R v Osborne - [2003] TASSC 17

[2003] TASSC 17

CITATION: R v Osborne [2003] TASSC 17

PARTIES:  R
  v
  OSBORNE, Andrew Kevin

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  249/2002
DELIVERED ON:  16 April 2003
DELIVERED AT:  Burnie
HEARING DATES:  28, 31 March, 1, 4 April 2003
JUDGMENT OF:  Slicer J

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Abuse of process - Entrapment.

Evidence Act 2001 (Tas), s138.
Ridgeway v R (1995) 184 CLR 19, applied.
Aust Dig Criminal Law [423]

REPRESENTATION:

Counsel:
             Crown:  T J Ellis SC
             Accused:  G A Richardson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number: [2003] TASSC 17
Number of Paragraphs: 49

Serial No 17/2003
File No 249/2002

THE QUEEN v ANDREW KEVIN OSBORNE

REASONS FOR JUDGMENT SLICER J

16 April 2003

The accused seeks the exclusion of the evidence of undercover officers who met with him on a number of occasions between July and December 2001. The evidence sought to be excluded comprises the officers' accounts of the conversations, recordings of some of three conversations and acts of sale on the part of the accused.

Mr Osborne has been indicted on four counts of selling a narcotic substance on 28 July, 9 August, 14 November and 7 December 2001, contrary to the Poisons Act, 1971 s47(1)(a), and each count relates to a sale to and purchase by an undercover operator.

The matter is to be determined prior to the empanelment of a jury, in accordance with the Criminal Code, s361A.

The accused contends that the evidence ought be excluded on three bases, namely:

(1)As a matter of public policy in that the officers acted outside of permitted procedures, conduct which ought not be sanctioned by the courts. Whilst the conduct might be lawful, its manner of execution was improper.
(2)The conduct of the operators was unlawful.
(3)The conduct itself was causative of the acts of sale in that "but for" that conduct a crime would not have occurred.

The contentions depend in part on the application of the principles stated in Ridgeway v R (1995) 184 CLR 19, and the statutory requirements of the Evidence Act 2001, s138 ("the Act"). Central to the resolution of those contentions are questions of credibility of witnesses and inferences to be drawn from statements and conduct.

General background

Mr Osborne had a prior history of commercial dealings with illicit drugs, in particular amphetamines. That history, and Mr Osborne personally, were known to officers of the Drug Investigation Service. An officer, Constable Walkden, was assigned to the collection and compilation of intelligence material concerning the suspected activities of Mr Osborne. Information is, as a matter of course, collected, recorded and allocated a reliability assessment code. Information is received from the observations and general reports of police officers, statements and hearsay material obtained from registered or known informants, material gleaned from formal interviews with other suspects and…

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 Osborne

Details

AGLC: R v Osborne [2003] TASSC 17
Case: [2003] TASSC 17
Decision Date: 16 April 2003

CaseChat Overview and Summary

The case of R v Osborne was heard in the Supreme Court of Tasmania. The accused, Andrew Kevin Osborne, sought to exclude evidence obtained by undercover police officers who engaged in several transactions with him between July and December 2001. The evidence in question included officers' accounts of their conversations with the accused, recordings of some conversations, and acts of sale. Osborne was indicted on four counts of selling a narcotic substance, namely amphetamines, on specific dates in 2001. The primary legal issues were whether the evidence should be excluded due to the officers acting outside permitted procedures, whether the conduct of the officers was unlawful, and whether the officers' conduct caused Osborne's acts of sale.

The court examined these issues in light of the principles established in Ridgeway v R and the statutory requirements of the Evidence Act 2001 (Tas), s138. The court found that while the undercover officers' conduct was unlawful, it was protected by legislative provisions that granted immunity to police officers acting in good faith under the Poisons Act. The court also concluded that the officers' conduct did not cause Osborne's acts of sale, as he demonstrated a willingness to sell amphetamines even without the officers' involvement. The court held that the evidence should be admitted, as the desirability of admitting it outweighed the undesirability of how it was obtained, considering factors such as the probative value of the evidence, the importance of the evidence, and the nature of the offence.

The court's final order was that the evidence obtained by the undercover officers would be admitted at the trial, exercising the discretion under the Evidence Act to permit its reception despite its improper or illegal procurement.

Orders