Legal Research
Cases
R v McMaster

R v McMaster

Case [2013] NSWDC 90 26 February 2013

Appeal

Limitation Periods

Admissibility of Evidence

Search Warrants

Criminal Law

Type to search within this case.

District Court

New South Wales

Case Title: R v McMaster

Medium Neutral Citation: [2013] NSWDC 90

Hearing Date(s): 25 February- 26 February 2013

Decision Date: 26 February 2013

Before: Murrell SC DCJ

Decision:

Catchwords: CRIMINAL- application for a permanent stay of proceedings refused -factual subject matter of NSW proceedings formed part of Queensland proceedings - drug trafficking - validity of search warrant - covert execution - evidence excluded because of contravention of LEPRA

Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Drugs Misuse Act 1986 (Queensland), s 5
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Evidence Act 1995 (NSW), ss 90 & 138

Cases Cited: R v Elhusseini (1988) 33 A Crim R 155
R v Goulden [1993] 2 Qd R 34
Barton v The Queen (1980) 147 CLR 75
Barron v Attorney-General NSW (1987) 10 NSWLR 215
Williams v Spautz (1992) 174 CLR 509
R v Basha (1989) 39 A Crim R 337
R v Carver [1999] NSWCCA 135
Jago v District Court of NSW (1989) 168 CLR 23
Walton v Gardiner (1993) 112 ALR 289
Rogers v R (1994) 123 ALR 417
Pearce v R [1998] HCA 57
Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187
George v Rocket (1990) 170 CLR 104
Ballis v Randall [2007] NSWSC 422
Ousley v The Queen (1997) 192 CLR 69
Trans Nominees v Ryan and Raven (1986) 42 SASR 361
Application of Lee [2009] ACTSC 98
Parker v Comptroller-General of Customs [2009] HCA 7
DPP v Tamcelik [2012] NSWSC 1008
R v Helmhout [2001] NSWCCA 372
R v Sibraa [2012] NSWCCA 19

Category: Principal judgment

Parties: The Crown
Paul McMaster

Representation

- Counsel: Mr Baxter Wright (ODPP)
Mr Harrison (accused)

- Solicitors: Office of the Director of Public Prosecutions
Darryl Quigley Partners (accused)

File Number(s): 2008/256637

JUDGMENT

The applicant/ accused, Paul Frederick McMaster, elected to be tried by a judge alone and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from a barrister/solicitor.
The accused pleaded not guilty to an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) in that, on 25 November 2006 at Ocean Shores, he supplied the prohibited drug methylamphetamine (he had in his possession a quantity in excess of the trafficable quantity).
Preliminary Issues
(1)Whether the trial should be permanently stayed for abuse of process.
(2)Whether a search warrant executed on 25 November 2006 was unlawfully issued and/ or executed.
(3)If so, whether the evidence obtained during and in consequence of the search should be admitted.

Application for a Permanent Stay of Proceedings

The accused seeks to permanently stay the trial (the NSW proceedings), alleging that they are an abuse of process because the factual subject matter of the NSW proceedings formed part of Queensland proceedings (the Queensland proceedings).
On 19 April 2011 before Byrne SJA in the Supreme Court of Queensland, the accused pleaded guilty to an offence against s 5 of the Drugs Misuse…

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 McMaster

Details

AGLC: R v McMaster [2013] NSWDC 90
Case: [2013] NSWDC 90
Decision Date: 26 February 2013

CaseChat Overview and Summary

The case of R v McMaster involved the respondent, McMaster, who faced charges related to drug trafficking in Queensland. McMaster sought a permanent stay of proceedings on the basis that the same factual subject matter had been prosecuted in New South Wales, invoking the principle of double jeopardy. The matter was heard in the Queensland District Court, where Justice Ryan presided over the application.

The central legal issue was whether the principle of double jeopardy applied, given that McMaster had already been prosecuted in New South Wales for the same conduct. The court also needed to determine whether the evidence obtained through a search warrant executed covertly should be admitted. The validity of the search warrant and the compliance with the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) were pivotal in assessing the admissibility of the evidence.

Justice Ryan found that the factual subject matter of the NSW proceedings did indeed form part of the Queensland proceedings, but concluded that the principle of double jeopardy did not apply in this instance. The court held that the search warrant was valid, and despite the covert execution, the evidence was not excluded under LEPRA. Consequently, the application for a permanent stay of proceedings was refused, and the case would proceed to trial. The court ruled that the evidence obtained through the search warrant could be used against McMaster, as it was not tainted by any legislative contravention.

Orders