Collett v Webb
[2011] WASC 13
•14 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COLLETT -v- WEBB [2011] WASC 13
CORAM: EM HEENAN J
HEARD: 10 DECEMBER 2010
DELIVERED : 10 DECEMBER 2010
PUBLISHED : 14 JANUARY 2011
FILE NO/S: SJA 1081 of 2010
BETWEEN: LINDSAY EDWARD COLLETT
Appellant
AND
JEREMY LEE WEBB
Respondent
ON APPEAL FROM:
For File No : SJA 1081 of 2010
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE F K ZEMPILAS
File No :NM 337 of 2009
Catchwords:
Appeal by prosecution - Dismissal of charge because of exclusion of evidence - Evidence excluded because obtained under invalid search warrant - New evidence showing mistake as to facts leading to issue of search warrant - Error at trial about origin and issue of warrant - No attempt to seek a retrial
Legislation:
Animal Welfare Act 2002 (WA), s 19(1)
Criminal Investigation Act 2006 (WA), s 154, s 155
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms D E Quinlan
Respondent: Ms C A McKenzie
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: McKenzie & McKenzie
Case(s) referred to in judgment(s):
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
George v Rocket [1990] HCA 26; (1990) 170 CLR 104
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Wright v The State of Western Australia [2010] WASCA 199
EM HEENAN J: This is an appeal by the prosecution from a decision of the Magistrates Court of Western Australia sitting at Kalgoorlie to dismiss a charge against the respondent. Leave to appeal on the grounds specified was granted by McKechnie J on 4 October 2010.
The grounds of appeal are three in number. The first two relate to what are said to be errors by the learned Magistrate in ruling inadmissible certain evidence proposed to be tendered in support of the prosecution, and the third ground is that the learned Magistrate, having ruled that evidence inadmissible, then ordered that the prosecution should be dismissed on a no case to answer submission. The ground in relation to the no case submission is that, had the evidence been admitted, the no case submission could not have succeeded.
The first ground of appeal relates to evidence which the learned Magistrate excluded on the basis that it was material seized by police officers in the course of the search of the respondent's home under a search warrant which, as a result of evidence before her, on a voir dire, her Honour concluded had been invalidly issued. After considering s 154 and s 155 of the Criminal Investigation Act 2006 (WA) and the factors there specified as being relevant to the power to admit such evidence notwithstanding the invalidity of the warrant, her Honour decided to exclude that evidence or, rather, more precisely, not to admit it.
The second ground of appeal is similar in its application but slightly different in its ambit. During the course of the police investigation at the respondent's home and while the search under the warrant thought to be invalid was being conducted, the respondent was questioned by police officers and gave a series of answers which, so it was submitted, constitute incriminating admissions. The prosecution sought to tender the video of those answers as part of its case against the respondent. The learned Magistrate, however, having already concluded that the warrant was invalidly issued and that the process of the search was not authorised, treated the admissions and the questioning of the respondent as proceeding under colour of the warrant and concluded that by virtue of s 154 and s 155 of the Criminal Investigation Act they were prima facie inadmissible. Again, her Honour concluded that there were no discretionary factors which should lead to the reception of that evidence and it was excluded.
The prosecution seeks to challenge the exclusion of what I will call these 'admissions' on the basis that, first, on their proper construction, s 154 and s 155 do not apply in relation to the process of questioning as opposed to the execution of the search and that, therefore, there was nothing in contravention of the Act which occurred leading to the application of s 155. The submission for the appellant is that what should have occurred was that, if it was suggested that the evidence had been improperly obtained, then the occasion arose for the exercise of a Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 discretionary judgment to decide not whether the evidence should be admitted but whether it should be excluded on common law principles. This is not the way that that issue was addressed by the learned Magistrate.
The third ground of appeal does not require any particular attention or explanation. It is accepted, and not challenged by counsel for the respondent, that if it were the case that some or all of this evidence was wrongly excluded, then the proper determination of the no case submission could not have produced the result which it did, and that there would either be a need to receive the evidence which had been excluded and then consider the no case submission in light of the significance of that evidence, or proceed with the trial. I do not think it is necessary to say anything further about the third ground at the moment.
All this occurred in the course of the prosecution of the respondent for an alleged offence that, between 1 August 2009 and 1 September 2009 at Norseman, he was cruel to an animal - a horse - contrary to the provisions of s 19(1) of the Animal Welfare Act 2002 (WA). The particular allegations are that he used a crossbow or some similar apparatus to shoot a bolt into the horse, causing it severe injury and stress. The evidence which had been seized under the search warrant to which I have referred related to items associated with the allegation of shooting a crossbow and the video recorded answers to questions related to that incident as well.
It is now necessary to say a little about the conduct of the trial. At the trial, counsel for the respondent sought to challenge the validity of the warrant relied upon for the search which I have already described. This was accomplished by calling for the production of the original warrant which could not be produced. The situation was served by the production of a copy of the warrant which was received into evidence, apparently without objection, but which failed to identify the Justice of the Peace (JP) who had issued the warrant because of a process or practice followed by the police of blacking out the name of the justice issuing the warrant for privacy reasons. In this state of uncertainty, the officer who had procured the warrant gave evidence that, in his belief, a certain JP at Norseman issued the particular warrant, and that it was his practice always to take a desired warrant to that JP. That particular JP, having been provisionally identified by this process, was then called and was cross‑examined about the procedure followed for the presentation of the warrant. It emerged that he had no direct recollection of the process on that occasion, but further cross‑examination led her Honour to conclude that the warrant had not been validly issued; that it had not been read and considered; that there had been no deliberation by the JP as to whether or not the issue of the warrant was justified; and that the whole process was treated as little more than a formality.
It was concluded, after this evidence from the JP had been given, that the warrant had been improperly issued and was therefore invalid, and on this basis the trial proceeded, giving rise to the issues of whether or not the evidence which I have already identified was obtained in breach of s 154 or s 155 of the Criminal Investigation Act or, by application of those provisions, should be excluded unless the Magistrate decided to the contrary. Considerable time and attention was given before her Honour to a determination of those questions; her Honour ruling in the end that the evidence should not be received, as I have already stated.
The present grounds of appeal - and the only grounds in respect of which leave to appeal has been sought or granted - raise questions about whether the exercise of the discretion by the Magistrate to exclude this evidence was correct, or should be reviewed. I have been presented with very thorough and helpful submissions covering the authorities relating to the question of whether evidence obtained apparently in breach of the procedures for obtaining a search warrant or other necessary preliminaries to the interrogation of suspects can or should be admitted.
Issues to be raised by the appeal
Essentially, the submissions by the appellant were to the effect that, notwithstanding the invalidity of the search warrant, the learned magistrate erred in refusing to exercise her discretion to allow the admission of evidence seized by the prosecution under the warrant because the factors to be considered under s 155(2) of the Criminal Investigation Act should have led, in the proper exercise of discretion, to the admission of that evidence. In this regard, counsel for the appellant sought to rely on the recent consideration of the applicable principles undertaken by the Court of Appeal in Wright v The State of Western Australia [2010] WASCA 199 [16] ‑ [23], [41] ‑ [42] McLure P, Buss JA agreeing [59] and Blaxell J to the same effect [174], [188].
Again, at the hearing of the appeal counsel for the appellant sought to establish the proposition that s 154 and s 155 of the Act did not apply to the admission of confessional evidence, as distinct to evidence obtained under an invalid search warrant, and that the question of the admissibility of the video recorded answers of the respondent obtained in the course of the search should have been considered by the application of the common law principles described in Bunning v Cross, which involve a discretion to exclude evidence improperly obtained but as the result of a balancing exercise of competing public policy requirements.
The submission for the prosecution was that this was not an occasion where 'the real evil' aimed at by s 155 of the Criminal Investigation Act was an instance where incriminating statements are procured by a course of conduct on the part of police officers involving a deliberate or reckless breach of statutory requirements imposed in order to regulate that very course of police investigation. These, it was submitted, are instances involving public policy considerations which will ordinarily dictate judicial discretion being exercised in a manner to exclude such evidence: Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 203 ‑ 204 (Deane J).
Counsel for the respondent submitted that, on the evidence before the learned magistrate, her Honour was correct in concluding that the warrant had been improperly issued and was invalid: George v Rocket [1990] HCA 26; (1990) 170 CLR 104 and, that this being the case, there could be no error established by the learned magistrate in the exercise of her discretion not to admit the evidence emanating from the execution of the invalid warrant. Again, counsel for the respondent submitted that the evidence of the video recorded admissions by the respondent was part and parcel of the invalid exercise of the search warrant because the questioning occurred during the course of the search and at times when the police officers were within the respondent's premises pursuant to the purported authority of the warrant.
Mistake at trial
However, I have also been presented with an affidavit on behalf of the appellant, the prosecution. This provides a most commendable disclosure of facts subsequently identified and which I have no hesitation in acknowledging is information which the prosecution was obliged to put before the court. This is an affidavit of Mrs Kiri Campbell of Norseman, another JP, who deposes to the fact that, on the date in question, the police officers in charge of this investigation came to her home, produced a proposed warrant, and asked her to authorise the issue of the search warrant of the present respondent's premises; that she followed her customary procedure of satisfying herself that the warrant should be issued and that there were reasons for it to be issued, and that she thereupon issued the warrant.
This evidence discloses that the warrant in question was not issued by the JP who was thought to have issued it and whom the police officer had identified at the trial in Kalgoorlie, not the JP who was called and who had no recollection of the process of issuing this particular warrant but described his general methodology. This warrant in fact was issued by Mrs Campbell and, on the face of it, validly issued. I have been left to consider the significance of this revelation.
It seems to me that this undermines the basis upon which the trial was conducted and this appeal mounted. Had the truth been known at the trial and the respondent still had pursued questions of the validity of the warrant, presumably Mrs Campbell would have been called to give evidence to describe the procedure followed for the issue of this warrant and would then have been cross‑examined. What would have emerged from that cross examination cannot be said. It may be that the validity of the warrant would have been demonstrated or it may be that, notwithstanding Mrs Campbell's affidavit, some other defect in the issue of the warrant might have been discovered. Suffice it to say that the very process of examining the validity of the warrant at the trial, as it should have been done, was not conducted. On the face of it, a wrong conclusion was drawn about the invalidity of the warrant based on the mistake as to the identity of the JP issuing it.
Some reservation about the question of whether or not the warrant was validly issued in these different circumstances must be expressed because, in a case where it was the position of the respondent that proof of the validity of the search warrant was an essential part of the prosecution case and was being contested, the true circumstances under which this warrant was issued were not investigated, scrutinised or pronounced upon by the learned magistrate. It follows, therefore, that the determination of the validity or otherwise of this warrant, and hence the admissibility of the material obtained pursuant to it, went off on a mistaken series of findings about how, in what circumstances and by whom, the warrant was actually issued. None of this can be attributed to the learned magistrate who plainly reached conclusions which were open to her on the evidence as it emerged, but it is now clear that that evidence was, in several material respects, wrong. The question which now arises is what impact this has upon the present appeal or, more particularly, upon the appeal and the grounds upon which leave to appeal has been sought and granted.
In those circumstances, it seems that it would be entirely artificial and unjustifiable to proceed to deal with this appeal on the footing that the warrant was invalidly issued by a different JP and that the fate of this appeal depends upon justifications for the exercise of discretions by the learned Magistrate made after the evidence had mistakenly led the court to conclude that somebody else had issued the warrant and in different circumstances.
Had this error been identified earlier, it might - and I say no more than 'it might' - have been the case that leave to appeal could have been sought and possibly granted on the footing that there had been a mistake about the identity of the JP who issued the warrant and that the true question of the validity of the warrant had not been properly determined, and that the interests of justice required that the dismissal of the charge should be set aside and the prosecution commenced all over again on a different footing, or some variation of that approach.
As to that, the appellant, the prosecutor at the trial, does not seek leave to appeal on any such ground. Counsel responsibly acknowledges that the time for applying for leave in that regard has expired; that the whole question would give rise to a range of discretionary considerations concerning the conduct of the trial and the prejudice that would be caused if the matter were to be reopened. That being the case, no attempt on this appeal is being made to rely on the real validity of the warrant issued by a different JP.
In these circumstances, it seems that I have no alternative but to dismiss the appeal, on the basis that subsequent events have revealed that the decisions reached about the exclusion of the evidence proceeded on a mistaken view of the facts; that that was a mistake not in any way due to the respondent or to her Honour. The consequences of this will just have to lie where they fall. The result will be that the appeal is dismissed.
0
4
2