SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0032
| JODIE SLATER (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | McLEISH and WEINBERG JJA and TINNEY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2019 |
| DATE OF JUDGMENT: | 26 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 213 |
| RULING APPEALED FROM: | Director of Public Prosecutions v [Slater] (Unreported, County Court of Victoria, Judge Lyon, 11 February 2019) |
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CRIMINAL LAW – Interlocutory appeal – Exclusion of improperly or illegally obtained evidence – Evidence Act 2008 s 138 – Vehicle driven by applicant’s partner illegally searched – Evidence of search and evidence subsequently obtained against partner ruled inadmissible in proceeding against partner – Telephone calls while partner in custody bringing applicant to attention of police – Search warrant lawfully executed at home of applicant and partner several months after illegal search of vehicle – Investigations into applicant and partner closely entangled – Evidence against applicant obtained at home obtained in consequence of contravention of law – Judge held desirability of admitting evidence outweighed undesirability of admitting evidence obtained in consequence of contravention of law – Whether House v The King (1936) 55 CLR 499 applies to appeal on balancing under s 138 – Whether judge erred in concluding causal link attenuated by remoteness of illegal search from obtaining of evidence – Whether judge erred in treating as irrelevant alleged police attempt to conceal consequences of impropriety or contravention – Tasmania v Crane (2004) 148 A Crim R 346, R v Hunt (2014) 286 FLR 59, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis QC with Mr M P Allen | Galbally & O’Bryan |
| For the Crown | Mr M Gibson QC with Mr Y Hardjadibrata | Mr J Cain, Solicitor for Public Prosecutions |
McLEISH JA
WEINBERG JA
TINNEY AJA:
On 11 January 2014, police intercepted a vehicle being driven by George Brown[1] on the Nepean Highway. They ascertained that Brown’s driver’s licence was suspended and that he had a prior conviction for driving while suspended. He was arrested and told that his vehicle would be impounded under s 84F of the Road Safety Act 1986.
[1]To avoid prejudice to the pending trial of the applicant, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and her partner.
The vehicle needed to be moved to the service lane. This was done by one of the arresting officers, Constable Griffiths. While paperwork was being completed, she offered to assist Brown, who was on crutches, to remove valuables from the vehicle pending its impoundment. He agreed to this being done. In the course of this process, Constable Griffiths looked at and removed various items from the vehicle. In particular, she noticed three cigarette packets on the passenger seat and shook them to see if they were empty or full. She opened one, without asking Brown’s permission, and saw a snap lock bag containing a white crystalline substance which was later found…
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- AGLC
- Jodie Slater (a pseudonym) v The Queen [2019] VSCA 213
- Case
- [2019] VSCA 213
- Decision Date
CaseChat Overview and Summary
The court examined whether the House v The King principle applies to the balancing test under s 138 and whether the judge correctly assessed the causal link between the illegal search and the evidence obtained against the applicant. The court found that the judge did not err in concluding that the causal link was attenuated by the remoteness of the illegal search from the obtaining of the evidence against the applicant. The court further determined that the judge was correct in treating as irrelevant the alleged police attempt to conceal the consequences of the impropriety or contravention. The case law of Tasmania v Crane and R v Hunt was applied to support the court's reasoning.
The court ultimately upheld the interlocutory ruling, holding that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in consequence of a contravention of the law. The appeal was dismissed, and the evidence obtained against the applicant remained inadmissible. The case underscores the importance of the balancing test under s 138 and the factors that a judge must consider in determining whether to admit evidence obtained in consequence of a contravention of the law.
Orders
Orders of the court
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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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