1. The undertaking of the Crown is noted, namely not to submit at the trial of the accused, Andrew Francis Thompson, for the offences of aggravated burglary and forcible confinement, that the letters seized during the search of the premises of the accused, Andrew Francis Thompson, on 5 November 2013 constituted an admission that he engaged in the conduct which constituted these offences.
2. The application by Application in Proceedings dated 2 September 2016 be dismissed.
3. The judge before whom the trial of Andrew Francis Thompson for offences of aggravated burglary and forcible confinement be requested to consider giving the jury an express direction that the letters referred to in Order 1 cannot constitute an admission to the commission of those offences.
Catchwords:
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Exclusion of improperly or illegally obtained evidence – probative value of evidence – importance of evidence in the proceedings – gravity of the impropriety – impropriety deliberate or reckless – difficulty in obtaining the evidence without impropriety – evidence in question not to be excluded – s 138 of the Evidence Act 2011 (ACT)
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Exclusion of prejudicial evidence – mandatory exclusion – issue raised in pre-trial application not addressed on appeal – unfair prejudice – directions recommended to trial judge to consider giving to the jury – evidence allowed to be submitted – s 137 of the Evidence Act 2011 (ACT)
JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARRESTS, SEARCH, SEIZURE AND INCIDENTIAL POWERS – Search under the warrant invalid – time warrant is in force – specific decision required as to the period during which a warrant is to be in force
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Search and seizure – warrant – whether execution of warrant unlawful – warrant not in force when the search was conducted – falso demonstration quae non nocet – absence of the period of time warrant in force fatal – s 194(5) of the Crimes Act 1900 (ACT)
[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.
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AGLC
R v Thompson (No 3) [2017] ACTSC 53
Case
[2017] ACTSC 53
Decision Date
CaseChat Overview and Summary
The case of R v Thompson (No 3) involved the accused, Andrew Francis Thompson, who faced charges of aggravated burglary and forcible confinement. The dispute centred around the admissibility of certain evidence obtained through a search conducted under a warrant. The matter was brought before the court, which had to decide on the legal issues concerning the evidence's procurement and admissibility. The court was required to consider whether the evidence obtained during the search was improperly or illegally obtained and if it should be excluded under the Evidence Act 2011 (ACT). Additionally, the court had to determine if the evidence was prejudicial and whether it should be excluded under the same Act. The court also had to address the issue of whether the search under the warrant was valid and if the warrant was in force at the time of the search.
The court's reasoning involved a thorough examination of the Evidence Act 2011 (ACT) and the Crimes Act 1900 (ACT). The court found that the evidence in question should not be excluded despite its improper or illegal procurement, as its probative value outweighed the importance of the rules breached. The court considered the gravity of the impropriety, whether it was deliberate or reckless, and the difficulty in obtaining the evidence without impropriety. The court also determined that the evidence in question was not to be excluded under section 138 of the Evidence Act 2011 (ACT). Regarding the prejudicial nature of the evidence, the court found that the issue raised in a pre-trial application was not addressed on appeal. However, the court recommended that the trial judge consider giving the jury certain directions to mitigate any potential unfair prejudice. The court concluded that the evidence should be allowed to be submitted under section 137 of the Evidence Act 2011 (ACT). Furthermore, the court examined the validity of the search under the warrant and found that the warrant was not in force when the search was conducted, rendering the execution of the warrant unlawful.
In light of the findings, the court made several orders. Firstly, the court noted the undertaking of the Crown not to submit that the letters seized during the search constituted an admission that the accused engaged in the conduct which constituted the offences. Secondly, the application by Application in Proceedings dated 2 September 2016 was dismissed. Lastly, the court requested that the judge before whom the trial of Andrew Francis Thompson was to take place consider giving the jury an express direction that the letters referred to in the first order could not constitute an admission to the commission of the offences.
Orders
Orders of the court
1. The undertaking of the Crown is noted, namely not to submit at the trial of the accused, Andrew Francis Thompson, for the offences of aggravated burglary and forcible confinement, that the letters seized during the search of the premises of the accused, Andrew Francis Thompson, on 5 November 2013 constituted an admission that he engaged in the conduct which constituted these offences.
2. The application by Application in Proceedings dated 2 September 2016 be dismissed.
3. The judge before whom the trial of Andrew Francis Thompson for offences of aggravated burglary and forcible confinement be requested to consider giving the jury an express direction that the letters referred to in Order 1 cannot constitute an admission to the commission of those offences.