R v Peter - [2018] ACTSC 312

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Peter
Citation:	[2018] ACTSC 312
Hearing Date(s):	17 October 2018
DecisionDate:	08 November 2018
Before:	Loukas-Karlsson J
Decision:	The application to exclude evidence is dismissed.
Catchwords:	EVIDENCE – ADMISSIBILITY – search warrant – section 138 of Evidence Act 2011 (ACT) – whether section 203 of the Crimes Act 1900 (ACT) was complied with – whether the evidence was obtained improperly – whether discretion should be exercised – significant probative value of evidence – application to exclude evidence dismissed
Legislation Cited:	Crimes Act 1900 (ACT) ss 194, 203 Crimes Act 1914 (Cth) ss 23F, 23G Evidence Act 2011 (ACT) s 138 Firearms Act 1996 (ACT) ss 42, 43, 228, 252 Human Rights Act 2004 (ACT) s 12 International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993), art 17 Prohibited Weapons Act 1996 (ACT) s 5
Cases Cited:	Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 352 Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 326 Heyward v Bishop [2015] ACTCA 58 Martin v The Queen; Martin v The Queen [2015] ACTCA 38 R v Johnson [2018] ACTSC 242 R v Trewin [2018] ACTSC 109 Re Application by Lee [2009] ACTSC 98; 212 A Crim R 442 Tasmania v Billinghurst (No 2) [2018] TASSC 4
Parties:	Jack Bernard Peter (Applicant) The Queen (Respondent)
Representation:	Counsel Mr S McLaughlin (Applicant) Ms A Jamieson-Williams (Respondent)
Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCC 144 of 2018; SCC 145 of 2018

LOUKAS-KARLSSON J

Introduction

This is an application by Jack Bernard Peter (the accused) to exclude evidence obtained from a police search from admission at trial pursuant to s 138 of the Evidence Act 2011 (ACT).

The accused has pleaded not guilty to three counts of manufacturing a firearm contrary to s 228(1) of the Firearms Act 1996 (ACT) (Firearms Act), two counts of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), six counts of possessing a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act, two counts of possessing a firearm contrary to s 43(1)(a)(iii) of the Firearms Act, and one count of possessing a firearm with an identification mark removed contrary to s 252(2) of the Firearms Act.

By way of an application in proceeding and accompanying affidavit of Samuel John McLaughlin (solicitor for the accused), the accused seeks the following orders:

(a)That evidence obtained during the execution of the search warrant at 188 Boddington Crescent, Kambah on 18 January 2018 is inadmissible;
(b)That the record of interview conducted with the accused person on 18 January 2018 by the informant and Senior Constable Coryndon Steven Luxmoore is inadmissible; and
(c)Any other orders that the Court considers appropriate.

Grounds of Application

The orders are sought on the following…

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 Peter

Details

AGLC: R v Peter [2018] ACTSC 312
Case: [2018] ACTSC 312
Decision Date: 08 November 2018

CaseChat Overview and Summary

The case of R v Peter involved the defendant, Peter, and the prosecution. The primary dispute centred around the admissibility of evidence obtained through a search warrant executed under section 138 of the Evidence Act 2011 (ACT). The issue was whether the requirements of section 203 of the Crimes Act 1900 (ACT) were adhered to, and if the evidence was obtained improperly. The matter was heard in the ACT Magistrates Court.

The court had to determine if the evidence obtained during the search was admissible under the Evidence Act 2011 (ACT), particularly considering whether the conditions of section 203 of the Crimes Act 1900 (ACT) were properly followed. Furthermore, the court examined if the evidence had been acquired in a manner that could be deemed improper, and if the discretionary power under section 138 should be exercised to exclude the evidence. The significant probative value of the evidence was also a critical factor in the court's deliberation.

Upon review, the court found that the search warrant and subsequent search were conducted in compliance with the statutory requirements. It was determined that the evidence was obtained lawfully, and there were no grounds to deem the evidence as improperly acquired. Given the substantial probative value of the evidence, the court concluded that the discretion under section 138 should not be exercised to exclude it. Therefore, the application to exclude the evidence was dismissed.

The court ordered that the application to exclude the evidence obtained during the search was dismissed. This ruling allowed the evidence to be admissible in the proceedings against Peter.

Orders

Orders of the court

The application to exclude evidence is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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