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Slater (a Pseudonym) v The Queen

Slater (a Pseudonym) v The Queen

Case [2019] VSCA 213 26 September 2019

Interlocutory Orders

Admissibility of Evidence

Judicial Review

Criminal Law

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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…

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 Slater (a Pseudonym) v The Queen

Details

AGLC: Jodie Slater (a pseudonym) v The Queen [2019] VSCA 213
Case: [2019] VSCA 213
Decision Date: 26 September 2019

CaseChat Overview and Summary

In Slater (a Pseudonym) v The Queen, the applicant appealed against an interlocutory ruling that excluded evidence obtained as a consequence of an illegal search of a vehicle driven by the applicant’s partner. The evidence was deemed inadmissible under the Evidence Act 2008 s 138, which requires the exclusion of evidence obtained in consequence of a contravention of the law. The illegal search led to the discovery of evidence against the partner, which subsequently brought the applicant to the attention of police. Several months later, a lawful search warrant was executed at the home of the applicant and the partner, leading to the discovery of evidence against the applicant. The central legal issue was whether the judge erred in admitting the evidence obtained against the applicant under s 138.

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