SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Roy (No 3) |
Citation: | [2025] ACTSC 5 |
Hearing Date: | 16, 17, 18, 19 December 2024 |
Decision Date: | 29 January 2025 |
Before: | McCallum CJ |
Decision: | I decline to exclude under s 138 of the Evidence Act the evidence of the items seized during the execution of the search warrants at the home of the accused on 14 January 2021. |
Catchwords: | CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – where accused charged with offences relating to child abuse material – where charges based on items seized during execution of search warrants – whether evidence obtained in consequence of impropriety or contravention of a law of Australia – where police obtained information that child abuse material was available for sharing on a peer-to-peer network at a specified IP address – where authorised disclosure by internet service provider revealed IP address was assigned to the accused at the relevant times – where information concerning IP address was provided by nonprofit non-law enforcement organisation based in Florida – whether AFP responsible for any offence committed by non-profit organisation in Florida – whether search of database by AFP was a warrantless search – whether process of obtaining information entailed unlawful interception of a communication passing over a telecommunications system – whether application for or execution of search warrants involved any impropriety – whether investigation involved any breach of the human rights of the accused – whether 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 |
Legislation Cited: | Acts Interpretation Act 1902 (Cth), s 2C Crimes Act 1914 (Cth), ss 3E, 3P Criminal Code (Cth), ss 474.22, 474.24 Evidence Act 2011 (ACT), ss 138, 192A Human Rights Act 2004 (ACT), ss 12, 21, 28, 31, 40B Mutual Assistance in Criminal Matters Act 1987 (Cth) Partnership Act 1963 (ACT), s 6 Surveillance Devices Act 2004 (Cth) Telecommunications (Interception and Access) Act 1979 (ACT), ss 5, 5F, 5G, 5H, 6, 7, 77, 178 |
Cases Cited: | Benedik v Slovenia (European Court of Human Rights, Fourth Section, Application No 62357/14, 24 April 2014) Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 DPP v Kaba [2014] VSC 52; (2014) 44 VR 526 Director of Public Prosecutions v AM [2006] NSWSC 348; (2006) 161 A Crim R 219 Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 HJ (a pseudonym) v IBAC [2021] VSCA 200 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 Kadir v The Queen [2000] HCA 1; (2020) 267 CLR 109 Parker v Comptroller-General of Customs [2009] HCA 7; 252 ALR 619 R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 R v Petroulias (No 5) [2006] NSWSC 1155 |
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- AGLC
- R v Roy (No 3) [2025] ACTSC 5
- Case
- [2025] ACTSC 5
- Decision Date
CaseChat Overview and Summary
The court examined the process by which the information was obtained and found that there was no impropriety or contravention of Australian law. The court determined that the AFP were not responsible for any offence committed by the non-profit organisation in Florida. The court held that the search of the database by the AFP was not a warrantless search and that there was no unlawful interception of a communication. The court also found that there was no impropriety in the application for or execution of the search warrants and that the investigation did not breach the human rights of the accused. The court concluded that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained through the methods used.
The court declined to exclude the evidence under section 138 of the Evidence Act, finding that the evidence was admissible. The court held that the evidence was relevant and probative of the charges against the respondent and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the respondent. The court found that the evidence was obtained lawfully and that there was no breach of the respondent's human rights. The court held that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained through the methods used.
The court ordered that the evidence of the items seized during the execution of the search warrants at the home of the accused on 14 January 2021 be admitted. The court found that the evidence was admissible and that it would be unfair to exclude it. The court held that the evidence was relevant and probative of the charges against the respondent and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the respondent. The court found that the evidence was obtained lawfully and that there was no breach of the respondent's human rights. The court held that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained through the methods used.
Orders
Orders of the court
I decline to exclude under s 138 of the Evidence Act the evidence of the items seized during the execution of the search warrants at the home of the accused on 14 January 2021.
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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