R (Cth) v Petroulias (No. 8) [2007] NSWSC 82

R (Cth) v Petroulias (No. 8) [2007] NSWSC 82

The Accused did not establish impropriety under s.138 Evidence Act 1995. Although some information in the warrant applications concerning 'total tax wipe out' and revenue calculations was inaccurate or excessive, the inaccuracies arose inadvertently and in good faith from imperfect understanding, complex technical matters and incomplete information, not from deliberate, intentional or reckless conduct by Mr O'Neill, ATO officers or AFP investigators. The conduct was not clearly or quite inconsistent with the minimum standards expected of law enforcement officers. The s.138 application therefore failed.

Jurisdiction
Australia
Judgment Date
15 February 2007
Procedural Posture
Criminal Proceeding; Objection to Admissibility of Evidence Under S.138 Evidence Act 1995 / Voir Dire/pre Trial Ruling on Application to Exclude Evidence Obtained Pursuant to a Telephone Intercept Warrant and Search Warrants
Outcome
Application refused.
Legal Topics
['admissibility of Improperly Obtained Evidence' 'section 138 Evidence Act 1995' 'telephone Intercept Warrants' 'search Warrants' 'alleged False or Misleading Information in Warrant Applications' 'impropriety and Causation' 'briginshaw Principle']
['criminal Law' 'evidence' 'telecommunications Interception' 'search Warrants'] ['admissibility of Improperly Obtained Evidence' 'section 138 Evidence Act 1995' 'telephone Intercept Warrants' 'search Warrants' 'alleged False or Misleading Information in Warrant Applications' 'impropriety and Causation' 'briginshaw Principle']

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Procedural Posture

Criminal Proceeding; Objection to Admissibility of Evidence Under S.138 Evidence Act 1995 / Voir Dire/pre Trial Ruling on Application to Exclude Evidence Obtained Pursuant to a Telephone Intercept Warrant and Search Warrants

Legal Issues

  1. 1 ['Whether evidence obtained pursuant to a telephone intercept warrant and search warrants was obtained improperly or in consequence of impropriety within s.138 Evidence Act 1995.' "Whether alleged false and misleading information about 'total tax wipe out' and revenue impact in warrant applications was deliberately, intentionally or recklessly provided by Mr Michael O'Neill or others." 'Whether any established impropriety caused the issue of the warrants and the obtaining of the impugned evidence.' 'If impropriety and causation were established, whether the desirability of admitting the evidence outweighed the undesirability of admitting it.']

Ratio Decidendi

The Accused did not establish impropriety under s.138 Evidence Act 1995. Although some information in the warrant applications concerning 'total tax wipe out' and revenue calculations was inaccurate or excessive, the inaccuracies arose inadvertently and in good faith from imperfect understanding, complex technical matters and incomplete information, not from deliberate, intentional or reckless conduct by Mr O'Neill, ATO officers or AFP investigators. The conduct was not clearly or quite inconsistent with the minimum standards expected of law enforcement officers. The s.138 application therefore failed.

Court Disposition

Application refused.

Orders

  • ['The application of the Accused under s.138 Evidence Act 1995 to exclude evidence obtained pursuant to telephone intercept warrant and search warrants is refused.']