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R v Gary Shane Austin (No 2)

R v Gary Shane Austin (No 2)

Case [2010] ACTSC 136 5 November 2010

Search Warrants

Admissibility of Evidence

Exigent Circumstances

Criminal Law

Type to search within this case.

HUMAN RIGHTS ACT

R v GARY SHANE AUSTIN (NO 2)
[2010] ACTSC 136 (5 NOVEMBER 2010)

PRACTICE AND PROCEDURE – proper certification of affidavits relied upon by a represented party.

CRIMINAL LAW – search warrants – warrant authorising search of residential premises.

CRIMINAL LAW - nature and extent of search under the warrant – power of police under the search warrant to: use forcible entry without warning or announcement, search the residence, search any person on the residence and seize items not specified in the search warrant.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) - application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant - “exigent circumstances” unclear meaning in Australian law – “exigent circumstances” found to permit entry to premises to execute search warrant without prior announcement – application dismissed.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) - application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant - “exigent circumstances” exception includes the need to ensure evidence in the contemplation of the search warrant is not destroyed – application dismissed.

Crimes Act 1900 (ACT), Div 10.3
Criminal Code 2002 (ACT), ss 603(5) 603(7)
Drugs of Dependence Act 1989 (ACT), ss 187, 187(2), 187(7)
Evidence Act 1995 (Cth), s 138
Human Rights Act 2004 (ACT), ss 12, 28

R v Collins [1987] 1 SCR 265
Funke v France (1993) 16 EHRR 297
McLeod v United Kingdom (1999) 27 EHRR 493
Camenzind v Switzerland (1999) 28 EHRR 458
George v Rockett (1990) 170 CLR 104
R v Austin [2010] ACTSC 47
Rogers v Moore & Ors (1992) 39 FCR 201
Rogers v Moore & Ors (1993) 41 FCR 301
Jacobsen v Rogers (1995) 182 CLR 572
Coco v The Queen (1994) 179 CLR 427
Crowley v Murphy (1981) 52 FLR 123
Semayne’s Case (1604) 5 Co Rep 91; 77 ER 194
Entick v Carrington & Ors (1765) 2 Wils KB 275; 95 ER 807
Feather v Rogers (1909) 9 SR(NSW) 192
Jones v German [1897] 1 QB 374
Lippl v Haines (1989) 18 NSWLR 620
Wilson v Arkansas 514 US 927 (1995)
R v Cornell [2010] SCC 31
Richards v Wisconsin 520 US 385 (1997)
Scott v CAL No 14 Pty Ltd & Ors (2007) 17 Tas R 72
Carrick v J (1989) 39 A Crim R 233
Marshall v Watt [1953] Tas SR 1
O’Neill (2001) 122 A Crim R 510
Director of Public Prosecutions (NSW) v Nassif (2002) 135 A Crim R 391
Eccles v Bourque (1974) 50 DLR (3d) 753
Halliday v Nevill (1984) 155 CLR 1
Swales v Cox (1981) 72 Cr App R 171
R v Cant (2001) 138 NTR 1
King v The Queen [1969] 1 AC 304
Crowley v Murphy (1981) 34 ALR 496
Simpson v Attorney-General

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 Gary Shane Austin (No 2)

Details

AGLC: R v Gary Shane Austin (No 2) [2010] ACTSC 136
Case: [2010] ACTSC 136
Decision Date: 5 NOVEMBER 2010

CaseChat Overview and Summary

The case of R v Gary Shane Austin (No 2) involved a dispute regarding the admissibility of evidence collected during a search of the defendant's residential premises. The defendant, represented by counsel, sought to exclude the evidence on the grounds that the search warrant was improperly executed and that items not specified in the warrant were seized. The matter was heard in a court of law, which was tasked with determining the validity of the search and the admissibility of the evidence gathered.

The court was required to address several legal issues, including whether the police had the authority to use forcible entry without prior warning or announcement, to search the residence, to search any person on the premises, and to seize items not specified in the search warrant. Additionally, the court had to interpret the term "exigent circumstances" as it applied to the execution of the search warrant, and whether such circumstances justified the police actions. The court also had to consider whether the "exigent circumstances" exception included the need to prevent the destruction of evidence.

In its reasoning, the court found that the term "exigent circumstances" could permit entry to the premises to execute a search warrant without prior announcement. The court determined that this exception also encompassed the need to prevent the destruction of evidence that was within the contemplation of the search warrant. As a result, the court held that the search was properly executed and the seized items were admissible. Consequently, the application to exclude the evidence was dismissed.

The court's final order was that the application to exclude the evidence collected during the execution of the search warrant be dismissed. The court found that the police had acted within the bounds of the law and that the evidence was admissible in the trial against Gary Shane Austin.

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Gary Shane Austin (No 2) [2010] ACTSC 136

Most Recent Citation

Brooke v Turnbull [2018] ACTMC 15

Cases citing this decision · 1 of 1 shown

Brooke v Turnbull
[2018] ACTMC 15 Para 1

…The prosecution referred to the decision in R v Austin (No 2) [2010] ACTSC 136. In that decision at [51] – [57], Refshauge J referred to a number of US and Canadian authorities and adopted the principle that exigent circumstances may permit entry into premises for the purpose of executing a search warrant without a…

View all 1 citing cases →

Cases cited in this decision · 28 of 28 shown

R v Cant
[2015] QSC 311 Para 1

…as holding Mr Austin’s bag after he handed it to her, the warrant authorised the police to search it without that amounting to a search of her. See R v Cant (2001) 138 NTR 1 (at 19).…
R v Gary Shane Austin
[2010] ACTSC 47 Para 1

…On 7 April 2010, Mr Austin applied for a stay of the proceedings. See R v Austin [2010] ACTSC 47. Among the grounds for the stay, Mr Austin included the manner of execution of the search warrant. I declined to grant a stay. I said (at [37]):…
Jacobsen v Rogers
[1995] HCA 6 Para 1

…appeal (but not on a relevant ground) in Rogers v Moore & Ors (1993) 41 FCR 301 but that decision on appeal was itself reversed in Jacobsen v Rogers (1995) 182 CLR 572.…
Coco v the Queen
[1994] HCA 15 Para 1

…in the question of what right police have to enter into private property are not in doubt. The law was reviewed by the High Court in Coco v The Queen (1994) 179 CLR 427 where the plurality, with whom Deane and Dawson JJ agreed, said (at 435-6):…
Rogers, P. v Moore, K.
[1993] FCA 475 Para 1

…ers v Moore & Ors (1992) 39 FCR 201 (at 217). I note that this decision was reversed on appeal (but not on a relevant ground) in Rogers v Moore & Ors (1993) 41 FCR 301 but that decision on appeal was itself reversed in Jacobsen v Rogers (1995) 182 CLR 572.…
Challenge Plastics Pty Ltd v Collector of Customs
[1993] FCA 340 Para 1

…d therefore statutorily provides for the extent of the authority to seize related items (cf Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397) and s 187(7) which authorises the seizure of items much more broadly, namely connected with the offence but not specified or, alternatively, connected with…
Haines v Lippl
[1991] NSWCA 136

…Co Rep 91; 77 ER 194 Entick v Carrington & Ors (1765) 2 Wils KB 275; 95 ER 807 Feather v Rogers (1909) 9 SR(NSW) 192 Jones v German [1897] 1 QB 374 Lippl v Haines (1989) 18 NSWLR 620 Wilson v Arkansas 514 US 927 (1995) R v Cornell [2010] SCC 31 Richards v Wisconsin 520 US 385 (1997) Scott v CAL No 14 Pty Ltd & Ors (2007…
George v Rockett
[1990] HCA 26 Para 1

…As a unanimous High Court said in George v Rockett (1990) 170 CLR 104 (at 110):…
Halliday v Nevill
[1984] HCA 80 Para 1

…Cornell (at 133-4) the exigent circumstances exception (as set out at [51] above), has been accepted as good law in this country in Halliday v Nevill (1984) 155 CLR 1 per Brennan J (at 16).…
Coward v Allen
[1984] FCA 54 Para 1

…rch intended to be conducted to discovering and seizing items not named in the warrant: Applebee (1995) 79 A Crim R 554. See, however, Coward v Allen (1984) 52 ALR 320. Thus, there must be a reasonable belief at the time of seizure that the items seized are connected with a crime: Bartlett v Weir & Ors (1994) 72 A C…
Crowley v Murphy
[1981] FCA 26 Para 1

…mon law right for any person, including police officers, to enter private property and search them without the owner’s permission: Crowley v Murphy (1981) 52 FLR 123. A constable, however, has a common law power to enter premises to arrest or otherwise execute the process of the Crown. In Semayne’s Case (1604) 5 Co…
(1604) 5 Co Rep 91
(1604) 5 Co Rep 91 Para 1

…LR 123. A constable, however, has a common law power to enter premises to arrest or otherwise execute the process of the Crown. In Semayne’s Case (1604) 5 Co Rep 91; 77 ER 194, the Court of King’s Bench resolved:…
McKee v Gratz
77 ER 194 Para 1

…however, has a common law power to enter premises to arrest or otherwise execute the process of the Crown. In Semayne’s Case (1604) 5 Co Rep 91; 77 ER 194, the Court of King’s Bench resolved:…
Wilkes v Wood
95 ER 807 Para 1

…The courts, however, have carefully regulated the issue of such warrants. See, for example, Entick v Carrington & Ors (1765) 2 Wils KB 275; 95 ER 807; Feather v Rogers (1909) 9 SR(NSW) 192.…
[1970] 1 QB 693
[1970] 1 QB 693 Para 1

…His Lordship repeated the position in Ghani v Jones [1970] 1 QB 693 (at 706):…
Entick v Carrington
96 ER 539 Para 1

…The courts, however, have carefully regulated the issue of such warrants. See, for example, Entick v Carrington & Ors (1765) 2 Wils KB 275; 95 ER 807; Feather v Rogers (1909) 9 SR(NSW) 192.…
[1994] 3 NZLR 667
[1994] 3 NZLR 667 Para 1

…ent restriction imposed by a warrant: Crowley v Murphy (1981) 34 ALR 496 (at 502, 505, 510, 525). As Hardie Boys J said in Simpson v Attorney-General [1994] 3 NZLR 667 (at 694) “[A] search that is carried out unreasonably exceeds the authority conferred by the warrant.”…
[1987] 1 SCR 265
[1987] 1 SCR 265 Para 1

…torily authorised under appropriate conditions and apparently thereby justified in a free and democratic society: s 28 of that Act. See R v Collins [1987] 1 SCR 265 (at [23]); Funke v France (1993) 16 EHRR 297; McLeod v United Kingdom (1999) 27 EHRR 493; Camenzind v Switzerland (1999) 28 EHRR 458.…
[1969] 1 AC 304
[1969] 1 AC 304 Para 1

…I confirm that a search of Mr Austin’s daughter was not authorised by the warrant. See King v The Queen [1969] 1 AC 304 (at 311). If the police had proposed to arrest her, the position may have been different. The search of his bag, however, was not a search of her.…
Eccles v Bourque
(1975) 2 SCR 739 Para 1

…See also Director of Public Prosecutions (NSW) v Nassif (2002) 135 A Crim R 391 (at [14]). Indeed, the statement of the law in Canada set out in Eccles v Bourque (1974) 50 DLR (3d) 753, which was accepted in Lippl v Haines , and in which Dickson J (on behalf of the court) enunciated in R v Cornell (at 133-4) the exigent c…
Swales v Cox
(1981) QB 849 Para 1

…nnouncement” rules, though I cannot find there the use of the term “exigent circumstances”. The principle, however, seems to be the same. See Swales v Cox (1981) 72 Cr App R 171 (at 176).…
(1610) 8 Co Rep 146
(1610) 8 Co Rep 146 Para 1

…ly at common law, police or similar enforcement officers were only authorised to seize items that were specified in a warrant: Six Carpenters’ Case (1610) 8 Co Rep 146a; 77 ER 695.…
[1968] 2 QB 299
[1968] 2 QB 299 Para 1

…ored and, quite frankly, extended the rights of investigators to search and seize. This history is outlined in Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 (at 309-12). At 313, Lord Denning MR described the position in relation to what a police officer could seize when executing a search warrant as follo…
[1985] 1 QB 881
[1985] 1 QB 881 Para 1

…ugh them may produce items that are within the terms of the warrant or otherwise seizable: Reynolds & Anor v Commissioner of Police of the Metropolis [1985] 1 QB 881; Crowley v Murphy (1981) 52 FLR 123 (at 156).…
77 ER 695
77 ER 695 Para 1

…ce or similar enforcement officers were only authorised to seize items that were specified in a warrant: Six Carpenters’ Case (1610) 8 Co Rep 146a; 77 ER 695.…
[1897] 1 QB 374
[1897] 1 QB 374 Para 1

…common law did permit a common law warrant to issue where there was reasonable suspicion that stolen goods were concealed on premises: Jones v German [1897] 1 QB 374.…
514 US 927
514 US 927 Para 1

…tion for exigent circumstances. In his careful written submissions, he canvassed a number of US and Canadian authorities, including Wilson v Arkansas 514 US 927 (1995) and R v Cornell [2010] SCC 31. In Richards v Wisconsin 520 US 385 (1997) the US Supreme Court, building on what had been said in Wilson v Arka…
520 US 385
520 US 385 Para 1

…nvassed a number of US and Canadian authorities, including Wilson v Arkansas 514 US 927 (1995) and R v Cornell [2010] SCC 31. In Richards v Wisconsin 520 US 385 (1997) the US Supreme Court, building on what had been said in Wilson v Arkansas , held…

Legislation cited in this decision · 4

Drugs of Dependence Act 1989 (ACT)
187, 187(2), 187(7) 4 mentions (from Para 1)
Human Rights Act 2004 (ACT)
12, 28 3 mentions (from Para 1)
Evidence Act 1995 (Cth)
138 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)