R v Justin James Trevitt - [2005] ACTSC 48

R v JUSTIN JAMES TREVITT
[2005] ACTSC 48 (7 June 2005)

EX TEMPORE JUDGMENT ON VOIR DIRE

No. SCC 125 of 2004

Judge: Higgins CJ
Supreme Court of the ACT
Date: 7 June 2005

IN THE SUPREME COURT OF THE       )
  )          No. SCC 125 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

R

v

JUSTIN JAMES TREVITT

ORDER

Judge:  Higgins CJ
Date:  7 June 2005
Place:  Canberra

THE COURT RULES THAT:

The evidence obtained by search and seizure pursuant to invalid search warrants is not to be admitted into evidence.

In this case much is common ground. Firstly it appears that Mr Trevitt was the driver of a motor vehicle described as a Holden Statesman of New South Wales registration YIM 171. He was stopped whilst in control of that vehicle at about 7.30 pm on 3 October 2003 and, I am told, at the intersection of Hindmarsh Drive and Monaro Highway.

He was, in addition to being the driver, the sole occupant of the vehicle. Mr Trevitt was immediately detained and the vehicle was searched. During the course of that search it appears that two items of interest were found. One was a brown glass bottle which contained a brown glass eyedropper. It was in the rear of the Statesman.

It appears that was located on the right-hand side of the rear seat, that is behind the driver, but within a pocket attached to the passenger seats itself. It does not appear that it was in plain view, not that that matters for the purpose of the search, but it was simply found when the pocket was opened up. I understand that was done by pulling the elasticised opening of it open and there it was found within the pocket.

The second item was a short plank of wood in a rectangular shape. It appears that that piece of wood had what could be described as a lid fashioned out of one end of it, which, when removed, revealed a hollowed-out pocket inside. This pocket contained certain items in plastic bags, which were analysed. They basically contained the items referred to in the first three of the four counts presented in the indictment.

The content of the brown glass eyedropper was the material referred to in the fourth count of the indictment.

Now, it is also common ground that, when questioned about these items, Mr Trevitt agreed that he was the driver of the vehicle and that it was the vehicle named in the warrant.

He stated that he had never previously seen the brown glass eyedropper and bottle; he made the same comment concerning the piece of wood. All these items were subject to forensic testing.

It appears that from the testing of the brown bottle and glass eyedropper, a mixed DNA profile from at least two individuals was found. But Mr Trevitt can be excluded as having contributed to this DNA, so it is fair to say that there is nothing that connects Mr Trevitt with the bottle…

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

Case: [2005] ACTSC 48
Decision Date

CaseChat Overview and Summary

The case of R v Justin James Trevitt was heard in the Supreme Court of the Australian Capital Territory, presided over by Chief Justice Higgins. The central issue in the case revolved around the admissibility of evidence obtained via search and seizure under invalid search warrants. Mr. Trevitt was detained and his vehicle was searched, resulting in the discovery of items that could be connected to drug offenses. However, the warrants under which these items were found were deemed invalid due to significant drafting errors, which failed to properly authorize the search of the vehicle.

The legal issues before the court were whether the invalid warrants rendered the search and the resulting evidence inadmissible. The court had to consider the discretion to exclude improperly obtained evidence under the Evidence Act 1995 (Cth). The court examined the probative value of the evidence, the importance of the evidence in the proceedings, the nature of the offense, and the gravity of the impropriety or contravention. The court noted that while the evidence could have been obtained legally, the warrants were so poorly drafted that they did not authorize the search conducted.

In its reasoning, the court found that the warrants were invalid as they did not conform to the legal requirements for authorizing searches under the Drugs of Dependence Act 1989 (ACT). The court highlighted the oversight in drafting the warrants and noted that while it was not a deliberate act, the invalidity of the warrants was significant. The probative value of the evidence was considered slight, given the lack of direct connection between Mr. Trevitt and the items found. Given the invalidity of the warrants and the slight probative value of the evidence, the court exercised its discretion under section 138 of the Evidence Act to exclude the evidence obtained from the search.

In conclusion, the court ruled that the evidence obtained by search and seizure pursuant to invalid search warrants is not to be admitted into evidence. This decision was based on the invalidity of the warrants and the minimal probative value of the evidence, which did not sufficiently connect Mr. Trevitt to the items found in his vehicle.

Orders