(The Honourable Justice Debelle, The Honourable Justice Bleby and The Honourable Justice White)
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal against conviction – Appellant convicted by jury of murder – Prosecution case circumstantial – Appeal on grounds for which leave was granted by a single judge and additional grounds for which leave was granted by this Court – Whether any error or errors established – Whether an error or combination of errors led to miscarriage of justice and unsafe and unsatisfactory verdict – Appeal dismissed by majority.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - ISSUE AND VALIDITY - CERTAINTY AND WIDTH
Two search warrants, dated 28 October 2002 and 10 March 2003, issued under Search Warrants Act 1985 (NSW) to police to enter and search appellant’s home in NSW – Items seized included important items of circumstantial evidence - Whether each search warrant invalid for failure to disclose jurisdiction on its face and for failure to specify the offence to which it related, and, in the case of the first, for misstatement of the address of the premises to be searched, and other inaccuracies – Whether police made representations to appellant and his mother which implied that they held a valid warrant – Where on 29 October 2002 issuing justice corrected the misstated address by substitution of first page of warrant – Whether issue of a new warrant or amendment of warrant issued on 28 October 2002 – Whether trial Judge erred by ruling search warrants to be valid – Whether trial Judge should have exercised public policy discretion to preclude the Crown from adducing into evidence items found during the course of each search.
Held: Not necessary for warrants to disclose jurisdiction on their face – Each warrant issued in conformity with prescribed form of warrant – Sufficient statement of offence to which the first warrant related – When warrant first issued on 28 October 2002, it did not, because of misstatement of the address, authorise search of the appellant’s premises – Invalid on that account – Not necessary to decide whether actions of issuing justice on 29 October 2002 should be characterised as an amendment of the warrant issued on 28 October 2002 or as issue of a new warrant – Not necessary to determine whether police had impliedly represented that they had a valid warrant – Warrant dated 10 March 2003 was invalid because of failure to specify the offence in respect of which the search was authorised – Bunning v Cross discretion could not reasonably have been exercised so as to exclude evidence of items found in each search – Police had had a genuine belief that the first warrant was valid – Police attempted…
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.
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Details
AGLC
R v Gassy (No 3) [2005] SASC 496
Case
[2005] SASC 496
Decision Date
CaseChat Overview and Summary
In the case of R v Gassy, the appellant was convicted by a jury of murder, with the prosecution's case relying on circumstantial evidence. The appeal against this conviction was based on several grounds, including the validity of search warrants, the denial of legal representation, and the admissibility of identification evidence. The court was tasked with determining whether any errors made during the trial led to a miscarriage of justice, thereby rendering the verdict unsafe and unsatisfactory.
The primary legal issues addressed by the court involved the validity of search warrants executed at the appellant's residence, the denial of legal representation during part of the trial, and the admissibility of identification evidence. Regarding the search warrants, the court examined whether the warrants were invalid due to procedural inaccuracies, such as misstated addresses and unspecified offences, and whether the police had genuinely believed the warrants to be valid. The court also assessed whether the denial of legal representation during a voir dire hearing prejudiced the appellant's right to a fair trial and whether the identification evidence was reliable and properly admitted.
The court ruled that the search warrants, while containing some inaccuracies, were not invalid as they were issued in conformity with the prescribed form and the police had a genuine belief in their validity. The court found that the denial of legal representation during the voir dire did not result in a miscarriage of justice, as the appellant was not indigent and the trial judge's discretion to control proceedings was appropriately exercised. The court further concluded that the identification evidence was properly admitted, and any weaknesses in the identification process did not undermine the reliability of the evidence. The appeal was ultimately dismissed by a majority of the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
After the appellant had been arraigned but before the jury had been empanelled, the trial Judge conducted a voir dire hearing to determine applications relating to the admissibility of evidence. The appellant was represented by counsel retained by him for part of that time. Further detail of that representation is discussed in relation to Ground 2. After the jury had been empanelled, the appellant was unrepresented for the rest of the trial. The appellant conducted his own appeal in this Court.2. Ground 1 – Evidence of items found on execution of search warrants The appellant submitted that the trial Judge erred in failing to exclude evidence obtained by the police in the course of the execution of two search warrants at his home on 29 October 2002 and 10 March 2003 respectively. It was submitted that neither of the warrants was valid or, in the alternative, that neither authorised the searches carried out on those respective dates. The items which the appellant sought to have excluded from admission into evidence were all those items seized during the searches which were important items of circumstantial evidence in the prosecution case.2.1 The circumstances of the execution of the warrant on 29 October 2002 On Monday 28 October 2002, Sergeant Moss of the New South Wales Police obtained from a Justice of the Peace at the Kogarah Local Court a search warrant pursuant to Part 2 of the Search Warrants Act 1985 (NSW) (“the SWA”). That warrant, comprising two pages, authorised Sergeant Moss “and all other police officers” to enter, between the hours of 6 am and 9 pm “the premises known as 23 St Georges Crescent, Oyster Bay” and there to search for items of a kind specified in the warrant. The warrant stated incorrectly the address of the premises which the police wished to search, namely, the place where the appellant lived with his parents. The correct address was 23 Georges River Crescent, Oyster Bay. The error was not noted at the time that the warrant was issued. Because the appellant was then suspected of the shooting of Dr Tobin, and because they knew that he was registered as the owner of two Glock 9mm pistols, the police had some concern about his possible behaviour at the time of execution of the warrant. Accordingly, they resolved to speak privately to the appellant’s mother (“Mrs Gassy”) before executing the warrant. At about 9.50 am on Tuesday, 29 October 2002, New South Wales Police stopped Mrs Gassy as she was driving to a school appointment. They explained to her that her son was suspected of the murder of Dr Tobin and that they had a search warrant, and requested her assistance in avoiding any incident associated with its execution. Mrs Gassy agreed to, and did, co-operate with the police. After first driving to the school to let persons there know that she would not be able to keep her appointment, she allowed police officers to drive her in her car to her home, arriving there at about 10.15 am. She then approached the front door with the police officers and opened it. The police officers then had a conversation with the appellant, who was close to the front door. The police informed the appellant that they were there to execute a search warrant but that the search could not commence until other police officers, in particular a video operator, had arrived. Shortly afterwards, the police entered the house without any opposition from the appellant or his mother.
Decision
Reasons for decision
DEBELLE J
After the evidence of the police officers (other than that of Sergeant Moss) had been completed, the appellant (then represented by counsel) also submitted that the warrant executed on 29 October 2002 was invalid for some further reasons. It was submitted that the effect of the events on 29 October 2002 before the justice meant either that a fresh warrant had been issued on that day or, alternatively, that the warrant issued on 28 October 2002 had been amended. In the former case, it was submitted that the warrant was invalid because it showed an incorrect date of issue, namely, 28 October 2002. In the latter case, the warrant was not endorsed in any way to show that it had been amended. In addition, it was submitted that the manner of execution of the warrant was unlawful because, although the SWA required the search warrant to be executed between the hours of 6 am and 9 pm the police officers executing the warrant had in fact remained on the premises after 9 pm.2.3 The decision of the trial Judge In a ruling delivered on 17 June 2004, the trial Judge declined to exclude evidence of the items found in the execution of the search warrant on 29 October 2002. Her Honour concluded that the search warrant was not attended by illegality or impropriety. Following the jury’s verdict, the trial Judge published detailed reasons for her ruling. Those reasons can be summarised as follows:1.Although in some circumstances the taking of evidence on a collateral challenge to the validity of a search warrant may be appropriate, there was nothing in the evidence adduced by the appellant which raised any real question as to the sufficiency of the material before the issuing justice to indicate that a voir dire on that topic was appropriate. In this respect, the trial Judge applied the decision of the Full Court in Question of Law Reserved on Acquittal (No 5 of 1999)[1].2.The Crown was not required to prove compliance with the various provisions of the SWA for the issue of a warrant. It was for the appellant to show that there were serious questions as to the legality of the issue or execution of the warrant. The appellant had not established that such questions arose.3.The warrant issued on 28 October 2002 was not open to attack on the basis of failure to recite satisfaction with jurisdictional factors, because its form complied with the legislative requirements as to its contents. In this respect the Judge referred to Ousley v The Queen.[2]4.The search warrant as amended on 29 October 2002 was not invalid on its face, whether because of a failure to demonstrate on its face that all prerequisites to the grant of a warrant had been met, or because of the erroneous reference to the provisions of New South Wales legislation.5.The misdescription of the address was an error of form and not of substance.6.There was no impropriety in the police conduct in relation to Mrs Gassy. The Judge found that Mrs Gassy had voluntarily agreed to assist the police (whose evidence on this issue she described as impressive).7.The substitution of an amended first page on 29 October 2002 was not an unlawful or improper method of correcting the error in the statement of the address.8.Even if the police had acted unlawfully or improperly so as to enliven the Bunning v Cross[3] discretion, that discretion should not be exercised so as to exclude any of the evidence of items seized at the search.2.4 The arguments on appeal[1] (2000) 76 SASR 356.[2] (1997) 192 CLR 69.[3] (1978) 141 CLR 54.