R v Vincent; R v Young (No 2) - [2021] ACTSC 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Vincent; R v Young (No 2)
Citation:	[2021] ACTSC 50
Hearing Date:	1 April 2021
DecisionDate:	7 April 2021
Before:	Murrell CJ
Decision:	Application refused.
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility – Pre-trial application – Evidence obtained pursuant to search warrant – Suspicion relating to the commission of multiple offences – Whether applicant acting on unreasonable but genuinely held suspicion amounts to an impropriety – Whether evidence was obtained in consequence of an impropriety – Whether discretion to exclude should be exercised
Legislation Cited:	Crimes Act 1900 (ACT) ss 194, 242 Criminal Code 2002 (ACT) ss 45, 313 Evidence Act 2011 (ACT) s 138, 142
Cases Cited:	Australian Securities and Investments Commission (ASIC) v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327 Briginshaw v Briginshaw (1938) 60 CLR 335 Bunning v Cross (1978) 141 CLR 54 George v Rockett (1990) 170 CLR 104 Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 333 FLR 352 R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 R v Petroulias (No 8) [2007] NSWSC 82; 175 A Crim R 417 R v Vincent [2018] ACTSC 347 Ridgeway v The Queen (1995) 184 CLR 19 Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 Smethurst v Commissioner of Police [2020] HCA 14; 376 ALR 575
Texts cited:	Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020)
Parties:	The Queen ( Crown) Christopher Lee Vincent ( Defendant) Megan Joy Young (Defendant)
Representation:	Counsel K Lee ( Crown) J Purnell SC ( Defendant Vincent) J Pappas (Defendant Young)
Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Defendant Vincent) McKenna Taylor (Defendant Young)
File Number(s):	SCC 100, 103 of 2018 SCC 121, 122, 228 of 2020

MURRELL CJ:

Introduction

Ms Young (the applicant) and Mr Vincent face trial in the week commencing 12 April 2021.

Pursuant to s 138 of the Evidence Act 2011 (ACT) (Evidence Act), the applicant seeks to exclude evidence that stolen property was found at her residence on 27 March 2020, when a search warrant was executed. Mr Vincent supports the application.

The applicant faces nine charges that, between 15 February and 28 March 2020, she was knowingly concerned in the receipt of stolen property, contrary to s 313 of the Criminal Code2002 (ACT) (Criminal Code) (by virtue of s 45 of the Criminal Code).

Mr Vincent faces nine charges of dishonestly receiving stolen property, contrary to s 313 of the Criminal Code. If convicted, he will be in breach of a good behaviour order imposed by Elkaim J on 12 December 2018: R v Vincent [2018] ACTSC 347.

In addition, Mr Vincent is charged with one count of unlawfully possessing stolen property, contrary to s 324 of the Criminal Code.

The Crown case is that,…

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 Vincent; R v Young (No 2)

Details

AGLC: R v Vincent; R v Young (No 2) [2021] ACTSC 50
Case: [2021] ACTSC 50
Decision Date

CaseChat Overview and Summary

The case R v Vincent; R v Young (No 2) was heard before Murrell CJ in the Supreme Court of the Australian Capital Territory. The defendants, Christopher Lee Vincent and Megan Joy Young, face charges related to the receipt of stolen property and drug trafficking. Young sought to exclude evidence of stolen property found at her residence during a search conducted on 27 March 2020, pursuant to a warrant obtained by Detective Sergeant Giles. Vincent supported the application, as did the applicant. The key issue was whether the evidence was obtained in consequence of an impropriety, warranting exclusion under s 138 of the Evidence Act 2011 (ACT). The court considered whether there was an impropriety by Detective Sergeant Giles in applying for the warrant based on an unreasonable suspicion of drug trafficking and whether the evidence was obtained as a consequence of that impropriety.

The court found that, while Detective Sergeant Giles' suspicion of drug trafficking was unreasonable, the mere actioning of an unreasonable suspicion did not amount to an impropriety. There was no evidence that Detective Sergeant Giles acted in bad faith, breached any policy, or protocol. Moreover, even if the suspicion did amount to an impropriety, the evidence of stolen property was not obtained in consequence of the impropriety, as there was a substantial and distinct basis for the search warrant. The court concluded that the probative value and importance of the evidence, coupled with the relatively minor nature of the impropriety, supported the admission of the evidence. The application to exclude the evidence was refused, and the evidence will be admitted at trial.

Orders