SUPREME COURT OF QUEENSLAND
CITATION:
R v Riscuta [2017] QSC 47
PARTIES:
R
v
RISCUTA, Doru(applicant)
FILE NO/S:
Indictment No 492 of 2012
DIVISION:
Trial Division
PROCEEDING:
Application pursuant to s 590AA of the Criminal Code 1899 (Qld)
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
31 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
7 September 2016; 11 October 2016; supplementary written submissions on behalf of the applicant received 26 October 2016; supplementary written submissions on behalf of the respondent received 7 November 2016
JUDGE:
Burns J
ORDER:
Application dismissed
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARRESTS, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – LISTENING DEVICE WARRANTS – ISSUE AND VALIDITY – where a telecommunications service warrant was issued pursuant to the provisions of the Telecommunications (Intercept and Access) Act 1979 (Cth) – where the warrant authorised the interception of communications to and from a mobile phone belonging to another person – where a number of telephone conversations in which the applicant was a participant were intercepted pursuant to the warrant – where the applicant was subsequently charged on indictment with trafficking in dangerous drugs – where the Crown wished to rely on the conversations recorded pursuant to the warrant at the applicant’s trial – where the applicant applied pursuant to s 590AA of the Criminal Code 1899 (Qld) to have the recorded conversations excluded on the basis that the warrant was invalid and/or unfairly obtained – whether there was a defect on the face of the warrant because the date until which the warrant was to remain in force predated its date of issue – where the warrant was not sealed with the stamp of the issuing court – whether the public interest monitor was afforded a proper opportunity to consider whether to question the police officer who applied for the issue of the warrant and/or make submissions to the court before the warrant was issued – whether the warrant was invalid – whether the warrant was unfairly obtained – whether the conversations recorded pursuant to the warrant are admissible at the applicant’s trial
COMMUNICATIONS LAW – SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS – WARRANTS AND AUTHORISATIONS – OTHER MATTERS – where a telecommunications service warrant was issued pursuant to the provisions of the Telecommunications (Intercept and Access) Act 1979 (Cth) – where the warrant authorised the interception of communications to and from a mobile phone belonging to another person – where a number of telephone conversations in which the applicant was a participant were intercepted pursuant to the warrant – where the applicant was subsequently charged on indictment with trafficking in dangerous drugs – where the Crown wished to rely on the conversations recorded pursuant to the warrant at the applicant’s trial – where the applicant applied pursuant to s 590AA of the Criminal Code 1899 (Qld) to have the recorded conversations excluded on the basis that the warrant was invalid and/or unfairly obtained – whether there was a defect on the face…
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- R v Riscuta [2017] QSC 47
- Case
- [2017] QSC 47
- Decision Date
CaseChat Overview and Summary
The court considered the statutory framework under which the warrant was issued, noting that the Telecommunications (Interception and Access) Act 1979 (Cth) allows for the admission of evidence obtained by an interception despite an irregularity, provided the irregularity is not substantial and the court is satisfied it should be disregarded. The court examined whether the defects in the warrant constituted substantial irregularities and whether the evidence should be excluded under the Act. The court also considered the applicant's argument that the approach in Barbaro should apply, but found it unnecessary due to the specific provisions of the TIAA that allow for the admission of evidence despite irregularities.
After reviewing the arguments and the statutory provisions, the court concluded that the irregularities in the warrant were not substantial and did not necessitate the exclusion of the evidence. The court found that the warrant, despite its defects, remained valid, and the evidence obtained from the intercepted communications could be admitted in the trial. The application to exclude the evidence was dismissed, and the court allowed the Crown to rely on the recorded conversations in the applicant's trial.
Orders
Orders of the court
Application dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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