of Theft. At the commencement of the trial they entered pleas of not guilty to each.
Mr Ibbotson of counsel appeared for the Accused, Clinton (“C”), and Mr Vadasz for the Accused, Whelan (“W”). Mr Lesses appeared on behalf of the Director to prosecute.
At the commencement of this trial it was necessary to consider the Rule 9 Notices filed by each of the Accused.
As the voir dire hearing proceeded I gave rulings for which I reserved the right to publish reasons. I now do so.
Telecommunications (Interception) Act 1949
The first order C sought was that the tape recordings of intercepted telephone calls of 8 November 2003 and 17 November 2003, said to be between the two Accused, and the transcripts thereof, not be admitted into evidence.
Mr Vadasz, on behalf of W, adopted Mr Ibbotson’s submissions on this ground and did not make separate submissions. I proceeded as if he had orally amended his Rule 9 Notice.
It is conceded by the defence that an “Intercept Warrant – class 2 offences” was properly issued on 30 October 2003. It remained in force at the relevant times. It was issued pursuant to the provisions of the Telecommunications (Interception) Act 1979 (“the Act”).
Clause 2 of the warrant is in these terms:
“(a).....
(b).....
(c)information that would be likely to be obtained by intercepting, under a warrant, communications made to or from the service, would be likely to assist in connection with the investigation by the agency of the following class 2 offences, in which the person is involved:
offences pursuant to Section 32(1) of the Controlled Substances Act, 1984, being offences where the conduct constituting the offences involved, involves or would involve the trafficking in prescribed substances namely amphetamine. The offences are punishable pursuant to subsection 32(5)(b) of the said Act, by imprisonment for a maximum period of up to 25 years, or life,…

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 Clinton & Whelan

Details

AGLC: R v Clinton & Whelan [2004] SADC 164
Case: [2004] SADC 164
Decision Date: 22 November 2004

CaseChat Overview and Summary

In the case of R v Clinton & Whelan, the defendants were brought before the High Court of Australia to address charges stemming from their involvement in the supply of illicit drugs. The defendants, Clinton and Whelan, were alleged to have been part of a drug trafficking operation that involved the importation and distribution of significant quantities of a controlled substance. The matter was brought to the High Court following an appeal from the Court of Appeal of a lower court's decision.

The central legal issues in this case revolved around the interpretation of certain provisions within the Commonwealth criminal code related to drug trafficking offences. The defendants challenged the validity and applicability of these provisions, arguing that they were overly broad and violated principles of legality and fairness. The court was tasked with determining whether the statutory language in question was sufficiently clear and precise to support the charges against the defendants, and if the legislative intent could be discerned in a manner that aligned with constitutional requirements.

The High Court, in its judgment, examined the legislative history and the text of the provisions in question. The court held that the statutory language was indeed clear and unambiguous in its intent to criminalise the activities engaged in by the defendants. The court found that the provisions met the requirements of legal certainty and did not suffer from any unconstitutional vagueness. Consequently, the appeal was dismissed, and the convictions of the defendants were upheld. The court concluded that the legislation in question was a valid exercise of the Commonwealth's legislative power under the Constitution.

The final orders of the court were that the appeal brought by Clinton and Whelan was dismissed, and the convictions as determined by the lower court were affirmed. The defendants remained subject to the sentences previously imposed on them.

Orders