R v DM

[2014] ACTSC 377

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v DM

Citation:

[2014] ACTSC 377                

HearingDate:

11 March 2014

DecisionDate:

12 March 2014

Before:

Penfold J

Decision:

The application to exclude evidence is dismissed.

Catchwords:

CRIMINAL LAW – Evidence – discretion to exclude evidence obtained improperly – forensic officer collected evidence from scene of fire not considered suspicious – no search warrant sought before suspicions arose – police investigation subsequently begun – powers of fire investigator to remove items from scene – no impropriety established – evidence admitted.

Legislation Cited:

Emergencies Act 2004 (ACT), ss 101(e), 101(g), 112(1)(a), 112(1)(c)

Evidence Act 2011 (ACT), ss 138, 138(1)

Parties:

The Queen (Crown)

DM (Accused)

Representation:

Counsel

Ms A Knibbs (Crown)

Ms A Tonkin (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 53 of 2013

Introduction

1. DM has been charged with one count of arson and two related counts of, in general terms, insurance fraud.  Those charges arise out of a fire at the ACT Housing property rented by DM, which I will refer to as "the house", and a subsequent claim made by her under a contents insurance policy.

The evidence in question

1. Central to the case against DM are the following pieces of evidence (referred to as the seized items): 

(a)three bottles that had contained methylated spirits, which were found effectively empty in her recycling bin on the afternoon of the fire; and

(b)an apparently new tarpaulin also found on the afternoon of the fire in a shed in the backyard of the house (the tarpaulin was covering a pile of items said to be of personal or sentimental value). 

1. Those items were seized by an Australian Federal Police (AFP) Forensics Officer who went to the premises on the afternoon of the fire.  The bottles and a small amount of liquid found in two of them were subjected to forensic testing, which produced results linking DM with those items.

Application for exclusion of evidence

1. DM seeks the exclusion from the trial of:

(a)the seized items;

(b)forensic evidence obtained from those items; and

(c)evidence of those parts of the taped record of interview with DM, and the taped record of the execution of the search warrant, that related to those items or to the forensic evidence. 

1. The application is based on s 138 of the Evidence Act 2011 (ACT). Counsel for DM says that the evidence was obtained improperly and should be excluded in the exercise of the discretion provided for under s 138(1).

1. The claim that the evidence was obtained improperly is based on events at the house after the fire was reported.  It is necessary to outline those events, to the extent that they can be extracted from the evidence put before me on the application.  That evidence indicates the following chronology for events at DM's house:

(a)A fire at the house was notified to the ACT Fire Brigade at 12.39 pm on 16 July 2012 and to…