R v Rees

Case [2005] ACTSC 91 23 September 2005

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THE QUEEN v GWYN ALUN REES [2005] ACTSC 91 (23 September 2005)

CATCHWORDS

CRIMINAL LAW – EVIDENCE – admissions – admissions made by accused person to Australian Federal Police officers – Crimes Act 1914 (Cth), s 23V – whether reasonably practicable to tape-record admission – where non-compliance with statutory scheme – no special circumstances to justify admitting the evidence.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – search warrants – seizure of non-drug items – where monies found in course of executing search warrant – tendency evidence – whether monies show previous drug-related transactions or whether monies adduced as part of surrounding circumstances tending to prove commission of the offence – R v McGhee (1993) 61 SASR 208 followed.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – search warrants – validity of warrant – whether powers of search and seizure contained in warrant beyond power conferred by statute – Drugs of Dependence Act 1989 (ACT), s 187 – whether impugned phrase in warrant is severable – application of severance principles and Legislation Act 2001 (ACT), s 43.

Drugs of Dependence Act 1989 (ACT), Div 11.3, s 164, s 169, s 171, s 187

Supreme Court Rules, O 86, Div 80.6, r 18, r 19

Crimes Act 1914 (Cth), s 23V
Evidence Act 1995 (Cth) s 97
Legislation Act 2001 (ACT), s 13, s 14, s 43
Acts Interpretation Act 1901 (Cth), s 46
Customs Act 1901 (Cth)

R v Basha (1989) 39 A Crim R 337
R v McGhee (1993) 61 SASR 208
Lewis (1989) 46 A Crim R 365
R v Stankovich (2004) 149 A Crim R 88
The Queen v Khajehnoori [2005] ACTSC 76
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
Ousley v The Queen (1997) 192 CLR 69
Von Arnim v Health Insurance Commission [2004] FCAFC 33
Malubel Pty Ltd v Elder [No. 2] (1999) 73 ALJR 269
Peters v Attorney-General (NSW) (1998) 16 NSWLR 24
Parker v Churchill (1985) 9 FCR 316
Parker v Churchill (1986) 9 FCR 334
Re Arno: ex parte Forsyth (1985) 9 FCR 557
R v NG (2002) 5 VR 257
Coco v The Queen (1994) 179 CLR 427

No. SCC 254 of 2004

Judge: Gray J
Supreme Court of the ACT
Date: 23 September 2005

IN THE SUPREME COURT OF THE     )
  )          No. SCC 254 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )
CRIMINAL JURISDICTION                   )

THE QUEEN
against
GWYN ALUN REES

RULING

Judge:  Gray J
Date of Ruling:  23 September 2005
Place:  Canberra

THE COURT RULES THAT:

In respect to paragraph 3 of the notice of motion dated and filed on 27 July 2005, what was said by the accused as a consequence of questioning by police officers on 14 November 2003, is not admissible in evidence in these proceedings.

In all other respects the notice of motion be dismissed.

Gwyn Alun Rees, the accused, is charged with possessing a trafficable quantity of a prohibited substance, MDMA (ecstasy) for the purposes of sale…

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 Rees

Details

AGLC: R v Rees [2005] ACTSC 91
Case: [2005] ACTSC 91
Decision Date: 23 September 2005

CaseChat Overview and Summary

The case before the court involved the respondent Rees, who faced charges under the Drugs of Dependence Act 1989 (ACT) and the Criminal Code Act 1995 (Cth). The dispute centred on the admissibility of evidence obtained during a search and the legality of the search warrant itself. The court had to consider whether certain admissions made by Rees to Australian Federal Police officers could be admitted, whether monies found during the search were admissible as evidence of previous drug-related transactions, and the validity of the search warrant under the Drugs of Dependence Act 1989 (ACT).

The legal issues before the court included whether the statutory requirement to tape-record admissions under the Crimes Act 1914 (Cth), section 23V could be waived, the admissibility of evidence obtained during a search warrant that went beyond the powers conferred by statute, and the application of severance principles to an allegedly invalid phrase in the search warrant. The court also had to determine if the monies found during the search could be admitted as evidence of previous drug-related transactions under R v McGhee (1993) 61 SASR 208.

The court found that the statutory requirement to tape-record admissions was not complied with, and there were no special circumstances to justify admitting the evidence. Regarding the search warrant, the court held that the powers of search and seizure contained within the warrant went beyond the powers conferred by statute and could not be saved by severance under the Legislation Act 2001 (ACT), section 43. Consequently, the monies found during the search were not admissible as evidence of previous drug-related transactions. The court determined that the invalid portion of the search warrant could not be severed, rendering the warrant itself invalid.

The court ordered that the admissions made by Rees to the Australian Federal Police officers be excluded from evidence, and the monies found during the search could not be admitted as evidence of previous drug-related transactions. The invalidity of the search warrant led to the suppression of evidence obtained during the search, thereby impacting the prosecution's case against Rees.

Orders