R v M C-N; R v Andy

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v M C-N; R v Andy

Citation:

[2021] ACTSC 129

Hearing Date:

28 – 29 April 2021

DecisionDate:

30 June 2021

Before:

Burns ACJ

Decision:

See [73]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – s 138 of the Evidence Act 2011 (ACT) – invalid search and surveillance warrant – where items seized under invalid warrant – application that evidence be excluded as illegally or unlawfully obtained – where warrant invalid due to omitting offence to which warrant related – where applicants charged with aggravated burglary – where police became aware of warrant invalidity while on property subject of warrant after items had been seized – consideration of “rule of strictness” in relation to discretion under s 138 – whether police conduct deliberate or reckless – consideration of whether conduct of police amounted to deliberate contravention of Australian law or deliberate impropriety – consideration of probative value of evidence

Legislation Cited:

Crimes Act 1914 (Cth) s 3E
Criminal Code 2002 (Cth) ss 45A, 308, 312, 403
Evidence Act 2011 (ACT) s 138
International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 17

Cases Cited:

Bunning v Cross (1978) 141 CLR 54
Kadir v The Queen [2020] HCA 1; 267 CLR 109
Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
R v Thompson (No 3) [2017] ACTSC 53
Smethurst v Commissioner of Police (Cth) [2020] HCA 14; 280 A Crim R 356
Tran v Stapleton [2021] ACTSC 1

Parties:

The Queen (Respondent)

M C-N (Applicant)

Damien Thomas Andy (Applicant)

Representation:

Counsel

K Lee (Respondent)

B Morrisroe (Applicant)

J Cooper (Applicant)

Solicitors

ACT Director of Public Prosecutions (Respondent)

KG Criminal Law (Applicant)

Aboriginal Legal Service (Applicant)

File Numbers:

SCC 298 of 2020; SCC 20 of 2021

BURNS ACJ:

Background

1. The three co-accused Damien Andy, M C-N and Alexander Warne are charged with the following counts:

i. one count aggravated burglary by joint commission, contrary to ss 45A and 312 of the Criminal Code 2002 (ACT) (the Criminal Code);

ii. one count damaging property by joint commission, contrary to ss 45A and 403 of the Criminal Code; and

iii. one count theft by joint commission, contrary to ss 45A and 308 of the Criminal Code.

1. It is alleged that on 3 September 2020, the three co-accused forced entry into a premises in Taylor, ACT, while carrying baseball bats and sticks and shouted threats at the homeowner. The homeowner then fled the premises with her baby and young child after seeing the co-accused. The co-accused used the weapons to cause damage to property within the premises including two televisions, shelving units and various internal walls, doors and glass windows. The co-accused also stole a white Xbox One-S gaming console and a glass smoking implement being a “bong”.

1. Later that…