Tasmania v Billinghurst (No 1) - [2018] TASSC 3

[2018] TASSC 3

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Billinghurst (No 1) [2018] TASSC 3

PARTIES:  STATE OF TASMANIA
  v
  BILLINGHURST, Gary Maxwell
  JONES, Adam Arnold
  LEAMAN, Christopher Adam

FILE NOS: 341/2013

420/2013
86/2014

DELIVERED ON: 13 November 2017
DELIVERED AT: Hobart

HEARING DATES: 24-27, 30, 31 October, 1-3, 6-10, 13-17, 20-24,

27-30 November, 1, 4-8, 11 December 2017

JUDGMENT OF: Estcourt J

EDITED VERSION OF RULING DELIVERED ORALLY

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Voir dire proceedings – Particular cases – Whether improper use of a power conferred by statute – Whether use of a random breath testing site to stop vehicle suspected of carrying illicit substances permitted – Whether evidence found is admissible – No contravention or impropriety – Evidence admissible.

Evidence Act 2001 (Tas), s 138
Search Warrants Act1997 (Tas), s 16
Misuse of Drugs Act 2001 (Tas), s 29
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 7A
Ridgeway v The Queen (1995) 184 CLR 19, followed.
Aust Dig Criminal Law [2686]

REPRESENTATION:

Counsel:

Crown:  A Shand, A Norton
           Mr Billinghurst:  J Crotty
           Mr Jones:  T Kovacic
           Mr Leaman:  K Baumeler

Solicitors:

Crown:  Director of Public Prosecutions
           Mr Billinghurst:  Crotty Legal
           Mr Jones:  Legal Aid Commission of Tasmania
Mr Leaman:  Legal Aid Commission of Tasmania

Judgment Number: [2018] TASSC 3
Number of paragraphs: 28

Serial No: 3/2018
File Nos: 341/2013 86/2014

STATE OF TASMANIA v GARRY MAXWELL BILLINGHURST,
ADAM ARNOLD JONES and CHRISTOPHER ADAM LEAMAN (NO 1)

REASONS FOR RULING DURING TRIAL ESTCOURT J

13 November 2017

The State seeks to lead evidence that at about 10.30pm on 25 April 2015 police seized two small bags of amphetamine of about 1 ounce each from an Eski located in the boot of a red Holden Commodore vehicle A71 XE which was intercepted by police while being driven on Main Street, Perth, by Peter James Collins also known as Roles.
Objection is taken to the admission of the evidence on behalf of the accused Jones. The objection is confined to s 138 of the Evidence Act 2001. The relevant part of that section provides:
"138 Discretion to exclude evidence improperly or illegally obtained
(1)   Evidence that was obtained —
(a)   improperly or in contravention of an Australian law; or
(b)   in consequence of an impropriety or of a contravention of an Australian law —
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."
The words "improperly" and "impropriety" in that section are not defined and should be given their ordinary meanings.
The request for the interception of the vehicle was made by Senior Constable Roy Cummings who was involved in Operation Vouch investigating the three accused in this case, and was made to then Senior Sergeant Joanne Stolp of Western Drug Investigation Services. She, in conjunction with…

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 Tasmania v Billinghurst (No 1)

Details

AGLC: Tasmania v Billinghurst (No 1) [2018] TASSC 3
Case: [2018] TASSC 3
Decision Date: 13 November 2017

CaseChat Overview and Summary

The Tasmanian Supreme Court heard a case involving the admissibility of evidence obtained through an alleged illegal stop of a vehicle. The respondent, Billinghurst, was suspected of carrying illicit substances and was stopped at a random breath testing site. Tasmania contended that the evidence obtained during the stop should be admitted, while Billinghurst argued that the stop was unlawful and that the evidence should be excluded. The court was tasked with determining whether the police officer's actions in using a random breath testing site to stop the vehicle were permissible and whether the evidence obtained was admissible.

The central legal issue before the court was whether the police officer's use of a random breath testing site to stop a vehicle suspected of carrying illicit substances was a permissible exercise of the power conferred by statute. The court had to consider whether the officer's actions were in contravention of any statutory provisions or were otherwise improper. Additionally, the court needed to assess whether the evidence obtained during the stop should be admitted into the proceedings, given the circumstances of its acquisition.

The court found that the police officer's actions were not in contravention of any statutory provisions and were, therefore, not improper. The court held that the use of a random breath testing site to stop a vehicle suspected of carrying illicit substances was an acceptable exercise of the power conferred by statute, provided that the officer had reasonable grounds to suspect the presence of illicit substances. The court concluded that the evidence obtained during the stop was admissible, as there was no contravention or impropriety in the manner in which it was obtained.

The court ordered that the evidence obtained during the stop of the vehicle be admitted into the proceedings. The court found that there was no basis to exclude the evidence on the grounds that it was obtained through an unlawful or improper exercise of statutory power. The court's decision effectively upheld the admissibility of the evidence, allowing the prosecution to proceed with the case against Billinghurst.

Orders