Johnston (a Pseudonym) v The King

Case [2023] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2022 0096
PETER JOHNSTON (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant, so as not to identify a possible victim of sex offending.

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JUDGES: BEACH, T FORREST JJA and J FORREST AJA
WHERE HELD: Melbourne
DATE OF HEARING: 12 December 2022
DATE OF JUDGMENT: 10 March 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 49
JUDGMENT APPEALED FROM: [2022] VCC 1083 (Judge Chambers)

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CRIMINAL LAW – Appeal – Interlocutory decision – Application to exclude evidence pursuant to s 138 of the Evidence Act 2008 – Where safe custody warrant issued – Where police attended property in execution of safe custody warrant – Where police conducted search in excess of power and authority granted under safe custody warrant – Where search warrant subsequently issued and items seized pursuant to the warrant – Whether items seized in subsequent search are admissible at trial – Evidence obtained during subsequent search held to be inadmissible – Leave to appeal granted – Appeal allowed.

Evidence Act 2008 s 138; Crimes Act 1958 s 465; Children, Youth and Families Act 2005 s 598; Children, Youth and Families (Children’s Court Family Division) Rules 2017 r 8.

House v The King (1936) 55 CLR 499 referred to; George v Rockett (1990) 170 CLR 104, McElroy v The Queen (2018) 55 VR 450, R v Riley [2020] NSWCCA 283 discussed; Kadirv The Queen (2020) 267 CLR 109 considered.

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Counsel
Applicant: Mr P Chadwick KC
Respondent: Mr J Dickie with Mr M White

Solicitors
Applicant: Anthony Isaacs Criminal Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA
J FORREST AJA:

Introduction

  1. On Christmas Day 2020, Victoria Police was notified that CM,[2] a 17-year-old female in the care of the State of Victoria, had absconded and that there was a serious concern for her welfare.

    [2]A pseudonym. A different pseudonym is used by the judge: see DPP v [Johnston (a pseudonym)] [2022] VSC 1083 (‘Reasons’).

  2. A safe custody warrant[3] was issued that morning by the Children’s Court and Victoria Police responded admirably and promptly in efforts to locate the teenager. Six members (including two sergeants) went to a house in Greensborough where it was believed that she may be located.

    [3]A colloquial and apt description of a warrant issued under s 598(1) of the Children, Youth and Families Act 2005 (Vic).

  3. In conformity with the terms of the warrant, the officers, at about 11:40 am, entered and searched the house where it was suspected that CM was present. The house was owned by the applicant’s father. The applicant, with his father’s permission, occupied the house.

  4. Within a short time of the officers entering the house it was clear that she was not at the house. For reasons that remain unclear, and notwithstanding the strict requirements of the warrant which only permitted a search…

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Johnston (a Pseudonym) v The King [2023] VSCA 49
Case
[2023] VSCA 49
Decision Date

CaseChat Overview and Summary

In the case of Johnston (a Pseudonym) v The King, the applicant, who had been charged with criminal offences, sought to exclude evidence obtained by the police during a search of his property. The search was conducted in excess of the authority granted under a safe custody warrant. The legal issues before the court were whether the evidence obtained during the subsequent search, which was conducted pursuant to a search warrant, was admissible at trial and whether the evidence obtained during the initial search, which exceeded the powers granted by the safe custody warrant, was improperly obtained.

The court held that the evidence obtained during the subsequent search was inadmissible because it was obtained in consequence of the improper and/or illegal Christmas Day search. The court found that the evidence obtained during the Christmas Day search was improperly obtained because it exceeded the powers granted by the safe custody warrant. The court also found that the evidence obtained during the subsequent search was inadmissible because it was obtained in consequence of the improperly obtained evidence from the Christmas Day search.

The court's reasoning was based on the provisions of section 138 of the Evidence Act 2008, which provides a discretion to exclude improperly or illegally obtained evidence. The court found that the evidence obtained during the Christmas Day search was improperly obtained and that the evidence obtained during the subsequent search was in consequence of the improperly obtained evidence. The court held that the evidence obtained during the subsequent search was inadmissible because it was obtained in consequence of the improperly obtained evidence from the Christmas Day search.

The final orders of the court were that the evidence obtained during the subsequent search was inadmissible at trial and that leave to appeal was granted. The appeal was allowed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 138 of the Act relevantly provides as follows: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.… (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 At the hearing of the application on 27 June 2022, counsel for the applicant and the prosecution made submissions to the judge based on the evidence given or tendered at the committal. The applicant applied for all the evidence seized in the course of the April search to be excluded at his trial. He submitted that the evidence obtained during the April search was obtained in consequence of the improper and/or illegal Christmas Day search.[13] That was conceded by the prosecution.[14][13]Reasons, [2]–[3].[14]Reasons, [3]–[4]. There are two matters that we should comment upon at this point. First, there was no indictment filed in the County Court and the hearing took place on the basis that an indictment would be filed consistent with the charges upon which the applicant had been committed by the Magistrate. Whilst neither the applicant nor the prosecution took any issue with this process, in our view it was irregular. As was pointed out by the bench in the course of oral argument, endeavouring to assess the nature of the offence (s 138(3)(c) of the Act) and the importance of the evidence (s 138(3)(d) of the Act) in conducting the s 138 exercise depends upon accurately identifying the charge(s) which the accused will ultimately face and contest — usually as demonstrated by the indictment and the plea entered by the accused. Whilst we accept that the charges upon which the applicant was committed may provide a reasonable guide as to what the indictment will ultimately contain, it is less than satisfactory to proceed on this basis on an application such as this; notwithstanding what was described as the urgency in the application. Second, as previously mentioned, the only evidence at the hearing before the judge was the committal evidence of some of the police officers who participated in the Christmas Day search. In other words, there was no voir dire, and the judge did not have an opportunity to assess the credibility of the three police witnesses in relation to the conduct of the search. This course was agreed to by the parties and clearly was an efficient way to deal with the police evidence. However, there was a real question over the level of impropriety on the part of the police, and, in our view, it would have been preferable for the officers to have given evidence before the judge.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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