Astrit Kola v The Queen
[2007] ACTCA 16
•8 August 2007
ASTRIT KOLA v THE QUEEN [2007] ACTCA 16 (8 August 2007)
EVIDENCE – search warrant – challenge to validity – irregularity evident on face of document – whether severable – whether indicative of failure to properly exercise statutory discretion.
Drugs of Dependency Act 1989 (ACT), s 187
Human Rights Act 2004 (ACT), s 12, s 30
Evidence Act 1995 (Cth), s 138
R v Adrian Michael Caruso [2006] ACTSC 45
Long v Magistrates’ Court (Vic) (1997) 96 A Crim R 149
Ousley v The Queen (1997) 192 CLR 69
Karina Fisheries Pty Limited and Others v Mitson and Others (1990) 26 FCR 473
Inland Revenue Commissioners and Another v Rossminster Ltd and Others [1980] AC 952
Coco v The Queen (1993) 179 CLR 427
Tran Nominees Pty Ltd v Scheffler, Raven and the State of South Australia; The Queen v Ryan and Raven; Ex parte Tran Nominees Pty Ltd (1986) 42 SASR 361
R v Rees [2005] ACTSC 91 Gray J
R v Khajehnoori [2005] ACTSC 130
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
Malubel Pty Ltd v Elder [No 2] (1998) 73 ALJR 269
Von Arnim v The Health Insurance Commission [2004] FCAFC 33
R v Stankovich (2004) 149 A Crim R 88
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 4 - 2006
No. SCC 214A of 2004
Judges: Crispin P, Gray and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 8 August 2007
IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2006
) No. SCC 214A of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ASTRIT KOLA
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Crispin P, Gray and Cowdroy JJ
Date: 8 August 2007
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2006
) No. SCC 214A of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ASTRIT KOLA
Appellant
AND:THE QUEEN
Respondent
Judges: Crispin P, Gray and Cowdroy JJ
Date: 8 August 2007
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
In this appeal the appellant challenges the validity of a search warrant (the warrant) issued pursuant to s 187 of the Drugs of Dependency Act 1989 (ACT) (‘the Act’).
FACTS
On 23 of September 2004 the appellant was committed for trial on charges alleging that the appellant had been involved in the cultivation of cannabis at two suburban houses in Canberra. An indictment was then filed containing counts involving both houses. On 8 August 2005 the Court allowed an application to sever the indictment. On 30 November 2006 a fresh indictment was issued containing two counts, one of cultivating cannabis for the purpose of sale and supply and the other of damaging property, namely a house at 44 Belconnen Way, Page (‘the premises’). The Australian Federal Police (‘AFP’) executed a search warrant of the premises during which items were seized. The warrant had been issued by a Magistrate on 17 January 2004 ostensibly pursuant to s 187 of the Act.
The admissibility of evidence obtained in consequence of the execution of the warrant was challenged by way of a hearing as a preliminary question. On 16 December 2005 his Honour Justice Connolly held the warrant was valid with the consequence that the seized material could be put before a jury as evidence in the trial. The appellant appeals from his Honour’s decision and challenges the validity of the warrant. The challenges are based upon several alleged errors contained in the text of the warrant which, it is submitted, demonstrate such a ‘slovenly’ approach by the Magistrate when issuing the warrant (as considered in R v Adrian Michael Caruso [2006] ACTSC 45), to lead to its invalidity.
Erroneous recital in warrant
The appellant’s principal submission claims that the recital does not correctly state the test the Magistrate was bound to apply in deciding whether to issue the warrant. The relevant portion of the search warrant states:
WHEREAS I, Shane Godfrey Madden, a Magistrate within the meaning of Section 187 (3) of the Drugs of Dependence Act 1989, of the Australian Capital Territory, being satisfied by information on oath placed before me this date, that there are reasonable grounds for suspecting that there is at any place situated at;
Block B, Section 32, Page, in the Australian Capital Territory also known as 44 Belconnen Way, Page in the said Territory;
Cannabis, cannabis plants, cannabis seeds, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies and accounts or anything else which the Informant believes on reasonable grounds to be connected with a particular offence, against Section 162(2) of the Drugs of Dependence Act 1989, namely Cultivate Prohibited Plant.
YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable to enter the said place specified above… and to seize such thing or things of a particular kind specified above, clothing or property that the person named in this warrant believes on reasonable grounds to be connected with an offence against the Drugs of Dependence Act 1989, and for so doing this shall be your sufficient warrant.
The appellant submits that s 187(3) of the Act does not require the Magistrate to be satisfied that there are ‘reasonable grounds for suspecting’ anything. Rather, such requirement is contained in s 187(4) of the Act. The statutory scheme for this issue of warrants commences with s 187(2) which relevantly provides:
If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that… there is or will be a thing or things of a particular kind… or in any property in the apparent control of, a particular person and the information sets out those grounds, the issuing officer may issue a search warrant…
Section 187(3) referred to in the warrant relevantly provides:
(3)If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that… there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant… to—
(a) enter any place named…
(b) search the place…
(c) …
(d)to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.
Section 187(4) of the Act relevantly provides:
(4) An issuing officer shall not issue a warrant under this section unless—
(a)the informant or some other person has given to the issuing officer, either orally or by affidavit, the further information (if any) the issuing officer requires about the grounds on which the issue of the warrant is being sought; and
(b) the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
The term ‘issuing officer’ is defined in s 187(1) of the Act to include a Magistrate.
Finding
It should be observed that s 187(3) authorises the issue of a warrant by an issuing officer if an information on oath laid before the issuing officer alleges that there are reasonable grounds for suspecting the presence of articles upon certain premises. The discretion is provided to the issuing officer once he or she is supplied with such evidence to proceed to issue the writ. Clearly if the issuing officer is not satisfied that there were reasonable grounds for the suspicion then the search warrant should not issue. If the issuing officer is so satisfied then the discretion to issue the warrant arises under s 187(3) but it is subject to the constraint imposed by s 187(4). Under this section a warrant may not be issued unless any further information required by the issuing officer has been provided and he or she is satisfied that there are reasonable grounds for issuing the warrant.
In relation to the authorisation to search the premises contained in the warrant the ‘grounds for issuing the writ’ are clearly the grounds prescribed by s 187(3). Accordingly, whilst s 187(3) does not specifically refer to the satisfaction that must be held by the issuing officer, it is implicit that such satisfaction is held if a search warrant issues.
The Magistrate must, of course, do more than satisfy himself or herself that there are grounds for the requisite suspicion. He or she must conscientiously consider whether the substantial invasion of rights authorised by the warrant are justified by the public interest in facilitating the search for the evidence suspected to be on the premises in question. Warrants usually authorise the entry, by force if necessary, of homes or other buildings that may be occupied by innocent people who are likely to be startled and perhaps alarmed by the sudden intrusion of police and distressed by the search of their property. If there are substantial prospects of obtaining evidence of major drug dealing or other serious crimes, the public interest will almost always justify the issue of a warrant. Indeed, in Long v Magistrates’ Court (Vic) (1997) 96 A Crim R 149 at 153 Gillard J suggested that it was difficult to conceive of any circumstance which would justify a refusal to issue a warrant once the preconditions had been satisfied. This suggestion was, however, made in the context of a case in which a warrant had been sought by a police sergeant attached to the Major Fraud Squad and it had apparently been refused only because it would have authorised the search of bank records. The Magistrate feared that it might be executed in an unnecessarily intrusive manner.
The Act does not require the warrant to set out the sections of the Act which gives rise to the issuing officer’s power (see Ousley v The Queen (1997) 192 CLR 69 per Toohey J at [83] where his Honour adopts the observations of the Full Court of the Federal Court of Australia in Karina Fisheries Pty Limited and Others v Mitson and Others (1990) 26 FCR 473 at 488; see also McHugh J at 111; and Gummow J at 127-128); nor does the Act prescribe any form the warrant must comply with (see Inland Revenue Commissioners and Another v Rossminster Ltd and Others [1980] AC 952 at 1004). The warrant did not need to refer to the test contained in s 187(4)(b) of the Act. Accordingly, the Court rejects the challenge to the validity of the warrant because it did not refer to s 187(4) of the Act.
In our opinion however, the above approach requires some qualification. If the relevant grounds for suspicion are largely speculative or the suspected offence is relatively minor, then a cautious approach may be required. For example, it would be inappropriate to periodically issue warrants authorising the search of boarding school dormitories or university colleges on the basis that, given the number of students present, there were grounds for suspecting that a few might be found to possess cannabis for personal use. Even when there are allegations of serious criminal conduct, the Magistrate may need to be alert to any risk of mala fides or oppressive conduct. However, no issue of that kind seems to have arisen in the present case and the mere absence of any express reference to s 187(4) does not provide an adequate basis for concluding that the discretion has not been duly exercised by the Magistrate.
Other alleged errors on face of warrant
The appellant submits that the warrant purports to found the exercise of the Magistrate’s discretion upon his satisfaction that there was cannabis ‘or anything else which the Informant believed on reasonable grounds to be connected with a particular offence’ upon the premises. An issuing officer need not be satisfied that grounds exist for inferring that items referred to in the warrant were connected with a particular offence. Accordingly it was unnecessary for the warrant to refer to the offence under s 162(2) of the Act. The appellant also submits that the expression ‘or anything else’ in the warrant indicates that the Magistrate misconceived the jurisdictional test he was obliged to apply in his decision to issue the warrant and ‘impermissibly extended the scope of the evidentiary material that might be searched for and seized under the warrant’: see Crispin P, in R v Adrian Michael Caruso (supra) at [16].
The appellant further submits that the items listed in the warrant to be searched for relate to matters relevant to cultivation and supply, and was not limited to the alleged offence of cultivation. Accordingly the appellant submits that the warrant did not limit the search in accordance with the requirements of s 187(3)(b) to ‘a thing or things of a particular kind connected with a particular offence’.
The appellant submits that these errors demonstrate that the Magistrate misapprehended the nature and the scope of the power leading to a misconstruction of the statute which gave him jurisdiction, thereby exceeding jurisdiction: see Coco v The Queen (1993) 179 CLR 427. The appellant submits that the requirements of the legislation must be rigidly observed; see Tran Nominees Pty Ltd v Scheffler, Raven and the State of South Australia; The Queen v Ryan and Raven; Ex parte Tran Nominees Pty Ltd (1986) 42 SASR 361 at 390, and Ousley (supra). Further, the appellant submits that s 30(1) of the Human Rights Act 2004 (ACT) requires a Court to interpret a statutory provision in a manner that is as far as possible consistent with the human rights presented by that statute, and that s 12 of such Act makes provision to preserve the privacy of an individual.
Based upon the above, the appellant submits that s 138 of the Evidence Act 1995 (Cth) requires the evidence obtained during the search to be excluded, in accordance with the principles referred to by Kirby J in Ousley.
Finding
The warrant states that the Magistrate was satisfied ‘by information on oath placed before me’ that there were reasonable grounds for suspecting that certain items relating to the charge would be upon the premises.
Section 187(3) of the Act requires, inter alia, that the information provided to the issuing officer establish that there are reasonable grounds for suspecting that on the day the information was laid, or within 28 days thereafter, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence. In R v Rees [2005] ACTSC 91 Gray J held at [33]:
Moreover, the declaration in the warrant of satisfaction on the part of the Magistrate that there are reasonable grounds for suspecting that the things connected with the named offence are at the specified place recites accurately the satisfactions required by the Act.
The grounds upon which the warrant was issued would have been contained in the information on oath that was before the Magistrate but that document was not part of the material available to us. There is no basis for a finding that, irrespective of the facts and circumstances alleged in the information, the possession of objects such as bags and scales that are often associated with the sale of illicit drugs could not have provided evidence relevant to a charge of cultivating plants from which such drugs may be obtained. Accordingly the Court rejects the claim of invalidity on this ground.
With regard to the challenge that the warrant directs the seizure of ‘such things or things of a particular kind specified above’, we do not consider that such words erroneously expand the terms of the warrant. Different considerations arise in respect of the words ‘anything else which the Informant believes on reasonable grounds to be connected with the particular offences’. In R v Khajehnoori [2005] ACTSC 130, Gyles J held that the words ‘anything else’ impermissibly extended the scope of evidential material that might be searched and seized. His Honour however referred to Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 and Malubel Pty Ltd v Elder [No 2] (1998) 73 ALJR 269 and Von Arnim v The Health Insurance Commission [2004] FCAFC 33 as authorities for the proposition that impermissible words may be severed from a warrant without affecting its validity.
The appellant relied upon the decision of the High Court of Australia in Coco v The Queen (supra) to suggest invalidity. The High Court found that the issuing officer’s order which exceeded power was ‘expressed in such a way as to make it appear that authorisation to enter private property was an integral and essential element in the approval to use the listening devices’. In those circumstances it was not possible to sever the offending portion. Here the warrant in question does not give rise to the same factual considerations, since the words ‘or anything else’ could readily be severed from the remainder of the text.
Spender J in R v Stankovich (2004) 149 A Crim R 88 at 99 observed:
Section 187(2) of the Act, properly understood, and s 187(4)(b), requires a Magistrate to be satisfied that there are reasonable grounds for suspecting that there is, or will be, a thing or things of a particular kind – naming them – on or in the clothing that is being worn by, or in any property in the apparent control of a named person, and which things are “connected with a particular offence”, describing that offence. There is no basis for referring to “anything else”.
The real difficulty presented by the inclusion of the words ‘or anything else’ is that they cannot be logically supported. The information might conceivably have provided grounds for suspicion that things other than those specified might subsequently be found at the premises and that the informant or some other police officer might thereupon form a belief that they were connected with an offence of cultivating a prohibited plant. However, that was not an issue that the Magistrate was required to address and he did not purport to do so. He purported rather to have been satisfied that there were reasonable grounds to suspect the presence of unspecified things described only by the compendious phrase, ‘or anything else’, and the assertion, expressed in the present tense, ‘that the informant believes on reasonable grounds to be connected with the particular offences’. Only one offence had been mentioned in the warrant and if the informant had been able to form a suspicion about the presence of other things that he or she believed were connected with that offence then they could have been specified.
As the Director of Public Prosecutions quite properly conceded, this aspect of the Magistrate’s finding was unsustainable. It appears that the Magistrate may have simply adopted a phrase used in s 187(7) of the Act, which provides an ancillary power for a police officer who is executing a search warrant to seize further items not specified in the warrant if he or she believes them to be connected to the offences to which the warrant was addressed. This in turn provides some ground for concern that he may not have given due consideration to the nature and extent of the grounds for suspicion provided by the information or to the issues he was required to address. On the other hand, it is obviously possible that the additional phrase was included inadvertently on a pro forma document and, whilst conscious of the real issues arising from the information, the Magistrate simply failed to strike it out.
Despite some lingering uncertainty engendered by the inclusion of this phrase, we have concluded that the Magistrate has not been shown to have failed to have duly exercised the discretion vested in him by s 187(3) of the Act. We would treat the words ‘or anything else’ as severable. Hence, this challenge to the validity of the warrant must fail.
The warrant can also be distinguished from those considered in R v Caruso. Five warrants had been issued by the same Magistrate on the same day and ‘presumably at the same time’ leading Crispin P to determine that the Magistrate failed to apply the correct test. However, in Caruso, neither the decision in Khajehnoori (supra) or that in Rees (supra) was disapproved. We do not consider that the matters raised by the appellant are such as to establish that the Magistrate had not properly applied his mind to the statutory requirements when authorising the issue of the warrant.
Conclusion
The Magistrate was empowered to issue the warrant, and the reference to s 187(3) of the Act does not lead to the conclusion that the warrant is invalid. Further, the words ‘or anything else which the Informant believes on reasonable grounds to be connected with a particular offence’ are severable. The warrant was not required to state the particular sections under the Act which gave the Magistrate the requisite satisfaction. It follows that the warrant is valid and that this appeal must be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 8 August 2007
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Legal Aid Office, ACT
Counsel for the Respondent: Mr R Refshauge SC
Solicitor for the Respondent: Office of the Director of Public Prosecutions ACT
Date of hearing: 30 April 2007
Date of judgment: 8 August 2007
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