Not declared innocent, Smethurst gets off on a technicality

High Court throws out AFP warrant against News Corp journalist Annika Smethurst.

While ruling the warrant was technically invalid, the court did not deliver the remedy sought by Smethurst’s lawyers, which was that the evidence gathered by police be destroyed or kept from investigators.

A majority of the court declined to grant the relief because of Smethurst’s “inability to identify a sufficient right or interest that required protection by way of a mandatory injunction”.

 
A more important argument put to the court by Smethurst’s lawyers was whether or not secrecy laws of the kind in which she has become ensnared are contrary to the constitution’s implied freedom of political speech. That will have to wait till another day because the technical failure of the AFP’s warrant makes it a moot point for now. The court’s refusal to order the evidence unlawfully seized to be destroyed or neutralised, however, seems to indicate what the answer to that question will be.

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23 Responses to Not declared innocent, Smethurst gets off on a technicality

  1. H B Bear

    Keystone Kops having a bad run in the High Court.

    As usual.

  2. jupes

    The warrant used by Australian Federal Police officers to search the home of News Corp journalist Annika Smethurst last year has been thrown out by the High Court, but police will be allowed to keep the materials they seized in the raid.

    No shit. Of course it’s been “thrown out”, it’s a used warrant.

    But seriously, what does that even mean? The cops can keep what they found so what was the point? Spend hundreds of thousands for some legal gobbledegook. What a waste of time and money.

  3. Mique

    I have seen many instances over the years where “impartial” public serpents whose personal ideological conflicts with Government policy of the day led them to leak internal discussion papers on policy issues to the ever-open arms of like-minded journalists. Regardless of anyone’s opinion about the numerous counter-arguments on any particular view, the ineluctable fact is that the public servants involved have breached the Crimes Act, their professional responsibility and, no doubt irrelevant to many, their professional ethics. It’s not a trivial matter, and should be taken seriously.

    Whatever Smethurst’s constitutional rights to implied freedom of political speech might be, in this context, the leaking public servant almost certainly has no such rights or, if any, they were limited by the Crimes Act.
    At the very least, Smethurst has abetted a serious crime. There is no excuse for that, in my opinion.

  4. Kneel

    “But seriously, what does that even mean?”

    Illegally seized, I would think. “Seized” – so taken, by force of law. Taken, not copied. They didn’t have all their little ducks in a row, making the search and seizure illegal. I can’t see why they aren’t required to give it back and destroy any copies they have.
    Except, it’s just the little people that have to obey the law, it doesn’t apply to them – we already know they think like this.

    But, it’s like a lot of this shit – if I technically break the law, tough shit, deal with the consequences. If I get off on a technicality, it’s wrong and the law should be changed to prevent it happening again.

    Anyway, who cares? We’ll all be dead of CCP virus by last Friday…

  5. Old Lefty

    In contrast to the Pell case, this really is getting off on a technicality. The defective drafting of the warrant made it invalid.

    Maybe they should have just done a VicPlod and charged her without conducting any investigations.

  6. Kneel

    “In contrast to the Pell case, this really is getting off on a technicality. The defective drafting of the warrant made it invalid.”

    No, it’s not a “technicality”.
    Compared to an individual, the state has virtually unlimited resources and no requirement to make a profit.
    The state writes the rules.
    The rules apply to state actors.
    The state expects the individual to obey the law as written – to the letter – or face penalties.
    If the state fails to follow the rules, penalties should apply to the state – in this case, the state should be significantly penalised, as they have the resources to double, triple or even quadruple check before they act. They failed to do so. They have no excuse. None. Toss it out, make the state pay legal costs plus compensation, and fine the department that authorised it $1M to come directly out of their own budget.

  7. Zatara

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    – 4th Amenedment, US Constitution

    Sounds like a winner. Wonder if they have a copyright on it.

  8. Sydney Boy

    But why isn’t this national news? Why are all the lefty commentators not whining about a technicality?

  9. Fred

    I make no comment about this High Court decision.
    But I have a message for every single victim and survivor of Anika Smethurst:
    I see you.
    I hear you.
    I believe you.

  10. Boambee John

    Zatara
    #3412544, posted on April 15, 2020 at 3:51 pm
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    – 4th Amenedment, US Constitution

    Sounds like a winner. Wonder if they have a copyright on it.

    Did anyone tell the FISA Court?

  11. Professor Fred Lenin

    Just because the crime did not occur and you are found not guilty doent mean yo are innocent ,stalin proved that in the 1930s,the revisionists pled guilty to crimes that never occurred and were excecuted for the heinous crimes they did mot commit ,see ? thats marxist law , so Pell is guilty and should be punished after all he did not commit the alleged crime . The left live in bizarro world dont they ?.

  12. Zatara

    Did anyone tell the FISA Court?

    Touche.

  13. Hay Stockard

    Through her in deep water. If she floats she’s a witch and guilty. Not innocent.

  14. Not declared innocent, Pell gets off on a technicality.

  15. Tim Neilson

    Not declared innocent, Pell gets off on a technicality.

    That’s incredibly witty m0nty.

    Just think, if the ABC, Fairfax etc. had been pushing just that line in relation to Pell, CL’s headline would have beaten you to the punch on using it as a gag…

    Oh, wait…

  16. dover_beach

    Monty’s finally back debasing himself, as usual, repeating the party line as provided by Ben Matthews.

  17. notafan

    Oh dear

    Was that the best Monty could manage?

    Cringe.

  18. dover_beach

    Never forget, Monty, 7-0, the HC unanimously decided that on the evidence adduced no reasonable jury ought find Pell guilty. Conviction quashed. Pell returns to a state of innocence in respect of these two charges.

    Gloria in excelsis Deo.

  19. jupes

    Illegally seized, I would think. “Seized” – so taken, by force of law. Taken, not copied. They didn’t have all their little ducks in a row, making the search and seizure illegal.

    Okay, got it.

    I can’t see why they aren’t required to give it back and destroy any copies they have.

    This is my point. The cops searched illegally but still get to keep the booty. Just as they would if the search was declared legal.

    So what was the point of the exercise?

  20. Kneel

    “This is my point.”

    Yeah, well – taken without legal authority = theft, dunnit?
    OK, can’t expect mere plod to know this wasn’t the way it should be, not their job, so charges of theft would be over the top.
    But restoration of the status quo prior to issuance of faulty legal documents sounds fair and reasonable, once such fault is legally recognised. Can any lawyers advise case law etc why this is not so? Not asking for chapter and verse, just like “settled in Bloggs vs The Queen, 3 March 1967 – they get to keep it” or whatever. The law may be an ass sometimes, but it is consistent, even if convoluted – or that’s the stated goal, anyway.

  21. How is this any different to telling a thief he had no right to break and enter, but he can still keep the loot?

    Tell me the truth, we’re fvcked as a nation aren’t we?

  22. Maj

    Kneel:

    No, it’s not a “technicality”.
    Compared to an individual, the state has virtually unlimited resources and no requirement to make a profit.
    The state writes the rules.
    The rules apply to state actors.
    The state expects the individual to obey the law as written – to the letter – or face penalties.
    If the state fails to follow the rules, penalties should apply to the state – in this case, the state should be significantly penalised, as they have the resources to double, triple or even quadruple check before they act. They failed to do so. They have no excuse. None. Toss it out, make the state pay legal costs plus compensation, and fine the department that authorised it $1M to come directly out of their own budget.

    By way of reference, the state (the Crown) and its agencies are required to be “model litigants” before the courts, for precisely the reasons you outlined – the imbalance of the means available to the state as compared to any other party.

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