Jabal v Robinson
[2015] ACTSC 125
•25 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jabal v Robinson |
Citation: | [2015] ACTSC 125 |
Hearing Date: | 29 April 2015 |
DecisionDate: | 25 May 2015 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – possession of prohibited weapons – convicted and fined in the Magistrates Court. APPEAL – Appeals From and Control Over Magistrates – whether the seizure of weapons during the execution of a search warrant pursuant to s 187 of the Drugs of Dependence Act 1989 (ACT) was lawful – whether the Magistrate erred in finding that there were reasonable grounds for the belief that the weapons were connected to the offence specified on the warrant – appeal dismissed. |
Legislation Cited: | Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) |
Cases Cited: | Hart v Commissioner, Australian Federal Police [2002] FCAFC 392 R v Stankovich (2004) 149 A Crim R 88 |
Parties: | Youssef Jabal (Appellant) Mark Robinson (Respondent) |
Representation: | Counsel Mr S Whybrow (Appellant) Ms S Jowitt (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 94 of 2014 |
Decision under appeal: | Court: Magistrates Court Before: Magistrate Doogan Date of Decision: 23 September 2014 Case Title: Robinson v Jabal Court File Number(s): CC13/10837; CC13/10838; CC13/10840 |
Burns J:
Background
On 23 September 2014, the appellant was convicted of three charges of possession of a prohibited weapon, namely two canisters of OC spray, a flick knife and an extendable baton contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). These items were located at the appellant’s home on 5 September 2013 during a search conducted by police under the authority of a search warrant issued under the provisions of the Drugs of Dependence Act1989 (ACT) (the Act). For convenience, I will refer to these items as “the weapons”. The appellant now appeals from those convictions on the following grounds:
(a) The finding of guilt was contrary to the evidence and otherwise unsafe and unsatisfactory.
(b) The Magistrate erred in admitting evidence from the search.
Whilst the first of these grounds was not formally abandoned, no submissions in support of it were made by counsel for the appellant. In written submissions provided on the appeal, counsel for the appellant said “The gravamen of the appellant’s appeal is that the Learned Magistrate erred in finding that the items were lawfully seized pursuant to [the] search warrant”. For the reasons that follow, I am satisfied that this appeal should be dismissed.
The search warrant
On 21 August 2013 a police officer obtained a warrant pursuant to section 187 (3) of the Act from a Deputy Registrar of the Supreme Court (the warrant). Relevantly for present purposes, s 187 of the Act provides:
(3)If any information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable to –
(a)enter any place named or described in the warrant; and
(b)search the place for things of that kind; and
(c)[not applicable]; and
(d)to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.
……
(7)If, in the course of searching in accordance with the warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds anything that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.
The term “offence” for the purposes of s 187 of the Act is defined in s 174 (1) as meaning “an offence against this Act or the Criminal Code, chapter 6 (Serious drug offences)”, referring to the Criminal Code 2002 (ACT). The provisions of s 174 (2) (a) to (d) of the Act are also relevant:
(2)For this part, a thing is connected with a particular offence if –
(a)the offence has been committed in relation to it; or
(b)it will afford evidence of the commission of the offence; or
(c)it was used, or it is intended to be used, for the purpose of committing the offence; or
(d)after the commission of the offence, it was used for the purpose of taking steps to avoid the detection of the offence or the apprehension of the offender;
The “particular offence” for the purposes of s 187 (3) of the Act specified on the warrant was “Traffic in a controlled drug other than cannabis, contrary to section 603 (7) of the ACT Criminal Code 2002”. The “things of a particular kind” for which the warrant authorised police to search for were “A controlled drug namely cocaine, utensils used in the administration, packaging, transport or sale of cocaine, including but not limited to spoons, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies, accounts or documents; Electronic devices including mobile telephones, SIM cards and data storage mediums”.
It is conceded by the respondent that the weapons located in the course of the search were not items of the kind for which the warrant authorised police to search and to seize. As I understand it, the respondent relied upon the provisions of s 187 (7) of the Act as providing authority to the police to seize these items. In other words, the prosecution asserted that the police who located the weapons in the execution of the search warrant had a belief on reasonable grounds that they were connected with the offence specified in the warrant, or connected with another offence. By reason of the narrow definition of “offence” in s 174 (1) of the Act, a police officer’s belief that the weapons were connected with an offence under the Prohibited Weapons Act1996, which is what the appellant was ultimately charged with, would not entitle a police officer in the execution of the warrant to seize that property.
The identity of the person, presumably a police officer, who laid the information on oath before the Deputy Registrar is not stated on the face of the warrant, nor is that name revealed from the evidence in the Magistrates Court.
The execution of the warrant
After obtaining the search warrant, police attended the premises specified in the warrant (the appellant’s home) on 5 September 2013. The appellant was not present at the time of the commencement of the search, but arrived during its course. The search located no items listed in the warrant. The only items seized were the weapons and a replica pistol, all of which were located in the main bedroom. A recording was made of the process of the search of the premises. The recording of the search was played in the Magistrates Court and revealed that, after the weapons and the replica pistol had been located, an unknown police officer questioned whether these items could be seized under the warrant. The warrant holder, Detective Robinson, attempted to make enquiries to confirm that the items could be seized pursuant to the warrant by telephoning the duty Magistrate and the office of the DPP. It was, of course, inappropriate for Detective Robinson to contact the duty Magistrate with a view to obtaining advice about his powers under the warrant, and it appears that the duty Magistrate referred him to the office of the Director of Public Prosecutions (DPP). Detective Robinson gave evidence that he telephoned the office of the DPP and spoke to an unnamed “senior officer” who told him that they believed he was entitled to seize the items pursuant to the warrant, but they would get back to him, although it appears that they never did. The precise terms of the conversation between Detective Senior Constable Robinson and the officer of the DPP are not in evidence. The police seized the weapons and the replica pistol, and subsequently charged the appellant with three offences of possessing a prohibited weapon. The appellant was also charged with an offence relating to possession of the replica pistol, but this charge was dismissed by the Magistrate on the basis that an incorrect charge had been proffered.
The proceedings in the Magistrates Court
The proceedings before the Magistrate focused on two issues. The first was whether the weapons had been lawfully seized pursuant to the warrant. The second was whether the evidence allowed the Magistrate to find beyond reasonable doubt that the weapons were in the possession of the appellant.
Counsel for the appellant asked the Magistrate to conduct a voir dire to determine whether the prohibited weapons had been lawfully seized. The prosecution supported the need for evidence to be taken on the voir dire. It is not immediately clear from the transcript of the proceedings in the Magistrates Court what evidence counsel for the appellant was objecting to the Magistrate receiving. On one view of the matter, the seizure of the weapons was irrelevant. There was no challenge to the lawfulness of the search conducted by the police pursuant to the warrant, so that there was no suggestion that the finding of the weapons by the police in the conduct of the search was otherwise than lawful. It was also not disputed that the items located by the police, and which formed the basis of the charges under the Prohibited Weapons Act1996, were in fact prohibited weapons. As such, the real issue for determination by the Magistrate was whether the prosecution had proved beyond reasonable doubt that the appellant was in possession of the weapons. I will nevertheless address the arguments advanced by the appellant in support of this appeal.
The main witness for the prosecution on the voir dire was Detective Robinson. He had been a member of the Australian Federal police since 2006 and had extensive experience in criminal investigation, including the investigation of drug offences. He had been involved in many searches of premises pursuant to warrants issued under the Drugs of Dependence Act1989. He gave evidence that he considered that the items which were located in the course of the search of the appellant’s premises, being the canisters of OC spray, the extendable baton and the flick knife, were connected with the offence that he was investigating, being the trafficking of cocaine. He said that police intelligence, both nationally and internationally, suggested that persons involved in the cocaine trade routinely arm themselves to defend their product.
Detective Robinson was extensively cross-examined by counsel for the appellant. Much of the cross examination focused upon redactions made by Detective Robinson to his notes of the search process, with an apparent view to suggesting that he either knew he was not entitled to seize the weapons pursuant to the warrant, or that he was aware that he may not have been entitled to seize those items under the warrant. I will return to this proposition shortly. Detective Robinson agreed that the search had not located any evidence of drugs or drug paraphernalia at the appellant’s residence. He also agreed that the weapons were not items mentioned in the warrant. He nevertheless maintained that he had formed a belief that they were connected with the offence specified in the warrant based upon “my experience… working in the drugs and organised crime team and doing numerous other warrants in relation to high-value drug items such as cocaine”. Detective Robinson agreed that it would have been possible for him to make an application to the duty Magistrate by telephone for an emergency search warrant under the provisions of the Crimes Act1900 (ACT), but that he had not done so because he was confident that he had the power to seize the items under the warrant. He testified that the items were all “personal protection weapons” beyond those “normally seen”, and his experience of previous cocaine seizures and the execution of warrants led him to believe that there was a connection between the items located and the specified offence of trafficking in cocaine “because it is such a high-value drug, people defend themselves and have weapons to defend themselves”.
The Magistrate noted that there had been no challenge to the validity of the warrant and that the police were entitled pursuant to that warrant to seize things which a police officer believed on reasonable grounds to be connected with the offence specified in the warrant, even if they were not things specified in the warrant itself. After referring to the evidence of Detective Robinson, the Magistrate observed that, in her view, it was common knowledge that drug trafficking is associated with the possession of weapons. The Magistrate observed that, in order to obtain the warrant, information had to be laid before an issuing officer which satisfied the issuing officer that there were reasonable grounds for suspecting that things relating to a specified offence were to be found at the premises proposed to be searched. She considered that the items seized by the police were weapons which could have been used in the guarding of drugs, which provided a sufficient connection to the offence specified in the warrant so as to make the seizure of the weapons lawful under the warrant.
The appellant’s submissions
The appellant submitted that the Magistrate had not applied the proper test in deciding whether the seizure of the weapons was lawful under the warrant. He submitted that, although the Magistrate was satisfied that Detective Senior Constable Robinson held a belief that the weapons were connected with the specified offence, she did not address the question of whether that belief was based on reasonable grounds. The appellant submitted that the Magistrate was not entitled to be satisfied that there were reasonable grounds for Detective Robinson to suspect that the weapons were connected with the specified offence based upon the issuing officer being satisfied that there were reasonable grounds for suspecting that items connected with the specified offence would be found on the premises the subject of the search warrant. The appellant submitted that search warrants may be issued in any number of circumstances, including circumstances where warrants are issued based on information that turns out to be unreliable or even malicious. He further submitted that the fact that no drugs or drug paraphernalia were found in the execution of the search warrant suggested that the information based upon which police obtained a warrant was unreliable.
Consideration
The appellant asserted that the Magistrate erred in holding the weapons to have been lawfully seized by authority of the search warrant. The decision of the Magistrate was based on Detective Robinson’s evidence on two issues: first, that persons involved in trafficking cocaine frequently arm themselves to protect themselves and their product; and secondly, that Detective Robinson, being aware of this fact, believed that the weapons were connected with the offence specified on the warrant, being an offence of trafficking in a controlled drug other than cannabis. In the present proceedings, no challenge is made to the veracity of the evidence of Detective Robinson on the first issue. However the appellant did challenge Detective Robinson’s evidence on the second, on the basis that the telephone calls made during the execution of the warrant to the duty Magistrate and the DPP seeking advice as to the legality of the seizure were indicative of the fact that Detective Robinson did not believe that the weapons were connected to the offence specified on the warrant, but some other offence outside the ambit of the warrant. The appellant challenges the Magistrate’s decision that the seizure of the weapons was lawful on the ground that the Magistrate did not address whether Detective Robinson had reasonable grounds for forming that belief. I am satisfied that the Magistrate did consider the reasonableness of Detective Robinson’s belief. In deciding that the seizure was lawful, the Magistrate said: “I certainly am of the view that its common knowledge that drug trafficking is associated with the possession of weapons”, which is a clear indication that her Honour was satisfied that the ground given by Detective Robinson for forming his belief was reasonable.
During the hearing of the appeal, the appellant appeared to embrace the argument that the failure of the police to locate any drugs, drug paraphernalia or other indicia of drug trafficking in the course of their search meant that there were no reasonable grounds for believing that the offence specified in the warrant had been committed, and therefore there could be no reasonable basis for Detective Robinson to form a belief that the weapons were connected with that offence. In my opinion, this cannot be correct, as s 187 (7) does not require an officer conducting a search pursuant to a warrant under that section to form a view whether, before items may be seized, the evidence to hand is such as to justify a reasonable belief that the specified offence had been committed.
It will frequently be the case that the exigencies of criminal investigations will require a search warrant to be executed by persons who did not swear the information upon which the warrant was issued, and who, for various reasons, may have an imperfect knowledge of the whole of the investigation. Not infrequently, a search of premises pursuant to a warrant is only part of an ongoing investigation. To suggest that a police officer conducting a search must, before seizing an item which on its face may be connected with the specified offence, consider the current state of the evidence obtained and form a belief that there are, at that point, reasonable grounds for believing that the specified offence has been committed would undermine the practical efficacy of search warrants and would place an intolerable burden on investigators. As the Full Federal Court (French, Sackville and Nicholson JJ) said in Hart v Commissioner, Australian Federal Police [2002] FCAFC 392 at [68]:
... effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of the criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred.
Where an issuing officer issues a warrant under s 187 (3), it means that he or she is satisfied that there are reasonable grounds for suspecting that specified things connected with a specified officer will be found at a particular place: R v Stankovich (2004) 149 A Crim R 88. To suggest, as the appellant did, that s 187 (7) requires the officer conducting a search to form his or her own view as to whether there are reasonable grounds to believe that the specified offence has been committed before seizing an item not specified on the warrant on the belief that it is connected with the specified offence is inconsistent with the requirements of satisfaction placed on the issuing officer. In my opinion, an officer executing a warrant is not required by the provisions of s 187 (7) to go behind the warrant to form his or her own opinion as to whether there is a reasonable belief that the specified offence has been committed. What s 187 (7) requires is that the officer has a reasonable belief that the item to be seized is connected to the offence specified in the warrant, or any other offences as defined in s 174 (1).
Conclusion
On the evidence before her, the Magistrate was entitled to find that there were reasonable grounds for Detective Robinson to believe that the weapons were connected to the specified offence of trafficking in a controlled drug other than cannabis when they were seized, and to reject the submission that their seizure was unlawful. The appeal will be dismissed.
For completeness, although the point was not argued by the appellant, I make it clear that I am not satisfied that the verdicts, or any of them, were unsafe or unsatisfactory.
The appeal must be dismissed. The conviction and penalty imposed in the Magistrates Court are confirmed.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 25 May 2015 |
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