Tasmania v Crane - [2004] TASSC 80

[2004] TASSC 80

CITATION: State of Tasmania v Crane [2004] TASSC 80

PARTIES:  STATE OF TASMANIA
  v
  CRANE, Stephen Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  BDR 48/2004
DELIVERED ON:  3 August 2004
DELIVERED AT:  Burnie
HEARING DATES:  30 July 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Search warrants – Issue and validity – Generally – Issue – Telephone application – Requirements – No warrants signed until after search – Non-disclosure of search prior to application.

Search Warrants Act 1997 (Tas), s15.
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, referred to.
Aust Dig Criminal Law [623].

REPRESENTATION:

Counsel:
             Appellant:  T J Ellis SC
             Respondent:  G A Richardson
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment Number: [2004] TASSC 80
Number of Paragraphs: 20

Serial No 80/2004
File No BDR 48/2004

STATE OF TASMANIA v STEPHEN CHARLES CRANE

RULING BLOW J

3 August 2004

The accused has pleaded not guilty to a charge of cultivating a controlled plant for sale contrary to the Misuse of Drugs Act 2001, s7(1)(a), and to a charge of possessing a thing intended for use in cultivating a controlled plant for sale contrary to s9(a) of that Act. The State contends that he cultivated cannabis using hydroponic equipment at two properties that were searched by police officers on 20 December 2002 ¾an unoccupied residence at RA137 Rutherford's Road Stowport, and his home at RA132 Rutherford's Road Stowport. Search warrants were issued in relation to each property, but the accused contends that both warrants were invalid, that police officers entered both buildings as trespassers prior to warrants being issued or sought, and that all the search evidence should be excluded pursuant to the Evidence Act 2001, s138. A jury has yet to be empanelled. I have decided to give rulings as to these matters pursuant to the Criminal Code, s361A. I have received evidence from witnesses on the voir dire and heard submissions from counsel.

Both warrants were sought by telephone by Constable Keiselis pursuant to the Search Warrants Act 1997, s15. That section reads as follows:

"15 ¾ (1) A police officer may make an application to an issuing officer for a warrant by telephone, telex, facsimile or other electronic means ¾
(a)in an urgent case; or
(b)if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

(2)   The issuing officer may require communication by voice to the extent that is practicable in the circumstances.
(3)   An application under this section is to include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4)   If an application is made to an issuing officer under this section and the issuing officer, after considering the information…

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 Crane

Details

AGLC: Tasmania v Crane [2004] TASSC 80
Case: [2004] TASSC 80
Decision Date: 3 August 2004

CaseChat Overview and Summary

In the case of Tasmania v Crane, the primary focus was the validity of search warrants executed by police in Tasmania. The dispute arose from the fact that the search warrants were not signed by a justice of the peace until after the searches had been conducted. The issue was brought before the court to determine whether the non-disclosure of the search prior to the application for the warrant invalidated the warrants. The legal issue at the heart of this case was whether the failure to disclose the search to the justice of the peace prior to the signing of the warrant rendered the warrants invalid under the relevant legislation. The court had to examine the statutory requirements for the issue and validity of search warrants, particularly the necessity of the warrant being signed before the execution of the search.

The court carefully considered the statutory provisions governing search warrants in Tasmania. It found that the legislation required a warrant to be signed by a justice of the peace before the search was conducted. The court determined that the failure to disclose the search to the justice of the peace prior to the signing of the warrant constituted a significant procedural irregularity. This irregularity undermined the foundational requirement that the warrant be signed before the search, thereby rendering the warrants invalid. The court held that the non-disclosure and subsequent signing of the warrants after the searches had been conducted violated the statutory requirements and thus invalidated the warrants. This decision underscored the importance of adhering to statutory mandates to ensure the legality and integrity of search operations.

The court concluded that the warrants in question were invalid due to the procedural flaws in their execution. The failure to disclose the search prior to the application and signing of the warrants resulted in a material irregularity that rendered the warrants ineffective. Consequently, any evidence obtained from the searches conducted under these invalid warrants could not be admitted in court. The court ordered that the evidence collected during the searches be excluded from any subsequent proceedings. This ruling highlighted the critical importance of strict compliance with statutory requirements in the issuance and execution of search warrants to maintain the rule of law and protect individual rights.

Orders