Tasmania v Thompson (No 2) - [2022] TASSC 55

[2022] TASSC 55

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Thompson (No 2) [2022] TASSC 55
PARTIES:	STATE OF TASMANIA
v
THOMPSON, Jeffrey Ian
FILE NO:	374/2017
DELIVERED ON:	28 July 2022
DELIVERED AT:	Hobart
HEARING DATES:	21-23 June 2022
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Search warrant invalid on its face for failure to properly specify the alleged offence – Failure by police to fully specify privacy concerns arising from the surveillance devices to the Magistrate determining the issue of the warrant – Conversation covertly recorded between a lawyer and client of potentially privileged nature in prison meeting room – Failure to minimise risk of recording of unrelated private or privileged conversations – Protection of privacy

and public confidence in the administration of criminal justice outweighs desirability of admitting the
impugned evidence – Evidence not admitted.

Evidence Act 2001, s 138.
Listening Devices Act 1991, s 5(2)(ba).
Police Powers (Surveillance Devices) Act 2006, ss 8, 9, 11.

Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece; Director of Public

Prosecutions v Preece [2011] VSCA 355, 219 A Crim R 344, 33 VR 440, Em v R [2007] HCA 46;
(2007) 232 CLR 67, followed.

AB v CD; EF v CD [2018] HCA 58, Ahern v The Queen (1988) 165 CLR 87, 80 ALR 161, 34 A Crim R 175,

Kadir v The Queen [2020] HCA 1, 267 CLR 109, referred to.

Aust Dig Criminal Law [2684]

REPRESENTATION:

Counsel:

Appellant: L Mason SC, E Bill
Respondent: D Edwardson QC, F Merenda,

Solicitors:

Appellant: Director of Public Prosecutions
Respondent: Munro and Associates

Judgment Number:	[2022] TASSC 55
Number of paragraphs:	38

Serial No 55/2022 File No 374/2017

STATE OF TASMANIA v JEFFREY IAN THOMPSON

REASONS FOR RULING

BRETT J
28 July 2022

1 This ruling concerns the second step in the process required by s 138 of the Evidence Act to determine the defence objection to the admission of the recording of the conversation between the accused and Stephen Gleeson, conducted in a professional meeting room at Risdon Prison on 16 June 2017. The basis of the objection is that the covert recording of the conversation was in contravention of an Australian law, and that the proper application of s 138 of the Evidence Act requires that the evidence be excluded. That provision provides that evidence obtained in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way. My ruling of 28 March 2022 established that the recording of the conversation was obtained in contravention of an Australian law, in particular s 5 of the Listening Devices Act 1991. That conclusion followed from my determination that the warrant…

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 Thompson (No 2)

Details

AGLC: Tasmania v Thompson (No 2) [2022] TASSC 55
Case: [2022] TASSC 55
Decision Date: 28 July 2022

CaseChat Overview and Summary

Tasmania appealed against the decision to exclude evidence obtained from an allegedly invalid search warrant. The warrant, issued to search for and seize items related to illegal drug activity, was executed by police entering a prison where they covertly recorded a conversation between a lawyer and his client. The client was subsequently charged with conspiracy to import a commercial quantity of cocaine. The issue was whether the warrant was invalid due to a failure to properly specify the alleged offence, and whether the evidence obtained was improperly obtained or otherwise unfair to admit.

The Court considered whether the warrant was invalid because it did not properly specify the alleged offence, and whether the evidence was obtained in a way that made it unfair to admit. The Court found that the warrant was invalid because it did not properly specify the alleged offence, and the evidence obtained was therefore inadmissible. The Court found that the warrant did not specify the particular offence in sufficient detail, and that this was a failure to comply with statutory requirements. The Court also found that the evidence obtained was improperly obtained because the police failed to properly specify the privacy concerns arising from the covert recording to the Magistrate determining the issue of the warrant. The Court found that the police failed to minimise the risk of recording unrelated private or privileged conversations, and that the protection of privacy was therefore inadequate.

The appeal was allowed, and the evidence obtained was excluded. The Court found that the warrant was invalid, and that the evidence obtained was therefore inadmissible. The Court also found that the evidence was improperly obtained because the police failed to properly specify the privacy concerns arising from the covert recording to the Magistrate determining the issue of the warrant. The Court found that the police failed to minimise the risk of recording unrelated private or privileged conversations, and that the protection of privacy was therefore inadequate. The Court held that the evidence obtained was therefore unfair to admit, and that it should be excluded from any criminal proceeding.

Orders