Director of Public Prosecutions v Tamcelik

[2012] NSWSC 1008

Supreme Court

New South Wales

Medium Neutral Citation:

Director Of Public Prosecutions v Tamcelik [2012] NSWSC 1008

Hearing dates:

15/12/2011

Decision date:

31 August 2012

Jurisdiction:

Common Law

Before:

Garling J

Decision:

1. Summons dismissed.

2. The plaintiff to pay the defendant $3,250 by way of costs thrown away by the amendment of the summons, otherwise each party to pay their own costs.

Catchwords:

APPEAL - appeal from Local Court decision - defendant charged with possession of restricted substance contrary to Poisons and Therapeutic Goods Act 1966 - defendant acquitted by Local Court - police attended premises in response to complaint of domestic violence - seized goods from defendant's bedroom - whether Magistrate applied incorrect principles and failed to exercise discretion under Evidence Act 1995, s 138 - relevant statutory provisions under Law Enforcement (Powers and Responsibilities) Act 2002 - relevant common law principles - statutory interpretation - statute excludes common law and provides own regime - application to facts - all grounds fail - summons dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Poisons and Therapeutic Goods Act 1966

Cases Cited:

Carr v Western Australian [2007] HCA 47; (2007) 232 CLR 138
Coco v R [1994] HCA 15; (1994) 179 CLR 427
Commissioner for Railways (NSW) v Agalianos [1995] HCA 27; (1955) 92 CLR 390
Employment Advocate v Williams [2001] FCA 1164; (2001) 111 FCR 20
Entick v Carrington (1765) 19 State Tr. 1029
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Ghani v Jones (1970) 1 QB 693
Greer v New South Wales Police Commissioner [2002] NSWSC 356; (2002) 128 A Crim R 586
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
MacDonald v Beare [1904] HCA 22; (1904) 1 CLR 513
New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606
Parker v Comptroller General of Customs [2007] NSWCA 348; (2007) 243 ALR 574
Parker v Comptroller General of Customs [2009] HCA 7; (2009) ALJR 494
R v Elomar (No.11) [2009] NSWSC 385
Thompson v Australian Capital Television Pty Ltd [1994] FCA 1042; (1994) 54 FCR 513
Tye v Commissioner of Police (1995) 84 A Crim R 147
Wilson v State Rail Authority of NSW [2010] NSWCA 198; (2010) 78 NSWLR 704

Category:

Principal judgment

Parties:

Director of Public Prosecutions (P)
Aykut Tamcelik (D)

Representation:

Counsel:
A Mitchelmore (P)
H Danji SC (D)
Solicitors:
S C Kavanagh, Solicitor for Public Prosecutions (P)
P Johnson, Legal Aid NSW (D)

File Number(s):

2011/184970

Judgment

1. On 7 February 2011, Aykut Tamcelik was acquitted by the Local Court at Waverley (Williams LCM) of three charges, that on 8 March 2010, at Eastlakes, he had in his possession a prescribed restricted substance, contrary to the provisions of s 16(1) of the Poisons and Therapeutic Goods Act 1966 ("PTG Act"). The substances were alleged to be steroids.

1. The Director of Public Prosecutions for NSW ("DPP"), has sought to challenge that acquittal by bringing a summons in the Supreme Court seeking orders that:

"2. ...the order of his Honour Magistrate R H Williams, made on 7 February 2011, in the Local Court at Waverley, dismissing proceedings against [Aykut Tamcelik] for the offence of possess prescribed restricted substance (x 3) Poisons and Therapeutic Goods Act 1966, s 16(1) be set aside.

3. An order that the matter be remitted to the Local Court to be dealt with according to law.

4. An order that the defendant pay the plaintiff's costs of and incidental to this summons.

Poisons and Therapeutic Goods Act1966

1. Section 16(1) of the PTG Act creates an offence for a person to have in their possession a prescribed restricted substance unless, shortly put, the person is a health professional or else, has a proper therapeutic purpose for their possession of the substance.

1. The maximum penalty for an offence against s 16(1) is:

(a)   if the substance is an anabolic or androgenic steroidal agent, a fine of $2,200 or imprisonment for two years or both;

(b)   if the substance is another restriction substance, a fine of $2,200 or imprisonment for six months or both.

1. The effect of the provisions of s 6 of the Criminal Procedure Act 1986, is to require that an offence against s 16(1) of the PTG Act be dealt with summarily, and to be heard in the Local Court.

1. Although an offence against s 16(1) of the PTG Act can, because the Parliament has provided for a term of imprisonment of up to two years, properly be regarded as a serious offence such an offence is nevertheless at the lower end of the spectrum of criminal offences in NSW. It is not an indictable offence.

A statutory right of appeal

1. Section 56 of the Crimes (Appeal and Review) Act 2001 provides that a prosecutor may appeal as of right to the Supreme Court against an order made by the Local Court dismissing a matter, the subject of any summary proceedings, and as well, against any order for costs made by the Local Court against a prosecutor in a summary proceeding.

1. Appeals pursuant to s 56 can only be made as of right on a ground

"...that involves a question of law alone."

1. Section 59 provides for the determination of such an appeal. Section 59(2) is in the following form:

"(2) The Supreme Court may determine an appeal against an order referred to in s 56(1)(b), (c) or (d) or ...:

(a) by setting aside the order and making such other order as it thinks just, or

(b) by dismissing the appeal."

This does not include an order for costs in a summary proceeding.

Grounds of Appeal

1. After an amendment to the summons was allowed at the hearing of the matter, an Amended Summons dated 16 December 2011, was filed. The grounds which are set out in that Amended Summons, upon which the DPP moved to set aside the decision of the Local Court are as follows:

"(i) applying Kuru v State of NSW (2008) 236 CLR 1; (2008) 246 ALR 260; [2008] HCA 26 to the matter before him, (this not being a case where there had been a withdrawal by the occupier of his invitation for them to enter the property), and regarding the provisions of part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002 as being definitive of police powers in respect of attendances at premises following receipt of domestic violence complaints (s.4 of the Act specifically preserves the common law functions, obligations and liabilities of police officers unless limited by the Act).

(ii) failing to apply the principles contained in Ghani v Jones (1970) QB 693 at 706 relating to the seizure of evidence in the absence of a warrant and prior to the laying of any charges, the principles governing the lawfulness of such seizures at common law as articulated by Lord Denning having been considered and applied in this State in cases such as Tye v Commissioner of Police (1995) 84 A Crim R 147, Greer v Commissioner of NSW Police & Anor [2002] NSWSC 356, and Regina (C'wealth) v Elomar & Ors [No.11] [2009] NSWSC 385.

(iii) failing to exercise his discretion under s.138 of the Evidence Act 1995 and determine whether the desirability of admitting the steroids into evidence outweighed the undesirably of admitting the steroids, his Honour having held the seizure to be unlawful.

(iv) dismissing the proceedings.

(v) considering that the exercise of discretion under s 138 of the Evidence Act 1995 did not require the giving of an opportunity to the prosecutor to be heard on the factors relevant to the exercise of the discretion under s 138(3) of that Act."

Background Facts

1. On 8 March 2010, in the afternoon, a complaint of domestic violence was made by Mr Savas. The subject of the complaint was his grandson, Mr Tamcelik, who was living in an apartment in Eastlakes at the time, with his grandfather.

1. Police officers attended the premises in response to the receipt of the complaint. Mr Tamcelik was not then at the premises. He had already left. He did not return to the premises at any time whilst the police officers were present.

1. The police did not suggest, nor did the facts establish, that there were any present and likely "breach of the peace" to which they were attending.

1. Upon arrival, the police officers were invited into the premises by Mr Savas. Mr Savas invited the police officers out onto the balcony where he could, and did, tell them about the incident leading to his complaint without being overheard or else disturbed by a woman who was in the apartment at the time. The woman was identified in the Local Court, inconsistently, as either Mr Savas' wife or else his sister-in-law. The exact identity of this person is not relevant, because she had no role to play in the facts and circumstances relied upon.

1. Whilst on the balcony, one of the two police officers made handwritten notes in his notebook of the account given by Mr Savas, and then asked Mr Savas to sign the notebook indicating his acceptance of the account. He did so.

1. The statement given is in the following form (excluding a machine-printed introduction):

" ...

2. I am 70 years of age.

3. My grandson lives here, 26 years. He always gets money and he pushed me and tells me 'fuck you, shit, rat, pimp', he always asks for money.

4. About 1 hour ago my grandson was home. I gave him $50 to buy my medicine. He no buy medicine. I said 'why no buy medicine?'. He said 'I just buy food'. He through (sic) my food off balcony. I told him to go. He ran away.

5. I don't want him living here, he assaulted me, he hurt me. I fear he kill me.

(SGD) Sadik Savas 3.20pm 8.3.10."

1. The police officer's note of the whole incident commenced at 14.56pm and the statement, which was signed by Mr Savas on each page, seems to have been commenced to be made shortly after that.

1. Mr Savas' signature was witnessed by one of the police officers.

1. At the conclusion of the signing of the statement, the two police officers and Mr Savas went back inside the apartment. There, apparently, the woman in the apartment was yelling or screaming at them. They walked together through the lounge room area into a hallway, off which there were a number of bedrooms.

1. The Magistrate accepted, in the face of disputed evidence, that the police investigation into the domestic violence incident, had completed prior to the officers stepping off the balcony and returning inside the apartment. It is not suggested that this finding of fact was erroneous.

1. The officers then, with Mr Savas, walked along the hallway. As they did so, they entered the bedroom which Mr Tamcelik occupied. There they observed, what appeared to them to be drugs (or else restricted substances) and seized those items.

1. It was the possession of these items which led to the charges against Mr Tamcelik.

1. Although there was an issue at the hearing, the Magistrate found that there was no reason why, so far as the complaint of domestic violence was concerned, the officers had entered Mr Tamcelik's bedroom nor was there any reason why they should have conducted a search of that bedroom or even gone into the bedroom at all. These findings were open to the Magistrate, and we are not challenged in these proceedings.

1. Williams LCM concluded his findings as to what happened in the bedroom in this way:

"It may be that it was chance discovery, but on discovery or on notice of the items, there was the appropriate means or the appropriate path of the police officers to then obtain a search warrant. That can be done by telephone or attendance before a Justice, and I would have thought that, in this instance, that was the reasonable approach because there was no other circumstances which required the police officers in this matter or which necessitated the action which they took without obtaining in the first instance, a search warrant."

Hearing in the Local Court

1. Although the facts of what occurred at the apartment at Eastlakes are reasonably clear, it is necessary to trace the course of the hearing in the Local Court.

1. The hearing of the matter commenced on Monday 31 January 2011.

1. The prosecution commenced to lead its evidence. The first witness was Leading Senior Constable Faber, who was one of the two police officers who had attended at the apartment at Eastlakes. He gave evidence-in-chief without objection of what occurred up until the time at which the police officers and Mr Savas left the balcony and commenced walking back through the apartment. At that point in time, counsel for Mr Tamcelik objected to any further evidence.

1. The witness was asked to wait outside the Court and counsel for Mr Tamcelik explained to the Court that the basis of his objection was that in the absence of a search warrant, and it was ultimately agreed that there was no such search warrant, the police were not entitled to give evidence of the search and seizure of the impugned items because the search and seizure was unlawful.

1. The prosecutor sought a short adjournment so that he could get some instructions. When the matter resumed, the prosecutor asked for some further time because he had done some research during the first adjournment and was waiting for some material to be faxed to him "from headquarters".

1. There was then legal argument and debate, and it was submitted that the appropriate course to follow was for there to be a voir dire examination. The Magistrate agreed, and a voir dire examination of the police officers and Mr Savas took place. During the course of that voir dire examination, although Mr Savas was a witness called by the prosecution, the prosecutor sought and obtained the Court's leave to cross examine him, which he then did.

1. At the conclusion of the voir dire, there was insufficient time to finalise the matter on that day, and so the Court adjourned the proceedings to resume on Monday 7 February 2011.

1. Immediately prior to the matter being adjourned, in the course of discussion between the bench and those at the Bar table, about the likely length of the hearing on the next occasion, the Prosecutor said:

"... Ultimately, if your Honour rules in favour of the prosecution, then it would continue in that fashion and then, if not, it would be a 138 application which will be very short, I'd imagine."

1. I would take the phrase "a 138 application" to mean an application made by the prosecution, if the Magistrate ruled that the search and seizure was unlawful, for the Court to nevertheless admit the evidence because the desirability of admitting it outweighs the undesirability of admitting it, as those concepts are used in s 138 of the Evidence Act 1995. However, all the prosecutor was doing was foreshadowing that it was possible that if the search and seizure was held to be unlawful, that he would make such a submission.

1. On 7 February 2011, when the hearing of the matter resumed, counsel for Mr Tamcelik and the prosecutor both made submissions to the Court.

1. The submissions made by both the prosecutor and counsel for Mr Tamcelik were made orally, and a transcript has been provided to this Court of those submissions.

1. The prosecutor addressed initially and submitted that the facts ought be found in a particular way. The prosecutor then made submissions with respect to the law. In summary, having taken the Court to a number of cases and pieces of legislation, he submitted that the search and seizure was not unlawful. The prosecutor then quoted from a publication, the details of which are not before this Court. It is unclear if the Local Court knew what the publication was. The prosecutor then made this submission:

"Then the next principle, chance discovery, entry onto premises made pursuant to another Act.

'If a police officer or other official is lawfully on premises either by consent of the occupier or under the provisions of any Act of Parliament, or to quell a breach of peace (which is what happened in this case), he or she is there for all purposes until that lawful authority is revoked'. "

1. In short, he submitted that the police officers were lawfully on the premises, and that they were able, without a warrant, to seize the relevant items.

1. In his submissions in chief, although he had previously foreshadowed that he would rely on s 138 of the Evidence Act, the Prosecutor made no submission as to whether, even if, and contrary to his submissions, the Court was satisfied that the search and seizure was unlawful, the Court should nevertheless exercise a discretion to admit the evidence. He did not identify or articulate any basis upon which he said the Court could so conclude. He did not point to any fact which favoured such a conclusion. He simply said nothing about it at all.

1. Counsel for Mr Tamcelik submitted, in summary, that:

(a)   the principal authority relied upon by the prosecution to justify a finding that the search and seizure which was undertaken was lawful, was Ghani v Jones (1970) 1 QB 693, which, it was submitted, did not apply in the particular circumstances of this case;

(b) the provisions of Pt 6 of the Law Enforcement (Powers and Responsibilities) Act 2002, governed the circumstances and that the seizure of the impugned goods was not permitted by the provisions of that part, and accordingly the seizure was unlawful; and

(c)   the conduct of the police was governed by the principles in Kuru v State of New South Wales (2008) 236 CLR 1;

1. In addition, he made submissions as to how the facts should be found.

1. The prosecutor did not seek to, nor did he, respond to the submissions of counsel for Mr Tamcelik.

1. It is important to record a summary of the content of these submissions because one of the grounds of appeal is that there was a denial of procedural fairness.

1. After an adjournment until later in the day, the Magistrate delivered his judgment orally. In his judgment, the Magistrate:

(a)   identified the principal issue as whether the evidence obtained during the course of the police entering the Eastlakes apartment was "properly obtained".;

(b)   noted that the prosecutor had submitted that the evidence should be admitted as it was a "chance discovery", which was covered by the decision of Ghani v Jones;

(c)   noted the defence submissions that Ghani v Jones ought not to be followed, and that the principles applicable were those found by the High Court of Australia in Kuru v New South Wales;

(d) found that the provisions of LEPRA were applicable, and delineated the police powers in all of the circumstances;

(e) found that s 85 of LEPRA limited police powers of investigation, and that if police wished to conduct a search and seize goods, if those powers had been exhausted, then a search warrant was needed;

(f)   concluded, on the facts, that there was no issue, for the purpose of the domestic violence offences, or its investigation, for the police officer to search the bedroom, nor for the police officers to have entered the bedroom;

(g)   without specifically finding that the discovery of the items was a "chance discovery", the Magistrate found that it was, as the circumstances at the time were such, reasonable for the police officers to have obtained a search warrant, by telephone if necessary, before taking the action which they did of entering the bedroom and seizing the items;

(h)   concluded that :

"On that basis, the Court will not allow the tendering of the evidence in the proceedings against Tamcelik".

1. There then occurred this exchange:

"Prosecutor: Just for the record, is your Honour saying that the Court will not entertain a 138 application?

His Honour: I won't allow the evidence in relation to anything which occurred after the police had left the balcony/lounge room of the premises. Does that clarify it for you Sergeant?

Prosecutor: If the Court pleases.

His Honour: Yes, what's your position Sergeant.

Prosecutor: Your Honour I would ask for the matter to stand. I just note that Sergeant Drew is in Court. I would just like to speak to him.

His Honour: Yes. Are you seeking a short adjournment are you?

Prosecutor: Yes your Honour.

His Honour: I'll grant you a short adjournment for that purpose, thank you.

SHORT ADJOURNMENT

His Honour: Yes Sergeant, did you find out what you're doing?

Prosecutor: Thank you, your Honour. Just on instructions formally, can I just clarify is your Honour of the view that all of the evidence from the balcony onwards will not be admissible in the hearing proper?

His Honour: That's the case, yes. The tendering of that into the evidence of the proper proceedings generally, I will not allow that evidence.

Prosecutor: If the Court pleases."

1. The prosecutor then sought instructions and informed the Court that he was instructed to offer no further evidence.

1. The Magistrate then said:

"His Honour: On that basis, the Court can't be satisfied that the prima facie case has been made out and the proceedings will be dismissed."

1. It is appropriate now to consider the individual grounds of appeal.

1. In so doing, it will be convenient to first deal with the central question involved in Grounds 1 and 2, namely, what the police powers were whilst they were on the premises. In order to understand this ground, and the submissions with respect to it, it is necessary to call attention to the provisions of Pt 6 of Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA"), the common law principles which deal with unlawful search and seizures, and the concept of "chance discovery".

Law Enforcement (Powers and Responsibilities) Act 2002

1. LEPRA was assented to on 29 November 2002. For a reason, which is not apparent, Pt 6 did not commence until 1 December 2005. It was certainly in place and effective at the time of the circumstances of this matter.

1. On 17 September 2002, the Hon R J Debus, the Attorney-General made the Second Reading Speech for the Bill which in due course became LEPRA.

1. Of the Bill, he said:

"Entry by invitation

The bill represents the outcome of the consolidation process envisaged ... to help strike a proper balance between the need for effective law enforcement and the protection of individual rights.

Matters included in the bill represent a codification of the common law, a consolidation of existing statute laws, a clarification of police powers, or a combination of these."

1. Other than these general remarks, the Attorney said nothing at all in the Second Reading Speech about Part 6 of LEPRA.

1. The purpose and meaning of Part 6 is to be gleaned from the terms of it and in accordance with the principles of statutory interpretation which are identified later in this judgment.

1. Part 6 of LEPRA deals with search, entry and seizure powers of police officers relating to domestic violence offences.

1. Section 82 is in the following form:

"82 Entry by invitation

(cf Crimes Act 1900, s357F)

(1) A police officer who believes on reasonable grounds that a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed, in any dwelling may, if invited to do so by a person who apparently resides in the dwelling (whether or not the person is an adult) enter the dwelling and remain in the dwelling for any of the following purposes:

(a) to investigate whether a domestic violence offence has been committed,

(b) to take action to prevent the commission or further commission of a domestic violence offence.

(2) However, a police officer may not enter or remain in a dwelling merely because of any such invitation if:

(a) authority to so enter or remain is expressly refused by an occupier of the dwelling, and

(b) the police officer is not otherwise authorised (whether under this or any other Act or law or subsection (3)) to so enter or remain.

(3) A police officer may exercise a power to enter and remain in a dwelling if the invitation to enter and remain is given by a person who apparently resides in the dwelling and whom the police officer believes to be the victim of a domestic violence offence, even if another occupier of the dwelling expressly refuses authority to the police officer to do so.

(4) For the purposes of this section, a 'victim of a domestic violence offence' is any person against whom a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed."

1. The provisions of s 85 are also directly relevant in the circumstances of this case. They are in the following form:

"85 Powers that may be exercised on entry into premises

(cf Crimes Act 1900, s357H)

(1) A police officer who enters a dwelling pursuant to a power conferred by or under this Part is to take only the action in the dwelling that is reasonably necessary:

(a) to investigate whether a domestic violence offence has been committed, and

(b) to render aid to any person who appears to be injured, and

(c) to exercise any lawful power to arrest a person, and

(d) to prevent the commission or further commission of a domestic violence offence.

(2) A police officer who so enters a dwelling must inquire as to the presence of any firearms in the dwelling and, if informed that there is or are a firearm or firearms, must take all such action as is reasonably practicable to search for and to seize and detain the firearm or firearms.

(3) A police officer who so enters a dwelling is to remain in the dwelling only as long as is necessary to take the actions required or permitted by this Part."

1. Sections 86 and 87 deal with particular powers relating to firearms and/or dangerous articles or dangerous implements. Although there is no suggestion that in the circumstances of this case, the articles which the police seized fell within either s 86 or s 87, it is of contextual importance to note the terms of ss 86 and 87. They are as follows:

"86 Police may enter and search for firearms

(cf Crimes Act 1900 , s 357I)

(1) A police officer who, on an inquiry under section 85, is informed that there is no firearm in the dwelling but who believes on reasonable grounds that there is or are a firearm or firearms in the dwelling, must apply to an authorised officer for the issue of a search warrant.

(2) A police officer who believes on reasonable grounds that:

(a) a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed, otherwise than in a dwelling, and

(b) any of the persons concerned may have a firearm in a dwelling,

must apply to an authorised officer for the issue of a search warrant.

(3) In addition to any other powers of an authorised officer under Part 5, an authorised officer who issues a search warrant that a police officer is required to apply for under this section may, in the warrant, authorise any police officer:

(a) to enter and search the dwelling concerned for firearms, and

(b) to seize and detain any firearms that may be found in the dwelling.

(4) This section does not apply to a police officer if the circumstances are such that the police officer has power to search and seize a dangerous article under another provision of this Act or another law.

87 Search and seizure powers

(cf Crimes Act 1900 , s 357)

A police officer who enters a dwelling under a power conferred by or under this Act and who believes, on reasonable grounds, that:

(a) a dangerous article or dangerous implement (other than a laser pointer) is in the dwelling, and

(b) that the dangerous article or dangerous implement is being, or was, or may have been or may be used to commit a domestic violence offence,

may search the dwelling for the dangerous article or dangerous implement and seize and detain the dangerous article or dangerous implement."

1. It is also important to notice the provisions of s 4 of LEPRA. It deals with the relationship of the Act to the common law. It reads as follows:

"4 Relationship to law and other matters

(1) Unless this Act otherwise provides expressly or by implication, this Act does not limit:

(a) the functions, obligations and liabilities that a police officer has as a constable at common law; or

(b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the Common Law on police officers to deal with breaches of the peace."

1. Section 9 to which reference is made, deals with the police powers of entry in the event of an emergency. It is not said that any such emergency existed in the circumstances of this matter.

Relevant common law principles

1. Before proceeding to analyse the issues which arise from the facts in this case, having identified the relevant statutory provisions, it is appropriate to identify the various common law principles which are involved.

1. The first principle deals with the inability of police officers to enter private property and to seize goods from that private property without having a statutory entitlement so to do: such as by being in possession of a search warrant, or as Part 2 of LEPRA allows, to quell a breach of the peace, or in another specified emergency.

1. The second principle deals with the doctrine which has become known, in a shorthand way, as the doctrine of "chance discovery". This deals with the circumstances in which items are discovered collaterally with the purpose of the presence of police on premises: such as being present in premises pursuant to a search warrant dealing with the presence of stolen goods, when pornographic material shared on computer hardware is discovered.

1. Historically, the common law refused to permit a police constable (or a government official) to enter private property without the permission of the occupier: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at [4]; Entick v Carrington (1765) 19 State Tr. 1029. Whilst the basis for this principle was initially the individual's right of private property, more recently, the justification rests on the protection of privacy.

1. So important is this basic common law right, that it is enshrined in the American Constitution by the Fourth Amendment: "The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated ...". Kirby J in New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [22], described it as

"...a precious feature of our type of society and the happiness of its people..."

1. The common law recognises that there are circumstances, although very limited, in which items found and seized by police officers, from private premises, in the absence of a search warrant, or other lawful basis for being on the property of an individual, can be tendered as evidence, and admitted as part of a prosecution case, even though the search and seizure was not authorised. Some refer to this as the doctrine of "chance discovery". It seems that the police prosecutor did so when addressing the Magistrate in this case.

1. Often the common law will be dealing with this principle and doctrine in two well-defined circumstances, of which this case is one. The first is that the prosecution will seek to tender and the defendant will oppose, items including paper and documents that have been seized "unlawfully". The Court then determines as a matter of discretion, in NSW now, in accordance with s 138 of the Evidence Act, whether this item should be admitted into evidence at a criminal hearing. The second is when a person seeks the return to him or her of the item that has been seized.

1. In Ghani v Jones [1970] 1 QB 693, at 708, a case dealing with the return of seized items, Lord Denning MR said that the freedom of the individual, whose privacy and possession were not to be invaded except for the most compelling reasons, had to be balanced against the interests of society at large in finding out wrongdoers and repressing crime.

1. At 708-709, the Master of the Rolls set out the following proposition, which assists in understanding where that balance is to be struck:

"Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:

First: the police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offender should be caught and brought to justice.

Second: the police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).

Third: the police must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is an accessory to it, or at any rate his refusal must be quite unreasonable.

Fourth: the police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.

Finally, the lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards. "

1. Ghani has been followed in this jurisdiction in Tye v Commissioner of Police (1995) 84 A Crim R 147 at 151 per Studdert J, Greer v New South Wales Police Commissioner [2002] NSWSC 356; (2002) 128 A Crim R 586 per Bell J and most recently R v Elomar (No.11) [2009] NSWSC 385 per Whealy J.

1. The provisions of s 4 of the LEPRA make it clear that the common law, unless excluded by a provision of LEPRA, continues to apply.

1. Thus, the question becomes whether the provisions of Part 6 of LEPRA, and in particular, ss 82 and 85, have the effect, expressly or by implication, of excluding these common law principles in the circumstances of this matter.

Relevant principles of statutory interpretation

1. The starting point for statutory interpretation is to engage in a purposive construction, that is, to prefer a construction which promotes the purpose and/or the object underlying an act: Carr v Western Australian [2007] HCA 47; (2007) 232 CLR 138 at [5]-[6] per Gleeson CJ.

1. In Thompson v Australian Capital Television Pty Ltd [1994] FCA 1042; (1994) 54 FCR 513 at [29], Burchett and Ryan JJ said:

"Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence, the rule has been established (and should be adhered to: Corporate Affairs Commission of NSW v Yuill (1998) 100 ALR 609 at 610 per Brennan J) that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions: Hocking v Western Australian Bank (1909) 9 CLR 738 at 746; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 37 ALR 613 and 616."

1. As the plurality, Mason CJ, Brennan, Gaudron and McHugh JJ said in Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436-437:

"An insistence on the necessity for express words as in conformity with earlier judicial statements in England, which call for express authorisation by statute of any abrogation or curtailment of the citizen's common law rights or immunities. Thus in Raymond v Honey, Lord Bridge of Harwitch stated that 'a citizens right to unimpeded access to the courts can only be taken away by express enactment'. And, in Morris v Beardmore, Lord Scarmon observed: 'when for the detection, prevention, or prosecution of crime, parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that parliament intended the curtailment to extend no further than its express authorisation'. The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities, but has also determined upon abrogation or curtailment of them."

1. The context in which the High Court of Australia was considering the English authorities in Coco, was whether various statutory provisions conferred power on a judge to authorise entry onto premises for the purpose of installing and maintaining a listening device in circumstances where that entry would have otherwise have constituted a trespass.

1. At 435 their Honours noted:

"Every unauthorised entry upon private property is a trespass, the right of person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right ... In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law ..."

1. As well, it is necessary to have regard to the context and purpose of the statute. The principles of statutory interpretation have been recently restated with clarity by Allsop P, with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed, in Wilson v State Rail Authority of NSW [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] ff, in these terms:

" 12 I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34."

1. In particular, I note what Dixon CJ said in Commissioner for Railways (NSW) v Agalianos [1995] HCA 27; (1955) 92 CLR 390 at [5]:

"...the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."

Interpreting Part 6

1. It is necessary then to interpret the provisions of Part 6 of LEPRA and to consider how they might apply in the circumstances of the case at hand.

1. It is to be observed that Part 4 of LEPRA deals with search and seizure powers without a warrant generally. However, Part 6 deals specifically with search, entry and seizure powers relating to domestic violence. As can be observed, this Part gives a police officer in particular circumstances, the right to enter a dwelling and remain in the dwelling for the purpose of investigating whether a domestic violence offence has been committed, and to take action to prevent the commission or further commission of such an offence. In order for that power to be activated, the police officer must believe on reasonable grounds that a domestic violence offence has been, or is being, or is about to be committed. As well, the police officer must be invited by a person who apparently resides in the dwelling: s 82(1) of LEPRA.

1. Even if an occupier of the dwelling expressly refused authority to the police officer, the police officer may nevertheless exercise the power to enter and remain in the dwelling if an invitation is issued by a person who apparently resides in the dwelling and whom the police officer believes to be a victim of the domestic violence offence: s 82(3) of LEPRA.

1. It is important to note that s 83 requires a police officer to obtain a warrant if the police officer is denied entry to the dwelling, even in circumstances suggesting some urgency, eg to take action to prevent further domestic violence.

1. Importantly, s 85 limits the action which a police officer may take inside a dwelling. The action is limited to dealing with the domestic violence offence and the consequence of it. The police officer is entitled to investigate whether such an offence has occurred, render aid to any person who appears to be injured, exercise the lawful power to arrest a person and prevent the commission or further commission of a domestic violence offence.

1. Section 85 uses the phrase

"a police officer ... is to take only the action in the dwelling that is reasonably necessary ..." (Emphasis added).

1. The use of the word "only" in this phrase clearly limits the range of and the purposes of, the action which a police officer who enters a dwelling pursuant to a power in Part 6 can take.

1. It is clear that a police officer entering a dwelling in accordance with Part 6 of LEPRA does not have the power to engage in any search of or do anything else in, the premises unless for the purposes set out in s 85. With the exception of firearms or a dangerous article or implement, to which ss 86 and 87 refer, a police officer is not entitled by this statute to search for, or to seize any item unless the search and seizure is for one of the purposes set out in s 85, for example, to prevent the commission or further commission of a domestic violence offence.

1. There is no express provision in Part 6 of LEPRA which provides an exception to the restrictions in ss 82 and 85 where a "chance discovery" of evidence relating to the commission of an offence other than a domestic violence offence occurs.

1. In accordance with the principle discussed in Coco, and endorsed by the plurality, the statute should be interpreted as abrogating the common law to the limited extent necessary to give effect to its purpose.

1. The common law principle which the statute is abrogating is the fundamental right of a person not to be disturbed in their own premises without lawful authority, because it empowers a police officer to enter the premises but only in the circumstances and for the purposes identified in the legislation.

1. Legislation which seeks to override this basic common law right, does so in a way which seeks to "... balance long established individual rights against the public interest in combating crime": Corbett at [96] per Callinan and Crennan JJ. In enacting a statute permitting the use of search warrants, the NSW Attorney-General acknowledged the value of the continuing common law right in this way:

"... freedom from arbitrary searches was hard fought for in our constitutional history" :

see Corbett at [95], New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 27 February 1985 at 3859.

1. In Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1, the High Court of Australia considered sections 357F to 357H of the Crimes Act 1900. In all relevant respects, the provisions of Part 6 of LEPRA and in particular, sections 82 and 85, are in identical terms.

1. In the plurality judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Kuru, when dealing with the interpretation of the statute, their Honours said that in resolving an ambiguity, a particular construction was to be preferred [at 37]:

"...because of the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person's residence".

They further noted of the principle that:

"...it appears to be a principle against which the provisions of s 357F [now s 82] and s 357H [now s 185] of the Act were written. It defends an important civil right in our society. If Parliament were to deprive person of such a right, as to diminish that right, conventional cannons of statutory construction require that it must do so clearly". (footnotes omitted)

1. This judgment is an example of what was described in Rockett at [5] as insisting on strict compliance with statutory conditions when the statute permitted a lawful search, and what was described in Corbett as a "rule of strictness": see MacDonald v Beare [1904] HCA 22; (1904) 1 CLR 513 at 522 per Griffiths CJ.

1. The lawful authority here is that given under Part 6. Part 6 gives authority to enter premises and limits the extent of conduct and work which a police officer may do whilst on the premises. Essentially, if on the premises for the purpose of dealing with a domestic violence offence, then the police officer is limited to action dealing with that domestic violence offence. Unless this meaning is given to the overall interpretation of the statute, there is no heed being paid to the word "only" in s 85(1) of LEPRA.

1. In those circumstances, I am satisfied that the principles articulated by Lord Denning MR in Ghani to the extent that they describe the common law and its governing of circumstances such as this, are not applicable in the circumstances of entry under Part 6 of LEPRA.

1. I can see no room for any residual public interest of the kind which Lord Denning articulates is to be balanced against the common law right of an individual. On the contrary, I am satisfied that the effect of the statute, at least part 6 of LEPRA, is to exclude the common law having any effect, and to provide its own regime.

Application of Part 6 in the circumstances of this case

1. It is clear from the Magistrate's judgment that, given the absence of Mr Tamcelik from the apartment, it was not necessary for the police officer to be present in the apartment in order to prevent the commission or further commission, of a domestic violence offence. The only purpose for which the police officers were present in the apartment was to investigate whether a domestic violence had been committed and to render aid to anybody who appeared to be injured. There is no question of any injury being caused of a kind which needed aid to be provided by police, or any emergency service.

1. Therefore, the question is whether the police officers, at the time they left the balcony and proceeded inside the apartment, had concluded their investigation as to whether a domestic violence offence had been committed. The Magistrate was persuaded that they had. This was clearly open to him. The evidence supported this. The DPP did not submit otherwise in this Court.

1. In those circumstances, the police officers were not entitled to remain in the apartment after the conclusion of their investigation. Nor were they entitled, having entered the dwelling, to take any action other than action specified in s 85(1) of LEPRA. Once they had completed the purpose, then their right to be in the apartment had ceased and they were obliged to leave it.

1. Because the entry into the bedroom and the seizing of the impugned items happened after the conclusion of their authorised presence, the entry into the bedroom and seizure of the goods was not authorised by Part 6 of LEPRA.

1. It was not authorised by the chance discovery principle of common law because that principle of the common law had been abrogated by the statute.

1. Accordingly, I am satisfied that the Magistrate was correct to find that the search and seizure was unlawful.

1. In those circumstances I am not satisfied that either Grounds 1 or 2, although discursively expressed, have been made out.

Section 138 Evidence Act 1995

1. The third Ground in the summons contends that the Magistrate failed to exercise his discretion under s 138 Evidence Act to determine whether the desirability of admitting the impugned items into evidence outweighed by the undesirability of so doing.

1. The fifth ground deals with a question, essentially of procedural fairness, but which nevertheless touches upon the provisions of s 138 of the Evidence Act. Accordingly, an understanding of the terms of s 138 is an appropriate starting point.

1. Section 138 of the Evidence Act is in the following terms:

"Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

1. The proper application of s 138 of the Evidence Act was considered by the High Court of Australia in Parker v Comptroller General of Customs [2009] HCA 7; (2009) ALJR 494. French CJ traced the history of s 138, and said at [28] this:

"The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two-stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained."

1. The description of a two-stage approach was earlier to be found in a judgment of Branson J in the Federal Court of Australia in Employment Advocate v Williams [2001] FCA 1164; (2011) 111 FCR 20 at [78], where she said:

"Subsection 138(1), the terms of which are set out in [53] above, imposes on a court a two staged task. At the first stage, the court is to determine whether the evidence was obtained in one of the ways identified in par (a) or (b) of the subsection. If the court concludes that the evidence was so obtained, then the court is not to admit the evidence "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". The balancing exercise which constitutes the second stage of the task imposed on the court by subs 138(1) is, as the heading to the section recognises, commonly regarded as the exercise by the court of a discretion ... Under s 138(1), evidence which was obtained in one of the ways identified in pars (a) or (b) is not to be admitted unless the balancing exercise referred to in the subsection produces the result there specified. If the balancing exercise produces that result, s 56 of the Evidence Act dictates that the evidence must be admitted. That is, the balancing exercise which subs 138(1) requires the court to undertake involves the court in an exercise of judgment (ie the reaching of a conclusion based on the application of very general standards such that different minds might reasonably reach different conclusions on the same material) rather than in an exercise of simply identifying the preferable of two or more available options."

1. These decisions make it plain that there are two separate issues to be considered: first, impropriety or illegality, and secondly, whether the evidence ought nonetheless be admitted. The facts relating to each step are usually the same, and turn on the nature of the proceedings, the prosecution case, and the factual circumstances of the impropriety or illegality. But these are all matters, if s 138(1) is to be relied upon, that must be proved by the person tendering the impugned evidence, in order that it might be admitted.

1. Whilst there are two separate issues to be determined, the decisions to which I have referred and as well the judgment of Basten JA in the Court of Appeal in Parker v Comptroller General of Customs [2007] NSWCA 348; (2007) 243 ALR 574, do not mandate a two-step procedure for a court considering this question. It is not necessary, and ordinarily would not be the position, that a court would proceed first to hear evidence and argument on the first step, that is, a determination of illegality or impropriety, then deliver a decision which is followed by a second and separate hearing including separate submissions on whether the evidence ought nonetheless be admitted. Whilst, in exceptional cases, such an approach may happen, it is not the norm. Ordinarily, it would be expected that there would be one occasion for the adducing of all the necessary evidence, and one occasion for submissions by counsel to the Court. The submissions would ordinarily be expected to cover the alternative results, of whether the evidence is, or is not, found to be illegally or improperly obtained.

1. In the circumstances of this matter, where there had been no agreement between the parties about any special procedure being followed, and no indication from the bench that anything other than the ordinary course was to be followed, then it was incumbent on the prosecution to make clear in its oral submissions that it was seeking, in the event that the appropriate finding of illegality or impropriety was made, to rely on s 138(1) of the Evidence Act as a basis for the evidence to be admitted.

1. This the prosecutor did not do. It is not possible to identify from the transcript of oral submissions that the prosecutor actually made an application for a ruling that, although the search and seizure had been found to be unlawful, nevertheless the Court should exercise its discretion under s 138 of the Evidence Act to admit the items.

1. As can be seen from its terms, section 138 of the Evidence Act calls attention to the following - the probative value of the evidence; the importance of the evidence in the proceedings; the nature of the relevant offence; the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; and the difficulty, if any, of obtaining the evidence without impropriety or contravention of Australian law.

1. Nowhere in the transcript did the prosecutor articulate a submission which addressed any of these items. Nowhere did the prosecutor take the learned Magistrate to the probative value of the evidence of the impugned items although that may have been obvious. Nowhere did he make a submission about the importance of the evidence in the proceedings, although that, too, may have been obvious. Nowhere did he deal with the gravity of the impropriety or contravention. He did not seek in any way to suggest that the evidence could not properly have been obtained without impropriety or address any of the matters which required submission. He did not contend, for example, that a search warrant could not have been obtained in a sufficiently timely fashion, nor that there was any urgency about the deal to seize the items.

1. All that the prosecutor did, once the Magistrate had delivered his decision about the unlawfulness of the seizure, was to ask a question, in an inappropriately interrogative manner, of the Court as to whether the Court "was saying that it would not entertain a 138 application".

1. With due respect to the prosecutor, this was an inappropriate, and improper question. This was so for a number of reasons:

(a)   The terms of the question as to what the Court "... was saying" suggest that the prosecutor was seeking an interpretation of the reasons for the decision which the Magistrate had delivered;

(b) the prosecutor had never made a submission, during the course of his oral submissions on that day, indicating that he proposed to rely on s 138 of the Evidence Act as a basis for the admission of the evidence of the seizure of the impugned items;

(c)   his foreshadowing of such a submission prior to an adjournment on a previous day was neither an application seeking the admission of the evidence on such a basis; nor was it sufficient to bring the Magistrate's attention to the fact that such an application was being made, or was to be made, on the final day;

(d) his question did not suggest that he was making or else wanted to make, a submission that, having regard to the fact that the Magistrate had now determined that there was an impropriety in the seizure of the impugned items, nevertheless s 138 of the Evidence Act would apply and the evidence ought be admitted as a matter of discretion; and

(e)   he made no reference to any of the matters necessary or appropriate for the magistrate to give full and complete consideration to the matter.

1. It is not axiomatic that, if evidence is ruled to be illegally or improperly obtained, a prosecutor, or the party tendering the evidence, will seek to enliven the Court's discretion under s 138 of the Evidence Act. A court does not automatically proceed to consider that discretion. It needs to be invited so to do, by submissions clearly put which address the relevant matters to the balancing exercise which the section requires.

1. Here the prosecutor did not do so and, accordingly, no denial of procedural fairness which could amount to an error of law can be discerned.

1. But even accepting, contrary to this finding, that there was a sufficient indication to the court that it should exercise its discretion under s 138 of the Evidence Act, then it is clear that the prosecutor had the opportunity to make such submissions as he wished. First, he had that opportunity prior to the decision being delivered, as one would ordinarily do. There was no suggestion that his submissions at that time were cut short, stopped or in any way interrupted by the Magistrate. Secondly, even after the Magistrate announced his decision, and the prosecutor raised, in the inappropriate interrogatory style, a question about s 138 of the Evidence Act, he was not precluded then from indicating that he wished to make further submissions, and then making them.

1. In those circumstances, even if one took the half-hearted hint or suggestion of the prosecutor, from the statement at the conclusion of the previous day's hearing, or else from the question he raised, that he was making an application in accordance with s 138 of the Evidence Act, that, notwithstanding the ruling of the Magistrate, that the evidence was inadmissible, it should nevertheless be admitted as a matter of the Court's discretion, then in the absence of any further detail being provided, the Magistrate's firm decision to exclude the evidence was more than a sufficient disposition of the matter. The decision itself, that is, to reject the evidence, does not bespeak an error in the exercise of discretion of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499.

1. There is no suggestion that the Magistrate did not consider all of the relevant matters. In the course of his decision, in particular, the Magistrate had commented that there was no reason why a search warrant could not have been sought by the police officers when they saw the impugned items in the apartment. Neither of the grounds raise, or suggest, an inadequacy of reasons.

1. Of itself, having regard to the terms of s 138(3)(h), the fact that there was no urgency about seizing the goods, the goods were not about to disappear, Mr Tamcelik was not in the apartment, and there were facilities for obtaining a search warrant over the telephone which would have enabled the searching of the bedroom and the seizure of the items, a refusal by the Court to exercise any discretion which existed under s 138 of the Evidence Act was abundantly justified. Accordingly, both of these grounds of appeal fail.

Summary

1. In summary I have found:

(a) the right of the police officers to be on the premises was solely that articulated by Part 6 of LEPRA;

(b) by engaging in conduct which had nothing to do with the investigation of a domestic violence offence, or any of the other purposes articulated in Part 6 of LEPRA, the police officers were acting outside of the authorisation provided by LEPRA for them to be on the premises;

(c)   the search of the bedroom and the seizure of the items was unlawful;

(d)   the Magistrate's decision refusing to admit the evidence contained no error of law, and there was no denial of procedural fairness in the way in which the Magistrate went about his decision making;

(e)   there is no basis for finding any error of law in the decision of the Magistrate to dismiss the proceedings.

1. I make the following orders:

(1)   Summons dismissed.

(2)   The plaintiff to pay the defendant $3,250 by way of costs thrown away by the amendment of the summons, otherwise each party to pay their own costs.

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Decision last updated: 07 September 2012