G A v The Queen; M M v The Queen; P J v The Queen
[2012] VSCA 44
•15 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0303
| GA | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
S APCR 2011 0304
| MM | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
S APCR 2011 0306
| PJ | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE, REDLICH and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 February 2012 | |
DATE OF JUDGMENT: | 15 March 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 44 | |
RULING APPEALED FROM: | R v [GA & Ors] (Unreported, County Court of Victoria, Judge Coish, 6 December 2011) | |
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CRIMINAL LAW – Applications for leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 – Whether trial judge erred in exercising his discretion under s 138 of the Evidence Act 2008 – Whether motor vehicle seized illegally – Whether order for search of motor vehicle beyond power and in contravention of Australian law – Drugs, Poisons and Controlled Substances Act 1981, ss 81 and 82 – Whether error in finding that failure by police officer properly to swear affidavit in support of the search warrant was not a deliberate or reckless act – Whether error in finding that alteration of Result of Search document by police officer was of little consequence – Whether error in admitting evidence – Effect of Evidence(Miscellaneous Provisions) Amendment (Affidavits) Act 2012 – Applications for leave dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant GA | Mr S N Tyrrell | Garde-Wilson Lawyers |
| For the Applicant MM | Mr S A Shirrefs SC | Garde-Wilson Lawyers |
| For the Applicant PJ | Mr D E Whitchurch | Melasecca Kelly & Zayler |
| For the Crown | Mr G J C Silbert SC with Mr P J Doyle and Mr D P Hannan | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
REDLICH JA
HARPER JA:
Introduction
On 6 December 2011, his Honour Judge Coish delivered a careful and thorough ruling on several difficult points of law which arose for decision before the empanelment of a jury in the trial of GA, MM and PJ. This is an application for leave to appeal against that interlocutory ruling. The applicants are the accused.
They have been charged with trafficking, between 29 January 2010 and 11 March 2010, in a commercial quantity of methylamphetamine, a drug of dependence. GA has also been charged with two other offences. First, it is alleged that, on 15 February 2010, he trafficked in methylamphetamine. The second allegation is that, on 11 March that year, he was in possession of that drug. For his part, MM faces not only the charge that he trafficked in a commercial quantity of methylamphetamine, but also the two additional charges: first that, on 17 February 2010, he was in possession of that drug; and, secondly, that on 11 March 2010, he dishonestly handled stolen goods.
The factual and legal background
These charges followed an investigation which began in November 2009. It included a series of police telephone intercepts, the targets of which were GA and PJ. These led the police from the Fawkner Divisional Response Unit to conclude that drugs would be transported by road from Sydney to Melbourne on 17 February 2010 in one of five possible vehicles. Among that five was a Toyota Camry sedan with the registered number WRO 796.
The power to issue a warrant to search a vehicle for drugs is granted by s 81 of the Drugs, Poisons and Controlled Substances Act 1981. It arises in a number of circumstances. One of these is when a judicial officer is satisfied by affidavit, made by an officer of the requisite status or rank, that there is reasonable ground for believing that there is, or will within 72 hours be, on or in any land (including any vehicle on or in that land) or on or in a particular vehicle located in a public place, any thing which there is reasonable ground to believe will afford evidence of the commission of an offence against the Act. On being so satisfied, the judicial officer may issue a warrant authorising a member of the police to enter and search the land or vehicle for the thing described in the warrant. If it is found, it is to be brought to a court ‘so that the matter can be dealt with according to law.’
It is, we think, clear that the warrant must identify, at least in general terms, the evidence (or thing) to which the search is to be directed. It is likewise clear that, if the intention is to search a vehicle located in a public place, the warrant must identify the particular vehicle concerned.
In this case, the police did not have a warrant. According to them, this was because they did not know which of the five possible vehicles would be chosen to bring drugs from Sydney to Melbourne. It is a plausible excuse. There is no reason to disbelieve it.
The police, however, had another source of authority for the interception and search of the Toyota. They relied on the power given them by s 82 of the Act. It is not in dispute that, by that provision, a police officer may search a vehicle which the officer reasonably suspects is carrying a drug of dependence in respect of which an offence has been committed, or is reasonably suspected to have been committed, and which is being driven on a public road.
On the afternoon of 17 February 2010, Sergeant Maurice Ryan and Senior Constable Tim Noisette of the Fawkner Divisional Response Unit were in an unmarked police vehicle on the Hume Highway near Benalla. Mr Ryan had previously arranged for Benalla police to respond to a call to intercept whichever of the five suspect vehicles might be seen.
The call came at approximately 6.20pm. A short time later, the two Fawkner police officers saw Toyota WRO 796 and the Benalla police vehicle parked on the side of the road. The driver of the Toyota was questioned. He said that his name was Pat James. It is now settled that his real name was that of the accused PJ. The Toyota was searched. No drugs were found.
Sergeant Ryan nevertheless remained confident that drugs were somewhere concealed in the car. It may be inferred, even without the benefit of hindsight, that that confidence was justified. After all, the information about vehicle no WRO 796 being one of five which might be making the journey from Sydney on 17 February had turned out to be correct. The fact that PJ was in it was a further ground for thinking that it was transporting illegal drugs.
Sergeant Ryan therefore decided to do a more thorough search at the Fawkner Police Station. He says that he understood that he did not need any further authority before transporting the Toyota to that destination. Arrangements were made accordingly. At 1.30am on Thursday 18 February, the suspect car arrived in Hadfield (the locality in which the Fawkner Police Station is situated) and was placed under the general authority of Senior Sergeant Graeme Banks, the Officer in Charge of the Fawkner Police.
Both the prosecution and defence have since conducted this case on the basis that the removal of the Toyota to the Fawkner Police Station was illegal. That conclusion is not necessarily correct. Section 82 of the Act applies not only to a vehicle in a public place, but also – and equally – to (among other things) a ‘vessel, underway or not’, where a police officer has reasonable grounds for suspecting that there is on that vessel ‘a drug of dependence in respect of which an offence has been committed, or is reasonably suspected to have been committed’. Those preconditions having been met, the officer ‘may with such assistance as he thinks necessary’ search the vessel.
It may well be necessary, in order to give effect to this power, to move the vessel to a harbour safe from rough seas and bad weather, and where the assistance of men and facilities to carry out a search – which might otherwise be impossible either at sea or on land – may be available. If this is so with vessels, it may also be the same with vehicles, since the section provides no obvious reason to differentiate between them. With vehicles, as with vessels, the officer may conduct the search with such assistance as he or she thinks necessary.
There is another consideration supporting the conclusion that no warrant was necessary. There is nothing in the legislation, or in the prescribed form of the warrant, which would cover the issue of a warrant for the removal of a vehicle from a public road to a site at which an appropriately thorough search might be carried out. The applicants did not in their submissions put forward any answer to the proposition (which, it must be added, the Crown never advanced) that it is by no means certain at what point the warrant, assumed by the parties to be necessary, became so. In other words, the point at which the authority of s 82 was assumed to expire, and the need for the authority of a warrant was assumed to arise, was not explored.
Finally, the parties did not advert to the fact that the prescribed form of warrant makes no ready provision for the giving of authority to search a vehicle which is not on public land and which is thought to contain something which might afford evidence of the commission of an offence. That, however, is precisely the position of the Toyota once it arrived at the Fawkner Police Station. Were the prescribed form to be used as authority to search that vehicle, as then situated, the prescribed form would require careful modification so as to remain ‘to the effect of the form of Schedule Ten’[1] while identifying with specificity the authority which it conferred.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 81(2).
The failure to address these issues is regrettable. It is at least arguable that everything which followed the interception of the Toyota on the Hume Highway near Benalla was covered by the authority, conferred by s 82, to search that vehicle ‘with such assistance as ... necessary’. Were that argument made good, so much of the case of the applicants as relies on the illegality of the warrant which the Fawkner police eventually obtained, would fail.
But this was not the position taken by the Crown on this appeal. Nor was it the belief of the police once the Toyota had arrived at the Fawkner Police Station. It was then thought that whatever powers might have been conferred by s 82 were exhausted; and, clearly enough, the common law was not a source of authority for the search which the police had in mind. For this, a warrant, and an affidavit in support of its issue, was thought to be needed. Accordingly, on 18 February 2010, Sergeant Ryan purported to swear an affidavit described by its heading as an ‘affidavit for a search warrant’. In it, he deposed to the telephone intercepts, to the detection and interception of Toyota WRO 796, to the subsequent seizure of the car, and to its being conveyed to the Fawkner Police Station. He also deposed to telephone intercepts in which on 17 February at 8.23pm an unidentified male told another suspect in the drug-trafficking enterprise said to involve the accused that ‘the police have got Johnny’; and on 18 February at 12. 41, an associate of GA told him that ‘something bad has happened; it’s no good.’ All of this amply supported Mr Ryan’s assertion, which appears at paragraph [28] of his affidavit, that ‘Investigators are of the belief that drugs have been concealed internally within the vehicle and to locate such drugs an exhaustive internal search of the vehicle will need to be conducted.’
There is no suggestion that the contents of Sergeant Ryan’s affidavit are not true. But the prosecution acknowledge that the affidavit was not attested to in accordance with law. The form of the oath is prescribed by Part 1 of the Third Schedule to the Evidence (Miscellaneous Provisions) Act 1958, and must include the words ‘by almighty God’ (or indicate that it was sworn in the name of a god recognised by the deponent’s religion). The words ‘by almighty God’ were, by Sergeant Ryan’s admission, omitted from the oath taken by him when he was attesting to the affidavit in question.
It is submitted on behalf of the applicants that this defect destroys any capacity which the affidavit might have to support the search warrant which was later issued in reliance upon it.
On the same day, Sergeant Ryan prepared that warrant. It is in the form prescribed by Schedule 10 of the Act. It is headed ‘Search Warrant’, and includes portions designed to be crossed out or completed so as to meet the circumstances of the individual case. Portions of the warrant in question have been crossed out, and other portions have been completed. The end result, however, is a document which does not meet the circumstances of this case. On the contrary, the deletions and additions have had the effect of turning the document into something of a nonsense.
The warrant ought to have been drawn on the basis that the object of the exercise was to obtain authority to search the Toyota for ‘any thing which there is reasonable ground to believe will afford evidence of the commission of an offence under [the] Act’. Instead, it recites that the issuing magistrate is satisfied by the affidavit of Sergeant Ryan ‘that there is reasonable ground for believing that there is at the Fawkner Police Station vehicle WRO 796 … in respect of which an offence under the Drugs, Poisons and Controlled Substances Act … has been or is reasonably suspected to have been committed’. It then authorises the sergeant to enter the police station and search ‘the land or specified vehicle located in a public place’ for the things specified in the warrant and, if any of those ‘things be found, to seize and carry them before the Magistrates’ Court so that the matter may be dealt with according to law.’
Only one thing, however, was ‘specified’ in the warrant. It was the Toyota sedan. The warrant makes no reference to drugs. Yet drugs, not the vehicle, were the object of the search; the vehicle was merely the site in which it was thought the drugs might be concealed. The whereabouts of the Toyota were, of course, not in doubt. Nor was there ever any intention to bring that vehicle before any court.
The warrant was nevertheless issued by a magistrate. This was a failure by him properly to carry out his duty. It should not have been issued unless it specifically authorised a search for drugs, and was otherwise coherent. Had the magistrate read it with any real care, he would, or certainly should, have realised that it met neither standard.
It was nevertheless on the strength of the Ryan affidavit and the warrant upon the basis of which it was issued that, at the Fawkner Police Station on 18 February at 5.05pm, the dog squad conducted a search using canine drug detection methods. It may be assumed that it would not have been feasible to conduct such a search in or on the Hume Highway at all, let alone in the very late afternoon or early evening.
The canine inspection at Hadfield failed to find any drugs; but, of itself, that says nothing about the reasonableness of the attempt. Sergeant Ryan remained of the belief that drugs were somewhere on or in the Toyota. He therefore took steps which the Crown maintains were designed to ensure that the car was lawfully transported from Fawkner to the Police Forensics Science Centre at McLeod.
The first move was to arrange for a fellow officer, Senior Constable Drew Laughlin, to complete a ‘Result of Search’ form. It is an internal police document, not required by law. Its place in the scheme of things springs from the requirement - included in the warrant – that the person executing the warrant cause anything seized as a result of that execution to be taken to court to be dealt with according to law. The form is designed to record what has been seized, what has been taken to court, and what relevant court orders have been made as a result.
On this occasion, when presented to Magistrate FitzGerald at the Broadmeadows Magistrates’ Court (Mr Fitzgerald was not the magistrate who issued the warrant), the result of search form stated that a copy of the warrant had been executed by Mr Laughlin by being served on Senior Sergeant Banks at 10.30am on 19 February. It also stated that the Toyota had been seized, along with five other items such as mobile phones, a SIM card and some clothing.
It is not in dispute that Mr FitzGerald signed the form. It includes his signature above a direction by him that ‘the item numbered 1 [the Toyota] may be conveyed to the McLeod Forensic Services Centre for analysis’. It further records that this direction was ‘issued at Broadmeadows at 12.17pm on 19/2/10’.
Judge Coish found that, after the form had been signed by Mr FitzGerald, Mr Laughlin altered it. The officer not only amended the time of service on Mr Banks from 10.30am on 19 February to 5.05pm the previous day, but also placed ticks in boxes which together indicated that both a digital image of the six items and the items themselves had been brought before the Magistrate to be dealt with according to law.
After the Toyota arrived at McLeod, a search of a kind impossible at the Fawkner Police Station – let alone beside the Hume Highway in rural Victoria – was undertaken. Access was had to the sealed area underneath the front console. There, the police found nearly one kilogram of methylamphetamine. Sergeant Ryan’s suspicions were confirmed.
The grounds of appeal
The applicants claim that various failures by the police to adhere to the law should have the result that the drugs found under the Toyota not be admitted in evidence. The trial judge disagreed, but certified for an interlocutory appeal pursuant to s 295 of the Criminal Procedure Act 2009. There were two grounds of appeal, the second of which sought to impugn the lawfulness of the telephone intercepts. The first ground of appeal contained a number of parts, and is in the following form:
1.The learned trial judge erred in the exercise of discretion pursuant to s 138 of the Evidence Act 2008:
(a)by failing to have any regard to the advantage gained by police as a result of the illegal seizure of the motor vehicle on 17 February 2010 and subsequent contraventions and improprieties; and
(b)by failing to have any regard to the fact that the search of the motor vehicle on 22 February 2010 was undertaken pursuant to an order given by a magistrate that was beyond power and thereby in contravention of an Australian Law; and
(c)by finding that the failure of Sergeant Ryan to swear the affidavit in support of the search warrant on oath was not a deliberate or reckless act; and
(d)by finding that the entry of false information by Senior Constable Laughlin in the result of search [form] dated 19 February 2010 prior to submitting it to a magistrate was not a deliberate or reckless act; and
(e)by finding that the result of search document signed by a magistrate on 19 February 2010 had no legal significance and therefore its subsequent alteration by Senior Constable Laughlin was of little consequence; and
(f)by failing to find in all the circumstances that the desirability of admitting the evidence obtained improperly and in contravention of Australian laws did not outweigh the undesirability of admitting the evidence.
These grounds of appeal require the Court to determine whether any evidence was obtained improperly or in contravention of an Australia law or in consequence of an impropriety or of a contravention of an Australian law. By s 138(1) of the Evidence Act 2008, such evidence is not to be admitted unless the desirability of admitting that evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Section 138(3) is important. It provides that, without limiting the matters that the Court may take into account in performing the balancing exercise required by sub-s (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, course 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 the 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 the impropriety or contravention of an Australian Law.
Ground 1(a)
Ground 1(a) of the grounds of appeal assumes that the Toyota was illegally seized on 17 February, and that the police were guilty of ‘subsequent contraventions and improprieties’. Assuming that there were improprieties as alleged, the advantage which they gained thereby was the discovery of a large cache of drugs. That advantage can only tell against the applicants.[2] Society has an interest in bringing those involved in trafficking in drugs to conviction. There is no substance in the contention that his Honour failed to give proper consideration to that advantage. Ground 1(a) therefore fails.
[2]Bunning v Cross (1978) 141 CLR 54, 74 (Stephen and Aickin JJ).
Ground 1(b)
Ground 1(b) assumes that the direction given by Magistrate FitzGerald was beyond power and so contravened an Australian law; and that, accordingly, the search undertaken at McLeod, which resulted in the discovery of the drugs, was unlawful. For the reasons given above, however, we are not prepared to conclude that the police required the direction of a magistrate before undertaking the final search of the Toyota. Were a warrant a necessary step in the process, however, the warrant prepared by Mr Ryan would not authorise a search for drugs; and the magistrate’s direction, which refers to an ‘analysis’ of the Toyota is not happily expressed either. These defects, even assuming they are real, nevertheless carry little weight when set against the advantage of admitting evidence of the discovery of almost a kilogram of methylamphetamine. Ground 1(b) therefore fails.
Ground 1(c)
The defect in Sergeant Ryan’s affidavit falls into the same category. On the assumption that the making of that affidavit was a necessary prelude to the McLeod search, we are nevertheless of the opinion that the defect in its attestation is a matter of no moment. First, there is nothing to suggest that the affidavit is in any respect inaccurate, let alone deliberately misleading. On the contrary, there is every reason to conclude that its contents are true. Secondly, the judge was, in our opinion, entitled to find that it was completed in good faith. The applicants rely upon what they say was an admission by Sergeant Ryan in cross-examination. It was put to him that, by omitting the words ‘by Almighty God’ he avoided ‘being exposed to the penalties of perjury.’ He responded: ‘yes’. He also accepted that a magistrate, not knowing of a defect, would be misled and that ‘these are things that [he was] conscious of … during [his] 18 years of service.’
We do not take Sergeant Ryan’s answers as being an acknowledgement by him that he had for 18 years, including the time he spent in preparation of the affidavit for use in the present case, deliberately contravened the law so as to avoid possible perjury charges and so as to mislead judicial officers. The judge found that Mr Ryan’s evidence about the making of the affidavit was ‘frank, direct and reliable’, and that his ‘impropriety’ in failing to have correctly taken the oath to have been neither a deliberate or reckless act, but rather careless. We agree. In our opinion a fair reading of the transcript brings one to the conclusion that Mr Ryan intended his affidavit to reflect the truth – as, indeed, it did.
There is another barrier to the success of this ground. Since the hearing of this appeal, the Evidence(Miscellaneous Provisions) Amendment (Affidavits) Act 2012 has been passed and come into operation. It inserts s 165 into the Evidence (Miscellaneous Provisions) Act 1958. By the new section, if an affidavit signed before 12 November 2011 (as was Mr Ryan’s affidavit) by a person (in this case, Mr Ryan) and by a person duly authorised to administer oaths (in this case, Sergeant Brett Pattie of the Fawkner Division Response Unit) contains words indicating that the first person (Mr Ryan) states that the affidavit is made on oath or affirmation, then it is not necessary that the oath or affirmation be made orally.
For these reasons, Ground 1(c) is not made out.
Grounds 1(d) and 1(e)
The next two grounds of appeal concern the report prepared by Mr Laughlin and taken by him to Magistrate FitzGerald for signature. The applicants contend that the judge erred in finding that the insertion by Senior Constable Laughlin of false information into the result of search form before that form was submitted to the magistrate was not a deliberate or reckless act. But his Honour heard evidence from Mr Laughlin on the voir dire, and was entitled to come to the conclusion he expressed in his ruling. What is more, the false information was not relevant to the magistrate’s decision to direct that the Toyota be sent to the McLeod Centre. The false entries did not materially influence anything. Moreover, it was in our opinion at least arguable that the direction of the magistrate was not required. If this is so, then any alteration of the report by Senior Constable Laughlin was indeed of little consequence, although it was improper for him to alter the document.
Grounds 1(d) and 1(e) are not made out.
Ground 1(f)
It is contended that the judge erred by failing to find that the desirability of admitting the evidence obtained improperly and in contravention of Australian law did not outweigh the undesirability of admitting the evidence. We do not agree. In the first place, we doubt that there was any breach of Australian law. At the least, the position is so uncertain as to indicate that leave to appeal should not be granted. Secondly, the breaches alleged are, save for the defects in the warrant, minor; and the desirability of admitting the evidence clearly outweighs the undesirability of such admission. Ground 1(f) therefore fails.
General conclusions
The trial judge was not asked to rule on the legality of the transportation of the Toyota from Benalla to Melbourne. Putting that issue aside, however, his Honour gave comprehensive and unimpeachable reasons for the exercise of his discretion to refuse to exclude the evidence of the seizure and search of the motor vehicle. The impugned conduct of the investigators, if it be unlawful, was - as the trial judge found – neither knowingly so, nor designed to gain an advantage that could not be achieved by lawful means. The conduct of the police was thus to be placed at a point in the spectrum which, as explained in DPP v Marijancevic[3], did not, in a sound exercise of a discretionary judgment, require the exclusion of the evidence.
[3][2011] VSCA 355.
On the other hand, the issues ventilated on this appeal do raise questions concerning the adequacy of the investigators’ training and the need to ensure that sound advice is available when difficult questions arise during the course of an investigation. In this case, much expense and much trouble to a number of persons might have been avoided had adequate training and advice been available.
The second ground of appeal sought to impugn the lawfulness of the telephone intercepts from which the police obtained the information which resulted in the interception of the Toyota near Benalla. There are powerful reasons why the interlocutory appeal process does not lend itself to the resolution of such an issue. The ruling of the trial judge concerning the question whether the telephone intercepts had been obtained lawfully, followed an extremely lengthy voir dire. As senior counsel for MM fairly conceded, his Honour’s ruling involves a complex question of statutory interpretation. Any assessment of its correctness would involve an examination of the history of the relevant legislation. Furthermore, standing in the way of senior counsel’s submissions are two decisions of judges of the Supreme Court of other states dealing with the same Commonwealth provisions. We should not depart from these decisions unless it became apparent that they are plainly wrong; and this was something that counsel for MM (whose submissions were adopted by the other applicants) acknowledged would require lengthy and difficult submissions in which the statutory scheme would have to be analysed in detail.
In addition, the second ground of appeal gives rise to factual issues upon which the proper construction of the legislation depends but which may be disputed. The relevant evidence can be called at the trial. It is not appropriate that this Court be called upon to receive that evidence on an interlocutory appeal.
When the present appeal was called on it was for these reasons accepted by the parties that the circumstances did not allow for the proper consideration of the issues raised by the second ground of appeal. Accordingly, the Court exercised its discretion not to deal with them by this means, and heard no argument on this ground.
In the result, the applications for leave to appeal must be dismissed.
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