Legal Research
Cases
Tasmania v Salter

Tasmania v Salter

Case [2007] TASSC 33 14 December 2006

Type to search within this case.

[2007] TASSC 33

CITATION: Tasmania v Salter [2007] TASSC 33

PARTIES:  TASMANIA, State of
  v
  SALTER, Barry Douglas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  252/2006
DELIVERED ON:  14 December 2006
DELIVERED AT:  Hobart
HEARING DATE:  11 December 2006
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Warrants, arrests, search, seizure and incidental powers – Warrants – Search warrants – Issue and validity – Generally – Whether susceptible to collateral challenge for insufficiency of material before issuing officer.

McArthur v Williams (1936) 55 CLR 324; Murphy v R (1989) 167 CLR 94; Ousley v R (1997) 192 CLR 69; Question of Law Reserved on Acquittal (2000) 111 A Crim R 75, referred to.
Aust Dig Criminal Law [623]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Assessment of whether the desirability of admitting evidence outweighs the undesirability of its admission is a balancing exercise.

Evidence Act 2001 (Tas), s138.

Aust Dig Criminal Law [423]

REPRESENTATION:

Counsel:
State:  M P Shirley
             Accused:  G A Richardson
Solicitors:
State:  Director of Public Prosecutions

Accused: G A Richardson

Judgment Number: [2007] TASSC 33
Number of paragraphs: 18

Serial No 33/2007
File No 252/2006

STATE OF TASMANIA v BARRY DOUGLAS SALTER

REASONS FOR JUDGMENT EVANS J

14 December 2006

Following the empanelment of a jury to try the accused on 11 December 2006, I dealt with an application by the accused to rule certain evidence inadmissible. I rejected the application and said that I would publish my reasons for doing so later. These are the reasons.

The accused was charged with trafficking in MDMA and trafficking in LSD. At the core of the prosecution's case was evidence that on 20 January 2005 when police officers entered a residence at 2 Osprey Road, Claremont they found the accused with 490 MDMA tablets, commonly known as Ecstasy and in the course of searching at that residence also located 63 LSD tickets.

Plainly that evidence was relevant. On behalf of the accused it was submitted that the evidence should not be admitted as it was obtained improperly or in contravention of an Australian law or in consequence of the same. That application invoked the Evidence Act 2001, s138, which replaces the common law rule as to the exclusion of improperly or illegally obtained evidence. As the party seeking to exclude the evidence, the onus was on the accused to establish the impropriety or contravention upon which he relied, see R v Coulstock (1998) 99 A Crim R 143; R v W J Eade [2000] NSWCCA 369 at [60]. On that onus being met, the evidence could not be admitted unless the State, the party seeking its admission, satisfied the Court that the desirability of admitting the evidence outweighed the undesirability of admitting it, given the way in which the evidence was obtained.

The accused's mother resided at 2 Osprey Road,…

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 Salter

Details

AGLC: Tasmania v Salter [2007] TASSC 33
Case: [2007] TASSC 33
Decision Date: 14 December 2006

CaseChat Overview and Summary

In the case of Tasmania v Salter, the defendant was charged with various drug-related offences following a police raid on his premises. The police executed the raid pursuant to a search warrant issued by a Justice of the Peace. The defendant subsequently sought to have the search warrant and the evidence obtained through it excluded on the basis that the warrant was issued without sufficient evidence before the issuing officer. The matter was brought before the Supreme Court of Tasmania, which had to determine the validity of the search warrant and whether it was subject to collateral attack for insufficiency of material before the issuing officer.

The primary legal issue before the court was whether a search warrant, once issued, is immune from collateral attack for insufficiency of material before the issuing officer. The court had to consider whether the warrant was subject to such a challenge and, if so, whether the warrant in question was issued with sufficient evidence. The court also needed to address whether the exclusionary rule, which prevents the admission of evidence obtained through an unlawful search, applied in this context.

The court held that a search warrant is not generally subject to collateral attack for insufficiency of material before the issuing officer. The court reasoned that the warrant's validity is determined at the time of its issue and that challenging it after the fact would undermine the stability and finality of legal proceedings. Furthermore, the court found that the warrant in question was issued with sufficient evidence, as the issuing officer had considered the available information and made a reasonable decision to issue the warrant. Consequently, the evidence obtained through the search was admissible in the defendant's trial. The court dismissed the defendant's application to exclude the evidence and the matter proceeded to trial.

The court's final orders were that the defendant's application to exclude the evidence obtained through the search warrant was dismissed, and the evidence remained admissible in the trial. The defendant's challenge to the validity of the search warrant on the grounds of insufficiency of material before the issuing officer was also dismissed.

Orders