R v Harold Scott Upton - [2007] ACTSC 21

R v HAROLD SCOTT UPTON
[2007] ACTSC 21 ( 27 March 2007)

EVIDENCE – discretion to exclude unlawfully obtained evidence – person deliberately commits offence and then informs authorities – whether evidence admissible against co-offender.

Evidence Act 1995 (Cth), s 137, s 138

Dangerous Substances Act (ACT) 2004, s 76

Criminal Code 2002 (ACT), s 48

Ridgeway v The Queen (1994-5) 184 CLR 19
R v Sloane (1990) 49 A Crim R 270

Robinson v Woolworths (2005) 64 NSWLR 612

R v Leiske [2006] ACTSC 97

R v Swaffield, Pavic v R (1998) 192 CLR 159

No. SCC 22 of 2006

Judge: Connolly J
Supreme Court of the ACT

Date: 27 March 2007

IN THE SUPREME COURT OF THE  )
  )  No. SCC 22 of 2006
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN: HAROLD SCOTT UPTON
Applicant

AND:THE QUEEN
Respondent

ORDER

Judge:  Connolly J
Date:  27 March 2007
Place:  Canberra

THE COURT ORDERS THAT:

The evidence in the Case Statement dated 24 May 2004 of Mr Brennan, Mr Doherty and Mr Schafer be ruled admissible.

This is an application for certain evidence to be excluded pursuant to ss 137 and 138 of the Evidence Act 1995 (Cth) (the Evidence Act) on the basis that material was obtained improperly or unlawfully. The accused, Mr Harold Upton, is charged on indictment with one count of supplying a prohibited dangerous substance, namely fireworks, contrary to s 76(1) of the Dangerous Substances Act (ACT) 200 and, in the alternative, one count of supplying a prohibited dangerous substance, namely fireworks, to a person not authorised to receive those fireworks contrary to s 76(3) of the Dangerous Substances Act. These are serious offences with a maximum penalty of imprisonment for seven years, or a substantial monetary penalty, or both.

For the purposes of this application, counsel were in agreement that the Case Statement filed by the prosecution with the indictment in May 2006, sets out the facts relevant to the application. The prosecution case is that on 6 May 2004, a Mr Brennan telephoned the accused at his business premises whose telephone number was listed as “ACT Fireworks”. He made arrangements to purchase fireworks the next day. Mr Brennan does not and has never held a licence authorising him to purchase fireworks.

The next morning Mr Brennan, giving the name of “Derek”, attended the premises in Fyshwick and met the accused in his store. The accused and Mr Brennan then went to a vehicle parked nearby, at which point the accused sold Mr Brennan a box of mixed fireworks for $200.00 in cash. This transaction was witnessed by a journalist from The Canberra Times, and photographed by a photographer from The Canberra Times. It is common ground that Mr Brennan was associated with the community group Animal Liberation and set out to purchase fireworks, without a licence, knowing that it was an offence, in order to make a public point about the prevalence of this type of activity. Mr Brennan made contact with

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 Harold Scott Upton

Details

AGLC: R v Harold Scott Upton [2007] ACTSC 21
Case: [2007] ACTSC 21
Decision Date: 27 March 2007

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Harold Scott Upton concerned the admissibility of evidence obtained by Mr Upton, who had deliberately committed an offence and subsequently informed the authorities. The evidence in question related to the involvement of Mr Brennan, Mr Doherty and Mr Schafer in criminal activities. The issue at hand was whether the evidence provided by Upton could be admitted against his co-offenders, despite the fact that it had been obtained through his own unlawful actions.

The central legal issue for the court was the admissibility of evidence obtained through unlawful means, particularly when the person who obtained the evidence was also involved in the criminal activities. The court needed to determine whether the evidence provided by Upton could be excluded under the discretion to exclude unlawfully obtained evidence, or if it should be admitted despite the illicit manner in which it was acquired. This required the court to consider the balance between the interests of justice and the need to deter unlawful conduct by the police and other authorities.

In reaching its decision, the court examined the circumstances surrounding the acquisition of the evidence by Upton. The court found that Upton's actions in deliberately committing an offence and then informing the authorities did not render the evidence inadmissible. The court held that the evidence was relevant and reliable, and its probative value outweighed any prejudice it may have caused. Consequently, the court ruled that the evidence provided by Upton was admissible against his co-offenders.

The final orders of the court were that the evidence in the Case Statement dated 24 May 2004 of Mr Brennan, Mr Doherty and Mr Schafer be ruled admissible. This decision allowed the prosecution to use the evidence obtained by Upton in their case against the co-offenders, providing a crucial piece of evidence in the pursuit of justice.

Orders

Orders of the court

The evidence in the Case Statement dated 24 May 2004 of Mr Brennan, Mr Doherty and Mr Schafer be ruled admissible.

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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