R v Pettit - [2015] TASSC 14

[2015] TASSC 14

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Pettit [2015] TASSC 14

PARTIES:  THE QUEEN
  v
  PETTIT, Tony John

FILE NO:  365/2009
DELIVERED ON:  14 April 2015
DELIVERED AT:  Hobart
HEARING DATE:  11, 12 March 2015
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Search warrants – Execution – Obligation of officers executing warrants to comply with legislation under which warrants issued.

Crimes Act1914 (Cth), ss 3, 3C, 3F and 3H.
Evidence Act 2001 (Tas), s 138.
R v Brown [2014] TASSC 18, applied.
R v Kotynia-English [2014] TASSC 63, referred to.
Aust Dig Criminal Law [2969]

REPRESENTATION:

Counsel:
             Accused:  D J Gunson SC
             Crown:  I R Arendt
Solicitors:
             Accused:  Gunson Williams
             Crown:  Commonwealth Director of Public Prosecutions

Judgment Number: [2015] TASSC 14
Number of paragraphs: 69

Serial No 14/2015
File No 365/2009

THE QUEEN v TONY JOHN PETTIT

REASONS FOR JUDGMENT TENNENT J

14 April 2015

The accused is charged with 20 offences on an indictment filed on18 November 2013. There are 17 counts of dishonestly causing a loss contrary to the Criminal Code 1995 (Cth), s 135.1(15), and three counts of defraud the Commonwealth contrary to the Crimes Act 1914 (Cth) ("the Act"), s 69. The offences relate to allegations that the accused failed to furnish income tax returns over a number of years, and that he failed to remit amounts of GST. The accused has been before this Court on these matters since August 2009. Prior to then, he was the subject of other Commonwealth charges relating to what I might loosely call social security fraud, which have not been proceeded with.
The genesis of all the proceedings was an investigation commenced by Centrelink into the eligibility of the accused for government benefits. That investigation resulted in a number of search warrants being obtained and executed in respect of premises and a number of vehicles connected to the accused. At the time, the accused was living at and operating a business called Just Roofing from premises at 42 Anfield Street, Glenorchy. That was one of the premises searched, and it is the material seized during the course of the search of those premises which underpins the Crown's case against the accused. That material included various business records, bank statements and data stored on a computer.
The Crown proposes to rely on the seized material at the trial of the accused. Counsel for the accused contends by reference to the Evidence Act 2001, s 138, that the material is inadmissible because it was illegally or improperly obtained as a consequence of contraventions of the Act and otherwise. The parties have sought a ruling prior to the commencement of the trial as to whether the Crown may rely on the material.

Contraventions asserted by the accused

Contravention 1

The first asserted contravention I will deal with relates to a purported endorsement of the warrant…

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 Pettit

Details

AGLC: R v Pettit [2015] TASSC 14
Case: [2015] TASSC 14
Decision Date: 14 April 2015

CaseChat Overview and Summary

The case of R v Pettit involved the issue of whether evidence obtained during a search of premises in Glenorchy should be admitted in court, given that the search was conducted without proper compliance with the relevant legislation. The matter was before the court to determine the admissibility of the evidence under section 138 of the relevant legislation, which provides guidelines for the admissibility of evidence obtained improperly or illegally. The defendant, Pettit, contested the admissibility of the evidence on the basis that it was obtained in breach of the law.

The legal issues before the court were whether the evidence obtained during the search was obtained improperly or illegally, and if so, whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in such a manner. The court had to consider the factors set out in section 138(3) to determine whether the evidence should be admitted. These factors included the probative value and importance of the evidence, the nature of the offence and subject matter of the proceedings, the gravity of the impropriety or contravention, whether it was deliberate or reckless, and whether it was contrary to a right recognised by the International Covenant on Civil and Political Rights.

The court found that the evidence obtained during the search was indeed obtained improperly, or in breach of an Australian law, or in consequence of an impropriety. As a result, the evidence was not to be admitted on any trial unless the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in such a manner. The court considered the factors set out in section 138(3) and found that the evidence had significant probative value and was of considerable importance in the proceedings. However, the court held that the impropriety or contravention was deliberate and contrary to a right recognised by the International Covenant on Civil and Political Rights. As a result, the court found that the undesirability of admitting the evidence outweighed the desirability of doing so.

The court ordered that the evidence obtained during the search of the premises at 42 Anfield Street, Glenorchy be excluded from any trial. This decision has significant implications for the prosecution's case, as the excluded evidence was of considerable importance and probative value. The court's decision highlights the importance of complying with relevant legislation when executing search warrants and obtaining evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 138 provides:"138 Discretion to exclude evidence improperly or illegally obtained (1) Evidence that was obtained –(a) improperly or in contravention of an Australian law; or(b)in consequence of an impropriety or of a contravention of an Australian law –is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning –(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account –(a) the probative value of the evidence; and(b) the importance of the evidence in the proceeding; and(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and(d) the gravity of the impropriety or contravention; and(e) whether the impropriety or contravention was deliberate or reckless; and(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and(g)whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and(h)the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law." Given the findings that I have made, it must be accepted that the evidential material seized during the course of the search of the premises at 42 Anfield Street, Glenorchy was obtained improperly, or in breach of an Australian law, or in consequence of an impropriety. As a consequence, that material is not to be admitted on any trial unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. It is for the Crown to satisfy me that the desirability of admitting the evidence outweighs the undesirability of doing so. Dealing with the factors referred to in s 138(3), as to (a), there is no dispute that the evidence has significant probative value. As to s 138(3)(b), there is no dispute that the evidence is of considerable importance in the proceedings. Absent the material, the Crown's case would be substantially weakened given the elements of the crimes charged to be proved.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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