Tasmania v Hodges - [2022] TASSC 45

[2022] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Hodges [2022] TASSC 45

PARTIES:  STATE OF TASMANIA
  v
  HODGES, Shaun Edward

FILE NO:  860/2019
DELIVERED ON:  27 October 2021
PUBLISHED ON:  26 July 2022
DELIVERED AT:  Hobart
HEARING DATE:  27 October 2021
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Circumstantial drug trafficking case – Evidence improperly obtained during search of private premises – Desirability of admitting the evidence outweighs the undesirability of admitting the evidence – Evidence admitted.

Evidence Act 2001 (Tas), s 138.
Misuse of Drugs Act2001 (Tas), s 29.
DPP v Marijancevic [2011] VSCA 355, 219 A Crim R 344, referred to.
George v Rockett (1990) 170 CLR 104; Samoukovic v Brown [1993] TASSC 78, considered.
Roy v O'Neill [2020] HCA 45, 385 ALR 187, applied.
Aust Dig Criminal Law [2684]

REPRESENTATION:

Counsel:
             State:  M Allen
             Accused:  J Sawyer
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Derwent and Tamar Chambers

Judgment Number: [2022] TASSC 45
Number of paragraphs: 39

Serial No 45/2022
File No 860/2019

STATE OF TASMANIA v SHAUN EDWARD HODGES

REASONS FOR RULING BRETT J

27 October 2021

The accused has been charged with one count of trafficking in controlled substances, in particular cocaine, methylamphetamine and diazepam. The case against him is asserted on a Giretti basis, in that he carried on a trafficking business between 14 January and 17 July 2019. The prosecution case as to the existence of that business is substantially circumstantial. It relies upon an inference of guilt arising from the following evidence:
(a) During a search conducted by police on 12 July 2019 of a holiday apartment that had been rented by the accused for the two preceding nights, police found quantities of cocaine, methylamphetamine and diazepam, as well as a significant amount of cash and other paraphernalia consistent with drug trafficking. None of the drugs found on this occasion constituted a trafficable quantity.
(b) During the same search, police located a mobile telephone apparently in the possession of the accused. Several messages downloaded from the telephone are consistent with the conduct of a drug trafficking business over the period alleged in the indictment.
(c) On 17 July 2019, a vehicle being driven by the accused was stopped by police and searched. Police located a further quantity of cocaine, a significant amount of cash and further paraphernalia, including a tick sheet. A mobile telephone was also located on this occasion, with further messages consistent with drug trafficking. Again, the quantity found in the car was less than a trafficable quantity.
The accused was interviewed by police after each search. He admitted possession of some of the drugs for the purpose of personal use only, but did not admit selling or trafficking in drugs.
The defence objects to the admission of any evidence arising from either search. This includes, of course, the drugs as well as the mobile telephones and the messages contained in them.…

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 Hodges

Details

AGLC: Tasmania v Hodges [2022] TASSC 45
Case: [2022] TASSC 45
Decision Date: 27 October 2021

CaseChat Overview and Summary

Tasmania faced Hodges in a criminal case centred on allegations of drug trafficking. The dispute revolved around the admissibility of evidence obtained during a search of Hodges' private premises. The matter was brought before the court to determine whether the evidence should be admitted, given the circumstances of its procurement. The primary legal issue before the court was whether the evidence, which was gathered in a manner that could be deemed improper, should be admitted into the trial. The court had to weigh the desirability of admitting the evidence against the undesirability of admitting evidence that was obtained in a way that may have infringed upon Hodges' legal rights. After careful consideration, the court ruled that the benefits of admitting the evidence outweighed the drawbacks. The court found that, despite the manner in which the evidence was obtained, its probative value was significant enough to justify its inclusion in the trial. Consequently, the court admitted the evidence, determining that it was in the interests of justice to do so. This decision allowed the prosecution to proceed with its case, potentially strengthening its position against Hodges.

Orders