Tasmania v Billinghurst (No 2) - [2018] TASSC 4

[2018] TASSC 4

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Billinghurst (No 2) [2018] TASSC 4

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

FILE NOS: 341/2013

420/2013
86/2014

DELIVERED ON:  22 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 – Evidence unfair to admit or improperly obtained – Particular cases – Whether police conduct undermined entitlement of occupier to observe search – Whether evidence of drugs and drug paraphernalia found during search should be excluded – No such impropriety found – Application to exclude evidence declined.

Search Warrants Act 1997 (Tas), ss 7, 13, 19.
Evidence Act 2001 (Tas), s 138.
State of Tasmania v Seabourne [2010] TASSC 35 ; Tasmania v Bott [2015] TASSC 13, considered.
Aust Dig Criminal Law [2683]

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 4
Number of paragraphs: 24

Serial No: 4/2018
File Nos: 341/2013
420/2013
86/2014

STATE OF TASMANIA v GARRY MAXWELL BILLINGHURST,
ADAM ARNOLD JONES and CHRISTOPHER ADAM LEAMAN (NO 2)

REASONS FOR RULING DURING TRIAL ESTCOURT J

22 November 2017

The accused Jones (the accused) seeks the exclusion of the evidence of a search, and the items found, at 560 Mount Lloyd Road, Mount Lloyd from about 6am on 4 September 2013, on the basis that he was not permitted to observe the search. I have taken the evidence of officers of Tasmania Police and the accused relevant to the objection on a voir dire, and I have been provided by counsel with written submissions on the issues arising under s 13 of the Search Warrants Act 1997 and s 138 of the Evidence Act 2001.
Section 13 of the Search Warrants Act provides:
"13 Occupier entitled to be present during search
(1)   If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the premises, the occupier or other person is entitled to observe the search being conducted.
(2)   The right to observe the search being conducted ceases if the occupier or other person impedes the search.
(3)   This section does not prevent 2 or more areas of the premises being searched at the same time."
The relevant part of s 138 of the Evidence Act 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…

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 2)

Details

AGLC: Tasmania v Billinghurst (No 2) [2018] TASSC 4
Case: [2018] TASSC 4
Decision Date: 22 November 2017

CaseChat Overview and Summary

The Tasmanian Court of Appeal was presented with an appeal from a decision to deny an application to exclude evidence obtained during a search of premises. The applicant, Billinghurst, sought to exclude evidence of drugs and drug paraphernalia found during a search, alleging that the police conduct during the search was improper and unfair. The Court of Appeal was tasked with determining whether the police conduct during the search of the premises undermined the occupier's entitlement to observe the search, and whether the evidence obtained should be excluded.

The court examined the legal principles surrounding the admissibility of evidence obtained through police conduct that may be considered unfair or improperly obtained. The court noted that while the police have a duty to conduct searches in a manner that respects the rights of the occupier, the mere fact that the occupier was not present or did not observe the search does not necessarily render the evidence inadmissible. The court also considered the circumstances of the search and the extent to which the police conduct departed from what could be considered reasonable and fair.

After considering the evidence and arguments presented, the court found that the police conduct during the search did not undermine the occupier's entitlement to observe the search, and that there was no impropriety in the conduct of the police. The court further found that the evidence obtained during the search was relevant and admissible, and that there were no grounds to exclude it. The appeal was dismissed, and the decision to admit the evidence was upheld.

The court's decision highlights the importance of police conduct during searches and the need for police to respect the rights of occupiers. However, the court also emphasised that the mere absence of an occupier or their failure to observe the search does not automatically render the evidence inadmissible. The court's decision in this case provides guidance to police and legal practitioners on the admissibility of evidence obtained through searches, and the standards of conduct expected of police during such searches.

Orders