R v Gunner - [2018] ACTSC 71

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gunner
Citation:	[2018] ACTSC 71
Hearing Date:	27 February 2018
DecisionDate:	16 March 2018
Before:	Mossop J
Decision:	The evidence obtained on 27 July 2017 during the execution of a search warrant on the black, Subaru Impreza that had been driven by the accused and, in particular, all evidence associated with the seizure of 8.245g of heroin and $5205 in Australian currency from within the vehicle, is not inadmissible under s 138 of the Evidence Act 2011.
Catchwords:	EVIDENCE – ADMISSIBILITY – application of s 138 Evidence Act 2011 (ACT) – vehicle seized by police without authority – vehicle subsequently searched pursuant to warrant – drugs found – mistaken belief that seizure was lawful – whether evidence was “in consequence” of impropriety or contravention of Australian law – whether evidence should be admitted despite unlawful seizure - evidence admitted
Legislation Cited:	Crimes Act 1900 (ACT), s114C, 209 Criminal Code 2002 (ACT), ss 603(7), 604, sch 1 pt 1.2, Drugs of Dependence Act 1989 (ACT), 188 Evidence Act 2011 (ACT), ss 138, 138(1), 138(1)(b), 138(3) Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 47B
Cases Cited:	Australian Securities and Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 271 ALR 164 R v Caruso [2006] ACTSC 45 R v Helmhout [2001] NSWCCA 372; 125 A Crim R 257R v Kuzma (unpublished decision of Walmsley AJ, transcript dated 18 March 2016) R v Ljubic [2013] ACTSC 125 Re Application by Huy Huu Lee Lee [2009] ACTSC 98; 212 A Crim R 442 Parker v Comptroller-General of Customs [2007] NSWSC 348; 243 ALR 574
Parties:	Christopher Michael Gunner (Applicant) The Queen (Respondent)
Representation:	Counsel J Maher (Applicant) S McLaughlin (Respondent)
Solicitors Kamy Saeedi Law (Applicant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCC 271 of 2017 SCC 276 of 2017

MOSSOP J :

Introduction

This is an application for a pre-trial ruling in relation to the exclusion under s 138 of the Evidence Act 2011 (ACT) of evidence obtained in consequence of an impropriety or a contravention of an Australian law.

Overview of Crown case

The accused is charged with trafficking in a controlled drug other than cannabis, namely, heroin under s 603(7) of the Criminal Code 2002 (ACT). He also faces a variety of related charges which have been transferred: two charges of possession of property suspected of being the proceeds of crime, possessing a drug of dependence (namely methylamphetamine), possessing a prohibited substance (namely heroin), unlawful possession of stolen property, and driving with a prescribed drug in his oral fluid.

On 25 July 2017 a police officer conducted a traffic stop on the accused. He tested negative on an alcohol screening test but returned a positive result on a drug screening test and was taken into custody. When taken into custody police located $4212.35 on his person. His oral fluid was subsequently tested and found to contain methylamphetamine. At the time…

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 Gunner

Details

AGLC: R v Gunner [2018] ACTSC 71
Case: [2018] ACTSC 71
Decision Date: 16 March 2018

CaseChat Overview and Summary

In the case of R v Gunner, the respondent was charged with drug possession and dealing offences. The primary issue before the court was whether the evidence obtained from a vehicle search, which was conducted pursuant to a warrant after the vehicle had been seized by police without lawful authority, should be excluded under section 138 of the Evidence Act 2011 (ACT). The court was required to determine whether the evidence was obtained "in consequence" of an impropriety or contravention of Australian law and whether, despite the unlawful seizure, the evidence should be admitted. The court further had to consider the impact of the police's mistaken belief that the initial seizure was lawful on the admissibility of the evidence.

The court examined the statutory provision under section 138, which mandates the exclusion of evidence if it was obtained in consequence of an impropriety or contravention of Australian law, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that may have been obtained in consequence of the impropriety or contravention. The court concluded that the evidence was indeed obtained in consequence of the initial unlawful seizure, but weighed the public interest in admitting evidence that might lead to the conviction of those involved in drug possession and dealing against the undesirability of condoning the unlawful conduct by the police. It was found that the evidence was not excluded as its admission was deemed necessary in the interest of justice.

Ultimately, the court determined that the evidence obtained from the search of the vehicle, including the drugs and cash, was not to be excluded under section 138 of the Evidence Act. The court held that the public interest in convicting those involved in serious drug offences outweighed the undesirability of admitting evidence obtained through the initial unlawful seizure, provided the police acted with a genuine and reasonable belief that their actions were lawful. The court's decision ensured that the evidence was admissible, allowing the prosecution to proceed with the charges against the respondent.

The court ordered that the evidence obtained on 27 July 2017 during the execution of a search warrant on the vehicle driven by the accused, specifically all evidence associated with the seizure of 8.245g of heroin and $5205 in Australian currency, was not inadmissible under section 138 of the Evidence Act 2011.

Orders

Orders of the court

The evidence obtained on 27 July 2017 during the execution of a search warrant on the black, Subaru Impreza that had been driven by the accused and, in particular, all evidence associated with the seizure of 8.245g of heroin and $5205 in Australian currency from within the vehicle, is not inadmissible under s 138 of the Evidence Act 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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