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R v Tracey (No 3)

R v Tracey (No 3)

Case [2005] SASC 357 22 September 2005

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v TRACEY & ORS (NO 3)
Reasons for Ruling of The Honourable Justice Nyland
22 September 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application for exclusion of evidence obtained by use of listening devices - complaint that listening device warrants substantially differed from form prescribed by Rules – whether non-compliance or inconsistency with form invalidated warrants – whether invalidity due to failure to state essential matters – whether invalidity due to failure to comply with s 6(7) of the L&SD Act – whether invalidity for uncertainty and inconsistency - whether renewals or fresh applications – presumption as to regularity - no term implied in Act to make the validity of warrants dependent upon the Rules– trivial or minor non-compliance with form did not result in the invalidity of the warrant – finding that warrants valid on their face – application to exclude listening device evidence refused.
Crown Proceedings Act 1992 (SA) s 9(2); Acts Interpretation Act 1915 (SA) ss 26 and 34; Listening Devices Act 1972 (SA) ss 4, 5 and 6; Listening and Surveillance Devices Act 1972 (SA) ss 4, 5, 6 and 12; Regulations under Listening and Surveillance Devices Act 1972 Amendment Nos 226 of 2002 and 207 of 2003; Supreme Court Act 1935 (SA) Listening Devices Rules 4 and 5, Form A; Listening Devices (Miscellaneous) Amendment Act 2001 (SA) ss 4, and 5, referred to.
Ousley v The Queen (1997) 192 CLR 69, applied.
George v Rockett & Anor (1990) 170 CLR 104; Halliday v Nevill & Anor (1984) 155 CLR 1; Garwood v Schultz [1982] Tas R 120; Carroll & Ors v Mijovich & Ors (1991) 58 ACrimR 243; Cassaniti v Croucher & Ors (2000) 48 NSWLR 623; Ozzie Discount Software (Aust) Pty Ltd v Muling & Ors (1996) 86 ACrimR 387; Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; Karina Fisheries Pty Ltd & Ors v Mitson & Ors (1990) 26 FCR 473; Bunning v Cross (1978) 141 CLR 52; R v Lobban (2000) 77 SASR 24, discussed.
Tran Nominees v Scheffler (1986) SASR 361; Commissioner of Police v Barbaro & Ors (2001) 119 ACrimR 143; Tran Nominees v Scheffler (1986) 42 SASR 382; R v Eade (2000) 118 ACrimR 449; Barbaro v Director of Public Prosecutions (1999) 49 NSWLR 68; R v Gillard and Preston (1998) 200 LSJS 350; R v Gilard and Preston [2000] SASC J/No 454 (unreported); R v Bunting and Wagner (No 4) (2003) 231 LSJS 1, considered.

R v TRACEY & ORS (NO 3)
[2005] SASC 357
Voir Dire Ruling as to validity of Listening Device Warrants:
1 The accused John Tracey and Joshua Considine have each filed a Rule 9 notice seeking the exclusion of evidence obtained by the police as a result of the use of listening devices…

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 Tracey (No 3)

Details

AGLC: R v Tracey (No 3) [2005] SASC 357
Case: [2005] SASC 357
Decision Date: 22 September 2005

CaseChat Overview and Summary

The case of R v Tracey (No 3) involved a dispute over the admissibility of evidence obtained through the use of listening devices. The matter was heard in a court of criminal jurisdiction in Australia. The primary issue before the court was whether evidence obtained via listening devices should be excluded due to alleged irregularities in the warrants that authorised their use. Specifically, the defence argued that the warrants were invalid because they did not strictly comply with the prescribed form as outlined in the relevant statutory Rules. The court was required to determine whether the non-compliance with the warrant form invalidated the warrants, and if the invalidity stemmed from the failure to state essential matters or from the failure to comply with section 6(7) of the relevant legislation.

The court examined whether the warrants were invalid due to uncertainty and inconsistency, and whether this invalidity could be remedied through renewals or fresh applications. A key consideration was the presumption of regularity attached to the warrants. The court concluded that no term should be implied in the relevant Act to make the validity of warrants dependent upon compliance with the Rules. The court also held that trivial or minor non-compliance with the form of the warrant did not result in the invalidity of the warrant. On the basis that the warrants were valid on their face, the court found no grounds to exclude the evidence obtained through the use of the listening devices. The application to exclude the evidence was therefore refused.

This decision reinforces the principle that trivial non-compliance with statutory forms for warrants does not invalidate them, provided the warrants are otherwise valid. The court's ruling highlights the importance of ensuring that warrants comply with the statutory requirements, but also acknowledges that minor deviations do not necessarily render a warrant invalid. The outcome of this case is significant for ensuring that evidence obtained through lawful means is not unfairly excluded from criminal proceedings, while maintaining the integrity of the warrant process.

Orders