Henderson v Billing
[2015] ACTSC 226
•18 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Henderson v Billing | |
Citation: | [2015] ACTSC 226 | |
Hearing Date(s): | 15 July 2015 | |
DecisionDate: | 18 August 2015 | |
Before: | Burns J | |
Decision: | The appeal is dismissed. | |
Category: | Principal Judgment | |
Catchwords: | CRIMINAL LAW – Particular Offences – possessing a prohibited substance. APPEAL – Appeals from Magistrates – where search warrant not properly issued – ss 194 and 205 of the Crimes Act 1900 (ACT) –- where warrant issued by Magistrate and police officer are not in substantially the same form - whether search authorised by s 188 of the Drugs of Dependence Act 1989 (ACT) – meaning of the phrase “order of the court”– held search unlawful – applied test in s 138 of the Evidence Act 2011 (ACT) – held evidence of search and seizure should be admitted – appeal is dismissed. | |
Legislation Cited: | Crimes Act 1900 (ACT) ss 194, 205 Customs Act 1901 (Cth) s 198 | |
Cases Cited: | Hilton Wells (1985) 157 CLR 57 | |
Parties: | Eleanor Henderson (Appellant) Andrew Billing (Respondent) | |
Representation: | Counsel Mr R Davies (Appellant) Ms S Jowitt (Respondent) | |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | ||
File Number(s): | SCA 81 of 2014 | |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 3 September 2014 Case Title: Eleanor Crystal Henderson v Andrew Mark Billing Citation: CC13/6009 | |
BURNS J:
On 3 September 2014, the appellant was convicted after a contested hearing in the Magistrates Court of an offence of possessing a prohibited substance, namely heroin, contrary to s 171 (1) (b) of the Drugs of Dependence Act 1989 (ACT). She appealed from that conviction on the following ground:
The Magistrate erred in finding that a search of the appellant’s premises by police, against her wishes, during which drugs were found, was lawful, and further in admitting evidence of same over objection.
Particulars
The police search of the appellant’s premises was unlawful as there was no valid warrant authorising the search. Nor did the emergency powers under s 188 of the Drugs of Dependence Act 1989 (ACT) apply.
(Emphasis as per original)
Facts
On 8 May 2013, members of the Australian Federal Police (AFP) assisted Australian Customs Officers in the execution of an s 198 Customs Act 1901 (Cth) search warrant at the premises where the appellant was living. The appellant and a male person were at the premises. During the course of the search, the appellant told a Customs Officer that she had heroin in a drawer in her bedroom. This was overheard by the respondent, a member of the AFP. The search warrant under s 198 of the Customs Act 1901 did not authorise the seizure of illicit drugs.
The respondent then conducted a recorded interview with the appellant, who again admitted to there being heroin on the premises and admitted it was hers. She refused the respondent permission to search the house.
The respondent then contacted a Magistrate (the issuing Magistrate) by telephone and applied for a warrant to search the premises pursuant to ss 194 and 205 of the Crimes Act 1900 (ACT). The respondent gave evidence before the Magistrate hearing the charge, who was not the issuing Magistrate, that he applied for the warrant by telephone because there would not be sufficient time before the Customs officers concluded their search for him to apply in person, and he was concerned that the heroin could be destroyed or removed.
The relevant provisions of the Crimes Act 1900 are ss 194 and 205:
194 When search warrants can be issued
(1)An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
(2)An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that the person possesses, or will within the next 72 hours possess, any evidential material.
(3)If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person shall state that suspicion, and the grounds for that suspicion, in the information.
(4)If the person applying for the warrant is a police officer and has, at any time previously, applied for a warrant relating to the same person or premises, the person shall state in the information particulars of those applications and their outcome.
(5)A warrant shall include statements of the following matters:
(a)the offence to which the warrant relates;
(b)a description of the warrant premises, or the name or description of the person to whom it relates;
(c)the kinds of evidential material that are to be searched for under the warrant;
(d)the name of the police officer who is to be responsible for executing the warrant (unless he or she inserts in the warrant the name of another police officer);
(e)the period, not exceeding 7 days, that the warrant remains in force;
(f)subject to subsection (9), the times when the search is authorised.
(6)For a warrant in relation to premises, the warrant shall state—
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in subsection (5) (c)) found at the premises in the course of the search that the executing officer or an assisting officer believes on reasonable grounds to be—
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is a serious offence; or
(iii) target material or tainted property;
NoteTarget material and tainted property are relevant to the Confiscation of Criminal Assets Act 2003
if the executing officer or an assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or an assisting officer suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(7)For a warrant to search a person, the warrant shall state—
(a)that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in subsection (5) (c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or an assisting officer believes on reasonable grounds to be—
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is a serious offence; or
(iii) target material or tainted property;
Note Target material and tainted property are relevant to the Confiscation of Criminal Assets Act 2003.
if the executing officer or an assisting officer believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b)the kind of search of a person that the warrant authorises.
(8) Subsection (5) (e) does not prevent the issue of successive warrants in relation to the same premises or person.
(9) A warrant shall not be expressed to authorise a search at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the issuing officer is satisfied that—
(a) it would not be practicable to conduct the search at another time; or
(b) it is necessary to do so to prevent the concealment, loss or destruction of evidence relating to the offence.
(10) If the application for the warrant is made under section 205, this section applies as if—
(a) subsections (1) and (2) referred to 48 hours rather than 72 hours; and
(b) subsection (5) (e) referred to 48 hours rather than 7 days.
205Warrants by telephone or other electronic means
(1)A police officer may make an application to an issuing officer for a warrant by telephone, telex, fax or other electronic means—
(a)in an urgent case; or
(b)if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2)The issuing officer may require communication by voice to the extent that is practicable in the circumstances.
(3)An application under this section shall include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4)If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered the further information (if any) that the issuing officer required, is satisfied that—
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 194.
(5)If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant, the day and the time when it was signed.
(6)The applicant shall then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer, the day and the time when the warrant was signed.
(7)The applicant shall, not later than the day after the day of expiry of the warrant or the day after the day when the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8)The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9)If—
(a)it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b)the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
The issuing Magistrate would ordinarily have in his or her possession a blank form of a warrant that would usually be issued under s 194 of the Crimes Act 1900, which he or she would complete and sign as required by s 205 (4), if the requirements of the section were met. On this occasion, unfortunately, the issuing Magistrate did not have a blank form of warrant with her when the respondent applied for the warrant by telephone. The respondent did have a blank form of a s 194 warrant and, by reference to that form, he advised the issuing Magistrate of the particulars of the proposed warrant, including the address of the premises the subject of the warrant, the evidential material that the respondent suspected would be on the premises and the name of the police officer who would be responsible for executing the search warrant (the respondent). The respondent completed a form of warrant incorporating particulars he proposed to the issuing Magistrate, and she purported to issue the warrant pursuant to s 205 of the Crimes Act 1900. The issuing Magistrate made notes of the particulars of the purported warrant on a sheet of paper and signed it.
The respondent conducted a search of the applicant’s premises, relying on the warrant that the issuing Magistrate had purportedly issued. A small quantity of heroin was found in a drawer in the appellant’s bedroom.
The proceedings in the Magistrates Court
The appellant objected to evidence of the search and location of the heroin in the proceedings in the Magistrates Court on the ground that the warrant was not properly issued and accordingly the search was unlawful. The Magistrate did not decide the issue, instead ruling that, even if the search warrant issued pursuant to s 205 was invalid, the search was nevertheless lawful as authorised by the provisions of s 188 of the Drugs of Dependence Act 1989 (ACT) (the DODA), which provides:
188 Searches in emergencies
(1)A police officer may only exercise a power under this section if the police officer believes, on reasonable grounds—
(a)that it is necessary to do so to prevent the concealment, loss or destruction of any thing connected with an offence; and
(b)that the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant issued under section 187 or of an order of a court.
(2)A police officer may—
(a) search a person or the clothing that is being worn by, and property in the apparent control of, a person suspected by the police officer to be carrying any thing connected with an offence; or
(b)enter any place at or in which the police officer believes on reasonable grounds that any thing connected with an offence is situated; and
(c)seize any such thing that he or she finds in the course of that search, or at or in the place.
(3)A police officer who believes on reasonable grounds that a person is, without lawful authority or reasonable excuse, carrying any thing connected with an offence may, for this section, detain that person.
(4)A police officer who believes on reasonable grounds that any thing connected with an offence is on or in a vehicle, vessel or aircraft may, for this section, stop that vehicle, vessel or aircraft.
There was evidence before the Magistrate that the respondent believed that it was necessary to conduct an immediate search of the premises in order to avoid the concealment, loss or destruction of the heroin the appellant admitted to possessing. The Magistrate found that this belief was based on reasonable grounds. Neither the respondent’s belief, nor the Magistrate’s finding that the belief was held on reasonable grounds, is challenged in this appeal. The Magistrate also accepted that the circumstances were of such urgency as to require the immediate exercise of the power to search granted by s 188 without the authority of a warrant issued under s 187 “or of an order of a court”. It was submitted by the appellant that the test in s 188 (2) had not been met as the respondent had applied for an order of a court, being a warrant pursuant to ss 194 and 205 of the Crimes Act 1900. Thus, the appellant argued, it could not be said that the respondent believed the circumstances were of such urgency as to require the exercise of the power to search without an “order of the court”, as the respondent was under the impression that he had indeed obtained one pursuant to s 205 of the Crimes Act 1900.
For a search warrant to be issued under s 187 of the DODA, an information on oath must be laid before a Magistrate alleging reasonable grounds for suspecting that within 28 days there will be a thing or things of a particular kind connected with a particular offence in a particular place (s 187 (3)).The evidence of the respondent that he believed that it was not feasible to obtain a warrant under s 194 of the Crimes Act 1900 by placing an information on oath before an issuing officer, essentially a Magistrate, without the risk of loss or destruction of evidence must apply equally to the possibility of him obtaining a warrant under s 187 of the DODA.
The Magistrate accepted that the circumstances confronting the respondent were of such seriousness and urgency as to make it infeasible to delay the search while a warrant was obtained under s 187. He then considered the meaning of the phrase “an order of a court” in s 188 (1) (b), concluding that it did not include a warrant issued pursuant to ss 194 and 205 of the Crimes Act 1900, as a “warrant is not generally regarded as an order of a court”, citing the decision of the High Court in Hilton v Wells (1985) 157 CLR 57. The Magistrate determined that the provisions of Part 10 of the Crimes Act 1900 were intended to vest the power to issue search warrants on individual magistrates as designated persons, and not to vest the power in the court.
The Magistrate then considered the Explanatory Statement accompanying the DODA, which states with regard to s 188:
Section 188 provides for searches without either consent, arrest or warrant in emergencies. To use this power the police officer must be able to demonstrate that he or she believes on reasonable grounds that it is necessary to do so to prevent concealment, loss or destruction of a thing connected with an offence and that the circumstances are so serious and urgent that the search has to be done immediately and without the authority of a Magistrate or Court. It also empowers the officer to detain the person for the short time that he or she is being searched and to stop vehicles, vessels and aircraft. It is expected that the Courts will be careful to ensure that this power is only used in genuine emergency situations. The power is necessary to ensure that those involved in the elusive business of drug trafficking cannot use the search procedures to effect an escape or to hide evidence. Without section 188, modern transportation and technology would make the procedures avoidable where the offender is a sophisticated trafficker of drugs.
The Magistrate recognised that the phrase “an order of the court” was also used in s 184 of the DODA:
184 Search and seizure
(1) A police officer may search a person or the clothing that is being worn by, or property in the immediate control of, a person and may seize any thing that he or she suspects on reasonable grounds to be connected with an offence that is found in the course of the search, if, and only if, the search and seizure is made by the police officer—
(a)after obtaining the consent of the person to the search in accordance with section 185; or
(b)in accordance with section 186 on taking the person into lawful custody in relation to an offence; or
(c)under a warrant issued under section 187; or
(d)in circumstances of seriousness and urgency, in accordance with section 188; or
(e)under an order made by a court; or
(f)otherwise under a provision of a law in force in the ACT.
(2)A police officer may enter any place, and may search for and seize any thing that he or she suspects on reasonable grounds to be connected with an offence that is found on or in the place if, and only if, the search and seizure is made by the police officer—
(a)after obtaining the consent of the occupier of the place to the entry in accordance with section 185; or
(b)under a warrant issued under section 187; or
(c)in circumstances of seriousness and urgency, in accordance with section 188; or
(d)under an order made by a court; or
(e)otherwise under a provision of a law in force in the ACT.
The Magistrate noted that the Explanatory Statement had this to say about s 184:
Section 184 outlines the circumstances where a police officer may search a person, his or her clothing, and property in the person’s immediate control or a place and seize findings which the police officer believes on reasonable ground (sic) are connected with an offence. They are:
· where the persons (sic) consent has been obtained
· where the person has been arrested
· pursuant to a search warrant issued under section 187
· where the search is in an emergency as outlined in section 188
· pursuant to a court order under other ACT law, (for example in accordance with a warrant issued under the Crimes Act 1900 (NSW) or Customs Act 1901).
(Emphasis as per original)
The Magistrate considered that, in the last dot point in the above extract from the Explanatory Statement, the author of the Statement has merged paragraphs (e) and (f) of s 184 (1) and paragraphs (d) and (e) of s 184 (2), so that the reference to “a warrant issued under the Crimes Act” in the Explanatory Statement does not readily indicate that the words “under an order made by a court” includes a warrant issued under the Crimes Act 1900, because an entry and search of premises, and seizure of items, pursuant to a warrant issued under the Crimes Act 1900 would be action “otherwise under a provision of a law in force in the ACT”: s 184 (1) (f); s 184 (2) (e). As such, the Magistrate found the contents of the Explanatory Statement “unhelpful”.
The Magistrate concluded:
The generic reference to an order of the court, specifically given the use of the almost identical expression in section 184(e) (sic) where it appears in a context which distinguishes it from “otherwise under a provision of a law in force in the ACT”, suggests that it may be intended as a broad catch-all intended to include orders which might be able to be made in other jurisdictions, particularly, for example, the Commonwealth, although it is still not apparent what powers relevantly exist for a court to make an order in the circumstances envisaged. In the end result, I think it is likely that the intention behind the reference to “an order of a court” was to provide some broad catch-all to cover the possibility that some avenue might exist for an officer to obtain some court order and if such an avenue did exist, then taking that course of action had to be considered by the officer in the context of the exercise of the emergency search power under section 188. In any event, the difficulty with determining what might have been intended to be caught by the draftsman’s choice of the words “an order of a court” is not a persuasive reason for giving those words a meaning which they do not otherwise carry. Indeed, there is a persuasive reason for rejecting any argument that “an order of the court” should be read to include a section 205 telephone warrant. To give the expression such a meaning would be to effectively restrict the application of the emergency search power provision in the Drugs of Dependence Act to circumstances where an officer believed that a section 205 Crimes Act telephone warrant could not be obtained. The test for obtaining a telephone warrant under section 205 on the one hand, and for the exercise of the emergency search powers under section 188 on the other, are not expressed in identical terms although they are broadly speaking directed towards the same type of criteria, that is urgency and frustration of purpose. Having said that, the test set out in section 205 is on its face easier to satisfy requiring only that the case be urgent or that the delay involved with an in person application would frustrate execution of a warrant. The result therefore, if order of a court included a section 205 warrant, would be largely to frustrate the operation of the section 188 power or at least to severely limit its application effectively in the circumstances where an investigating officer believed that it was necessary to act under the section because of the possible delay in the issue of a section 205 telephone warrant. There is nothing in the legislative scheme indicating any intent that the emergency search power in section 188 should be so limited.
In the end result, I can see no reason to give the expression “an order of a court” anything other than its ordinary meaning and giving the expression its ordinary meaning does not encompass a warrant issued under the Crimes Act by telephone or otherwise. It follows that the defence argument that the belief in subsection (b) – that is subsection (b) of section 188(1) of the Drugs of Dependence Act cannot have been held because Detective Senior Constable Billings sought a telephone warrant under the Crimes Act must be rejected.
The Magistrate therefore ruled that the search conducted by the police was lawful, and he admitted the evidence of the search and the consequent finding of the heroin. The appellant was convicted of the offence.
Consideration
Whether the s 205 Crimes Act 1900 (ACT) warrant was valid
I am left in no doubt that the provisions of s 205 of the Crimes Act 1900 were not complied with in this case. The brief notes made by the issuing Magistrate of the particulars of the warrant sought by the respondent did not constitute “the same form of warrant that would be issued under section 194”, as was required by s 205 (4). The purported warrant completed by the respondent did not comply with s 205 (6) because it did not substantially correspond with a form of warrant completed by the Magistrate; indeed, it could not, as the notes made by the issuing Magistrate did not constitute a form of warrant. The purported warrant completed by the respondent was not validly issued and could not authorise the search of the appellant’s premises.
The basic idea behind s 205 is that counterpart documents will be produced; the Magistrate will complete a form of a warrant and communicate that to the applicant, who will then complete a counterpart form of warrant. The two documents must be in substantially the same terms. That simply did not occur here. It is necessary, therefore, to consider whether the search of the appellant’s premises was authorised by s 188 of the DODA.
Whether the search was authorised by s 188 of the Drugs of Dependence Act 1989 (ACT)
In my opinion, the Magistrate was in error in determining that the words “order of a court” in s 188 (1) (b) were not intended to include a warrant issued under s 194 and by virtue of s205 of the Crimes Act 1900. I assume, for present purposes, that the power to grant a search warrant given by ss 194 and 205 is given to, inter alia, Magistrates as designated persons, as opposed to being given to the Court. I therefore accept that the words “order of a court” are infelicitous if they are intended to include the issuing of a search warrant by a Magistrate acting in their capacity as a designated person. The Magistrate adopted what he considered to be the ordinary meaning of the words “order of a court” in holding that they were not intended to include the issuing of a search warrant, which in many cases may be a legitimate approach. I do observe, however, that search warrants under the Crimes Act 1900 can only be issued by an “issuing officer”, which is defined in s 185 as meaning a judge, a magistrate or certain court officials. Whilst, as a matter of legal or constitutional analysis, such warrants may not be considered to be court orders in the sense of orders made by a court in the exercise of its jurisdiction, it would not be straining the ordinary meaning of the words to describe them as orders of the court.
More importantly, a purposive approach to the interpretation of s 188 of the DODA leads to the conclusion that the words “order of a court” were intended to include search warrants under ss 194 and 205 of the Crimes Act1900. The provisions of the Explanatory Statement concerning s 188, quoted at [12] above, make it very clear that the power to enter and search premises without a warrant is only to be utilised in genuine emergencies, when it is not possible to obtain a warrant without risking the loss, concealment or destruction of evidence. To interpret the words “order of a court” so as to exclude emergency telephone warrants under s 194 and by virtue of s 205 of the Crimes Act 1900 would be to expand the circumstances in which entry, search and seizure, without a warrant, could be authorised by s 188, rather than restrict the power to genuine emergencies where not even a telephone warrant may be obtained within an appropriate time frame. In interpreting s 188 of the DODA, an interpretation that best achieves the purposes of the provision is to be preferred to any other interpretation: s 139 Legislation Act 2001 (ACT).
I must also respectfully disagree with the proposition expressed by the Magistrate that the result of interpreting the words “order of a court” to include a warrant issued by virtue of s 205 of the Crimes Act1900 “would be largely to frustrate the operation of the section 188 power” because of possible delay in the issue of a s 205 telephone warrant. If a police officer believes on reasonable grounds that circumstances of such seriousness and urgency exist that it would be impractical to obtain a telephone warrant issued by virtue of s 205 of the Crimes Act 1900, then so long as the requirements of s 188 are met the officer may exercise the power granted by that section.
If search warrants issued under legislation other than the DODA are excluded from the ambit of the words “order of a court” in s 188, it is difficult to conceive what the words are intended to encompass. It is clear that such an order would have to have certain minimum characteristics; it would need to be an order:
(a)authorising a police officer;
(b)to search a person or premises; and
(c)to seize property.
It is difficult to conceive of any such order as anything other than a search warrant.
The evidence in the present case established that the respondent did not believe that the circumstances were of such seriousness and urgency as to acquire the immediate exercise of the power under s 188 without the authority of a warrant under s 205, because the respondent applied for, and believed he obtained, a warrant under s 205. The provisions of s 188 of the DODA did not authorise the police search of the appellant’s premises.
It follows that the search of the appellant’s premises, and seizure of the heroin, was unlawful. This, however, is not the end of the matter.
Whether the evidence is admissible pursuant to s 138 of the Evidence Act 2011 (ACT)
The reception of the evidence of the search was therefore to be properly considered in the light of s 138 of the Evidence Act 2011 (ACT), which provides that evidence which is obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting it. The present case is one where the desirability of admitting the evidence clearly outweighs the undesirability of admitting it. The probative value of the evidence is high, and it is important evidence in the charge against the appellant. Most importantly, this was not a case where police acted with high-handed disregard of the appellant’s rights.
The respondent contacted a Magistrate and, so far as he was aware, was granted lawful authority by the Magistrate to search the premises and to seize any evidentiary material. The respondent did everything he reasonably could to ensure that the search was lawful, and to protect the rights of the appellant. Although the search was unlawful, evidence of the search and seizure of the heroin should be admitted through the proper exercise of the test in s 138 of the Evidence Act 2011.
The appeal will be dismissed.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 18 August 2015 |