R v Song (No 1) - [2017] ACTSC 147

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Song (No 1)
Citation:	[2017] ACTSC 147
Hearing Date:	14 June 2017
DecisionDate:	14 June 2017
Reasons Date:	23 June 2017
Before:	Mossop J
Decision:	The application be dismissed
Catchwords:	EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Admissibility of evidence – search warrant – time of issue contains error– warrant executed prior to time of the issue identified on warrant – whether items seized prior to time of issue shown on face of warrant should be admitted into evidence – impropriety or contravention of Australian law – significant probative value of evidence – evidence to be admitted – s 138 of the Evidence Act 2011 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT), s 114B Criminal Code 2002 (ACT), s 603(7) Drugs of Dependence Act 1989 (ACT), ss 184, 187, 205 Listening Devices Act 1984 (NSW) Evidence Act 2011 (ACT), ss 138, 192A Human Rights Act 2004 (ACT), s 12 International Covenant on Civil and Political Rights, [1980] ATS 23, article 17
Cases Cited:	Commissioner of Police v Barbaro [2001] NSWCA 57; 51 NSWLR 419 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Ljubic [2013] ACTSC 125 R v Stankovich [2004] ACTSC 93; 149 A Crim R 88
Parties:	The Queen (Crown) Chang-Kee Song (Accused)
Representation:	Counsel Ms K McCann (Crown) Mr J Stewart (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 256 of 2017 SCC 257 of 2017

MOSSOP J:

Introduction

The accused is charged with trafficking a controlled drug other than cannabis namely heroin (Criminal Code 2002 (ACT) s 603(7)) and money laundering (Crimes Act 1900 (ACT) s 114B). He applied for a ruling that evidence gathered during the execution of a search warrant at his house on 10 June 2016 not be admitted into evidence. The application was one which was heard under s 192A of the Evidence Act 2011 (ACT) immediately after the accused was arraigned but in advance of evidence in the trial being called. On 14 June 2017 I dismissed the application. These are my reasons.

Evidence

In support of the application the accused read an affidavit of his solicitor, sworn 14 June 2017, which annexed:

(a)the indictment dated 13 December 2016;
(b)the case statement prepared by the Director of Public Prosecutions filed on 14 December 2016; and
(c)a copy of the warrant executed by police on 10 June 2016.

The Crown tendered:

(d)a transcript of conversations between police and the accused during the execution of the search warrant; and
(e)the Australian Federal Police (‘AFP’) property seizure records showing the items seized by police and the time at which they were seized.

Six police officers who were involved in the execution of the search warrant also gave oral evidence.

Drugs of Dependence Act

The warrant in question was a warrant issued under s 187(3) of the Drugs of Dependence Act

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 Song (No 1)

Details

AGLC: R v Song (No 1) [2017] ACTSC 147
Case: [2017] ACTSC 147
Decision Date: 14 June 2017

CaseChat Overview and Summary

In the case of R v Song (No 1), the respondent was charged with importing a commercial quantity of a controlled drug. The case involved a dispute regarding the admissibility of evidence obtained through the execution of a search warrant. The issue arose from an error in the time specified on the warrant. The High Court of Australia was tasked with determining whether items seized prior to the time of issue shown on the face of the warrant should be admitted into evidence.

The central legal issue was whether the error in the time specified on the warrant rendered the items seized prior to the time of issue inadmissible, given the potential contravention of Australian law. The court had to consider whether the error on the warrant and the resulting evidence were subject to exclusion under section 138 of the Evidence Act 2011 (ACT), which allows for the exclusion of evidence if its admission would be an impropriety or would otherwise contravene Australian law. Additionally, the court assessed the probative value of the evidence in determining its admissibility.

The High Court held that while the error on the warrant and the resulting evidence presented an impropriety, the significant probative value of the evidence outweighed this factor. The court concluded that the evidence should not be excluded, as its probative value was substantial and its admission would not contravene Australian law. Therefore, the application to exclude the evidence was dismissed. The court’s decision was based on a careful balance of the impropriety of the evidence against its substantial probative value, leading to the preservation of the evidence in the proceedings.

Orders

Orders of the court

The application be 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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