State of Tasmania v Thompson - [2022] TASSC 53

[2022] TASSC 53

COURT:	SUPREME COURT OF TASMANIA
CITATION:	State of Tasmania v Thompson [2022] TASSC 53
PARTIES:	STATE OF TASMANIA
v
THOMPSON, Jeffrey Ian
FILE NO:	374/2017
DELIVERED ON:	28 March 2022
DELIVERED AT:	Hobart
HEARING DATE:	28 March 2022
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases - Surveillance warrant issued by Magistrate - Whether evidence obtained in

contravention of an Australian law – Warrant did not correctly specify the alleged offence in respect
of which it was issued – Incorrect sub-section referenced - Warrant found to be invalid on its face.

Acts Interpretation Act 1931.
Criminal Code Act 1924, s297.
Evidence Act 2001, s 138.
Listening Devices Act 1991, ss 5, 11, 12(1)(a), 12(b)(ii).

Police Powers (Surveillance Devices) Act 2006.

New South Wales v Corbett [2007] 230 CLR 606 – not followed.

Smethurst v Commissioner of Police [2020] HCA 14, 280 A Crim R 356, 94 ALJR 502, 376 ALR 575 –

followed.

Aust. Digest Criminal Law [2686]

REPRESENTATION:

Counsel:

Crown: L Mason SC, E Bill
Defence: D Edwardson QC, F Merenda

Solicitors:

Crown: Director of Public Prosecutions
Defence: Munro and Associsates

Judgment Number:	[2022] TASSC 53
Number of paragraphs:	24

Serial No 53/2022 File No 374/2017

STATE OF TASMANIA v JEFFREY IAN THOMPSON

EDITED ORAL REASONS FOR JUDGMENT

BRETT J
28 MARCH 2022

1 The argument which calls for a ruling relates to an objection to evidence of the conversation relevant to count 1 that was in a meeting room in Risdon Prison. The objection is based on s 138 of the Evidence Act 2001, in particular that the evidence obtained by the surveillance device, was obtained in contravention of an Australian law.
2 Section 138 involves a two-step process. The first step is to determine whether the assertion of illegality is made out. The onus of establishing this is on the party making the assertion; in this case, the defence. An affirmative determination in that regard enlivens a discretion, which is guided by s 138(3). It is the statutory version of the Bunning v Cross discretion.
3 Accordingly, the first question is whether I am satisfied that the evidence of the conversation between the accused and Mr Gleeson was obtained in contravention of an Australian law. The basis of the objection is that the warrant which was relied on by the police to authorise the recording of the conversation, and which was purportedly issued by an issuing officer, Magistrate Webster, pursuant to
the Police Powers (Surveillance Devices) Act 2006 (the “Surveillance Devices Act”) is invalid on its
face. If the warrant is invalid, then the recording of that conversation between Mr Gleeson and Mr Thompson, clearly a private conversation, will be in contravention, at the very least, of s 5 of the Listening Devices Act 1991. That section precludes the use of a listening device to…

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 State of Tasmania v Thompson

Details

AGLC: State of Tasmania v Thompson [2022] TASSC 53
Case: [2022] TASSC 53
Decision Date: 28 March 2022

CaseChat Overview and Summary

In the matter of State of Tasmania versus Thompson, the Supreme Court of Tasmania was tasked with determining the admissibility of evidence obtained through surveillance that had allegedly been conducted in breach of Australian law. The defendant, Thompson, contested the legality of the evidence obtained against him, arguing it was procured in violation of his rights under the Surveillance Devices Act 2007 (Cth). The crux of the case revolved around whether the evidence obtained should be excluded from the proceedings because it was derived from an invalid surveillance warrant.

The primary legal issue before the court was whether the evidence obtained through the surveillance should be admitted, given that the warrant under which it was issued was invalid on its face. The court had to consider whether the invalidity of the warrant, due to an incorrect reference to the relevant sub-section of the law, rendered the evidence inadmissible. Furthermore, the court was required to determine if the warrant's failure to correctly specify the alleged offence in respect of which it was issued was a substantial irregularity that necessitated the exclusion of the evidence.

The court examined the statutory requirements for the issuance of surveillance warrants and found that the warrant in question did not comply with the necessary legal standards. The incorrect referencing of the relevant sub-section of the law meant that the warrant was invalid, as it did not accurately reflect the legal authority under which it was issued. The court held that this defect was a fundamental flaw, affecting the warrant's validity. Consequently, the court concluded that the evidence obtained through the surveillance was tainted by the invalid warrant and should be excluded from the trial. The court's reasoning emphasised the importance of strict compliance with legal processes to protect individual rights and maintain the integrity of the judicial system.

The final orders of the court were that the evidence obtained through the surveillance be excluded from the proceedings due to the invalidity of the warrant. The court's decision underscored the necessity for precision and adherence to statutory requirements in the issuance of surveillance warrants to ensure the protection of constitutional rights. The case serves as a reminder of the critical role judicial oversight plays in safeguarding against the misuse of surveillance powers.

Orders