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R v Gallagher

R v Gallagher

Case [2015] NSWCCA 228 26 August 2015

Appeal

Admissibility of Evidence

Trespass

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Gallagher; R v Burridge [2015] NSWCCA 228
Hearing dates: 10 August 2015
Date of orders: 26 August 2015
Decision date: 26 August 2015
Before: Gleeson JA   at [1]
Adams J   at [2]
Beech-Jones J   at [3]
Decision:
(1)   The appeal be allowed;

(2)   The ruling of Jeffreys DCJ made on 17 December 2014 be set aside; and
(3)   Subject to considering any further objection to the admissibility of any admissions made by either of the Respondents, the evidence obtained during and as a result of the execution of the search warrants on 185 and 187 Stuart Road, Lawrence on 6 March 2012 be admitted at the trial of the Respondents.
Catchwords: APPEAL – appeal by DPP under s 5F(3A) against evidentiary ruling – primary judge excluded evidence of search of property that located cannabis plantation – Evidence Act, s 138 – primary judge found that information that led to search warrant was obtained as a result of a trespass by police officer – ruling excluded entirety of Crown case – scope of implied licence for persons to enter upon premises – whether police officer authorised to traverse property in exercise of “crime scene” powers – primary judge found contravention of law involved substantial gravity – primary judge found police officer acted recklessly – primary judge held balancing of factors in s 138(1) warranted rejection of evidence.
HELD: in locating irrigation pipe leading to cannabis plantation police officer acting outside scope of any implied licence – police officer not exercising crime scene powers as did not form state of mind necessary for their exercise- challenge to finding of unlawful trespass by police officer rejected – challenge to exercise of discretion upheld – no basis for finding police officer acted recklessly – not open to find contravention involved substantial gravity – evidence admitted.
Legislation Cited: - Criminal Appeal Act 1912 – s 5F(3A)
- Drug Misuse and Trafficking Act 1985 – s 25(1)
- Evidence Act 1995 – s 138(1)
- Firearms Act 1996 – s 7A(1), s 19
- Law Enforcement (Powers and Responsibilities) Act 2002 – s 5F(3A), s 47(1), s 88
Cases Cited: - Australian Securities & Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327
- Bunning v Cross [1978] HCA 22; 141 CLR 54
- Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 219 A Crim R 344
- Dowse v State of New South Wales [2012] NSWCA 337
- Fleming v The Queen [2009] NSWCCA 233; 197 A Crim R 282
- Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
- Halliday v Nevill [1984] HCA 80; 155 CLR 1
- House v The King [1936] HCA 40; 55 CLR 499
- O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286
- Parker v Comptroller General of Customs [2007]…

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 Gallagher

Details

AGLC: R v Gallagher [2015] NSWCCA 228
Case: [2015] NSWCCA 228
Decision Date: 26 August 2015

CaseChat Overview and Summary

The appeal was brought by the Director of Public Prosecutions against the decision of a primary judge who excluded evidence obtained during a police search of a property. The search had resulted in the discovery of a cannabis plantation. The case was heard by the court of appeal, which was required to determine whether the primary judge was correct in excluding the evidence under section 138 of the Evidence Act. The key issue was whether the police officer who located the irrigation pipe leading to the plantation acted within the scope of an implied licence or was exercising crime scene powers, and if not, whether the evidence should be excluded under the balancing test of section 138(1) of the Evidence Act.

The court of appeal found that the police officer did not have an implied licence to enter the property and was not exercising crime scene powers as the necessary state of mind for such powers had not been formed. The court rejected the argument that the primary judge's finding of unlawful trespass by the police officer was incorrect and that the officer acted recklessly. The court held that there was no basis to find that the contravention involved substantial gravity. As a result, the balancing of factors under section 138(1) of the Evidence Act warranted the admission of the evidence.

The court of appeal allowed the appeal, quashed the conviction, and ordered a retrial. The evidence obtained during the search of the property, including the discovery of the cannabis plantation, was to be admitted at the retrial. The court held that the primary judge had erred in excluding the evidence, and the balancing test under section 138(1) of the Evidence Act did not warrant its exclusion.

Orders