Kola v R [2006] ACTCA 23

1. I should simply say that this is an application for leave to appeal against an interlocutory ruling by Connolly J concerning the validity of the search warrant. There is a preliminary issue as to whether or not the applicant needs leave to make the application outside the seven day limitation period imposed by the rules.

2. That issue arises from the fact that the ruling was made following a voir dire which occurred on 16 December 2005, but that occurred in the absence of the accused who was at the time recovering from injuries sustained in a workplace accident.

3. The ruling was also made in the context of a new indictment dated 30 November 2005, and whilst the applicant had previously been arraigned on an earlier indictment he had not been arraigned on the new indictment.

4. In these circumstances it seems to me that his Honour was technically seized of the jurisdiction to make the ruling only upon the arraignment of the applicant which occurred on 20 February 2006. Since the present application was made on 27 February 2006 I am satisfied that the application was made within time and that leave to apply is not required.

5. The second issue that arises is whether leave to appeal is warranted. It seems to me that there are two observations which should be made about that. First, it is common ground that the resolution of the challenge to the validity of the warrant may be decisive of the trial and that it is in the public interest for the matter to be resolved before the trial commences. Second, the legal issues that arise for resolution on the proposed appeal are serious and of potential importance to other cases. I understand that a new form of warrant has been proposed and may already be in use, but the issues extend beyond mere matters of form and relate to the nature of the responsibility that rests upon magistrates in considering applications for search warrants.

6. For these reasons I am satisfied that leave should be granted, and I grant leave for the appellant to appeal.