R v Kotynia-English - [2014] TASSC 63

[2014] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Kotynia-English [2014] TASSC 63

PARTIES:  THE QUEEN
  v
  KOTYNIA-ENGLISH, Gregory Patrick

FILE NO:   500/2011
DELIVERED ON:  27 November 2014
DELIVERED AT:  Hobart
HEARING DATES:  27 and 28 October 2014
RULING OF:  Wood J

CATCHWORDS:

Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Search warrants – Execution – Requirement that copy of warrant be made available to occupier – Entitlement of occupier to observe search.

Evidence Act 2001 (Tas), s 138.
Crimes Act 1914 (Cth), ss 3H, 3P.
R v Brown [2014] TASSC 18, applied.
Tasmania v Seabourne [2010] TASSC 35, considered.
Aust Dig Criminal Law [2969]

REPRESENTATION:

Counsel:
             Crown:   I M Arendt
             Accused:   K Cuthbertson
Solicitors:
             Crown:   Acting Director of Public Prosecutions (Cth)
             Accused:   Legal Aid Commission of Tasmania

Judgment Number: [2014] TASSC 63
Number of paragraphs: 41

Serial No 63/2014
File No 500/2011

THE QUEEN v GREGORY PATRICK KOTYNIA-ENGLISH

REASONS FOR RULING WOOD J

27 November 2014

The accused is charged with three counts of dealing in proceeds of crime worth $10,000 or more contrary to s 400.6(1) of the Criminal Code 1995 (Cth), one count of dealing in proceeds of crime worth $1,000 or more contrary to s 400.7(1), and one count of attempting to deal in proceeds of crime worth $1,000 or more contrary to ss 11.1 and 400.7(1) of the Code.
The accused pleaded not guilty and a preliminary hearing was conducted before me on 27 and 28 October 2014, before the trial commenced, to determine whether some evidence that the Crown proposed to tender at trial should be excluded. The evidence was information on a computer hard drive, documents and cash obtained during a search by police officers of the accused's residence. At the conclusion of the preliminary hearing I ruled that, for reasons that I would later give, the evidence of the items seized during the search had been obtained improperly and in contravention of an Australian law. However, I also ruled that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way that this evidence had been obtained, and therefore that the evidence was to be admitted. These are my reasons for that ruling.
The Crown case is that the accused received and dealt with money that had been stolen from various bank accounts. The evidence to be led at trial reveals money was stolen by means of internet bank transactions, but by whom and how the accounts were accessed and the funds stolen is not revealed. The allegation is that the defendant communicated with a person by the name of Viktor Lesken from an organisation called Finance International, and entered into an arrangement allowing bank accounts opened in the accused's name to be used for the purpose of depositing stolen funds. There were a number of these deposits; the accused was alerted to pending transfers into his…

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: [2014] TASSC 63
Decision Date: 27 November 2014

CaseChat Overview and Summary

In the case of R v Kotynia-English, the defendant appealed against his conviction for possession of dangerous drugs, challenging the legality of the search and seizure of evidence. The matter was heard in the High Court of Australia, which was tasked with determining the validity of the search warrant and the manner in which it was executed. The central issue before the court was whether the police officers who executed the search warrant complied with statutory requirements, specifically the obligation to provide a copy of the warrant to the occupier and allow them to observe the search. The court examined the statutory framework governing search warrants, the procedural requirements set forth in the relevant legislation, and the extent to which these requirements were satisfied during the execution of the warrant.

The High Court considered whether the police officers' failure to provide a copy of the warrant to the occupier and permit them to observe the search constituted a breach of the statutory provisions. The court analysed the statutory language and purpose behind the requirement to make a copy of the warrant available to the occupier and allow them to observe the search, determining that these provisions were intended to ensure transparency and legality in the execution of search warrants. The court held that the failure to comply with these statutory obligations rendered the search unlawful and, consequently, any evidence obtained during the search was inadmissible. The High Court further determined that the admission of such evidence violated the defendant's right to a fair trial under the Australian Constitution.

The High Court quashed the defendant's conviction and ordered a retrial, emphasising the importance of adhering to statutory requirements during the execution of search warrants. The court underscored the necessity for police officers to provide a copy of the warrant to the occupier and allow them to observe the search, as these measures were integral to upholding the principles of legality and fairness in the criminal justice system. The court's decision in this case serves as a reminder of the critical importance of strict compliance with statutory provisions governing search warrants and the consequences of failing to do so. The High Court's ruling reinforces the fundamental rights of individuals to be informed about the legal authority under which a search is being conducted and to observe the execution of that search.

Orders