R v Gallagher; R v Burridge [2015] NSWCCA 228

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Gallagher; R v Burridge [2015] NSWCCA 228 Hearing dates: 10 August 2015 Date of orders: 26 August 2015 Decision date: 26 August 2015 Before: Gleeson JA at [1] Adams J at [2] Beech-Jones J at [3] Decision: (1) The appeal be allowed;

(2) The ruling of Jeffreys DCJ made on 17 December 2014 be set aside; and

(3) Subject to considering any further objection to the admissibility of any admissions made by either of the Respondents, the evidence obtained during and as a result of the execution of the search warrants on 185 and 187 Stuart Road, Lawrence on 6 March 2012 be admitted at the trial of the Respondents. Catchwords: APPEAL – appeal by DPP under s 5F(3A) against evidentiary ruling – primary judge excluded evidence of search of property that located cannabis plantation – Evidence Act, s 138 – primary judge found that information that led to search warrant was obtained as a result of a trespass by police officer – ruling excluded entirety of Crown case – scope of implied licence for persons to enter upon premises – whether police officer authorised to traverse property in exercise of "crime scene" powers – primary judge found contravention of law involved substantial gravity – primary judge found police officer acted recklessly – primary judge held balancing of factors in s 138(1) warranted rejection of evidence. HELD: in locating irrigation pipe leading to cannabis plantation police officer acting outside scope of any implied licence – police officer not exercising crime scene powers as did not form state of mind necessary for their exercise- challenge to finding of unlawful trespass by police officer rejected – challenge to exercise of discretion upheld – no basis for finding police officer acted recklessly – not open to find contravention involved substantial gravity – evidence admitted. Legislation Cited: - Criminal Appeal Act 1912 – s 5F(3A) - Drug Misuse and Trafficking Act 1985 – s 25(1) - Evidence Act 1995 – s 138(1) - Firearms Act 1996 – s 7A(1), s 19 - Law Enforcement (Powers and Responsibilities) Act 2002 – s 5F(3A), s 47(1), s 88 Cases Cited: - Australian Securities & Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327 - Bunning v Cross [1978] HCA 22; 141 CLR 54 - Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 219 A Crim R 344 - Dowse v State of New South Wales [2012] NSWCA 337 - Fleming v The Queen [2009] NSWCCA 233; 197 A Crim R 282 - Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 - Halliday v Nevill [1984] HCA 80; 155 CLR 1 - House v The King [1936] HCA 40; 55 CLR 499 - O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 - Parker v Comptroller General of Customs [2007] NSWCA 348 - R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 - R v Helmout [2001] NSWCCA 372; 125 A Crim R 257 - State of NSW v McCarthy [2015] NSWCA 153 Texts Cited: - Evidence (ALRC Report 26, 1985) Category: Principal judgment Parties: Crown – Prosecutor Mark Gallagher – Applicant in 2012/073960 Lynn Maree Burridge – Applicant in 2012/073950 Representation: Counsel: H. Baker – Crown P. O'Connor – Gallagher B. Cochrane – Burridge