Johnston (a Pseudonym) v The King

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

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’).
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).
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.
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 for CM and her conveyance into ‘safe custody’, the officers then went from room to room conducting an intensive and invasive search of the house for over one hour (the ‘Christmas Day search’).
Once it was clear that CM was not on the premises, the officers had no right to be on the premises, and from that time onwards were trespassers. The continued search was unlawful.
In the course of the unlawful search, several items (and particularly a video depicting a male and a female engaged in sexual intercourse) were identified by the police officers, which led, in turn, to a properly issued search warrant being executed on 21 April 2021 (the ‘April search’).
On 9 March 2022, the applicant was committed for trial in the County Court on four counts of rape and a variety of drug offences including trafficking cannabis. The items seized during the April search form a substantial part of the prosecution case against him.
In an application to a County Court judge prior to his trial, the applicant sought to exclude from the evidence to be adduced at his trial all the items seized by police in the April search pursuant to s 138 of the Evidence Act 2008 (the ‘Act’). It was argued that these items were inadmissible given the level of impropriety associated with the Christmas Day search, which was the sole genesis of the second warrant. The County Court judge refused that application with ‘some hesitation’.[4] The applicant now seeks leave to appeal that decision.
[4]Reasons, [89].
We are unable to agree with the judge. We have concluded that her Honour was in error in permitting the evidence to be admitted and that, on our own assessment of the requirements of s 138, the evidence obtained during the April search should be excluded.
For the reasons that follow, leave to appeal will be granted and the appeal will be allowed.

Background

CM lived in a residential care facility in Baxter managed by the Department of Health and Human Services and was probably the subject of a long-term care order under s 290 of the Children, Youth and Families Act 2005 (the ‘CYFA’).
Early on Christmas Day 2020, CM (who was not at the facility) informed her residential care worker that she planned to take a fatal dose of the drug, GHB (gamma‑hydroxybutyrate). Victoria Police were contacted and their investigations revealed that CM was probably in the Greensborough area. Later that morning (at about 11:15 am), the care worker advised police that she had obtained information that CM had been drugged and was being held against her will by a 45-year-old man at a specified location in Greensborough.

The safe custody warrant

A safe custody warrant in respect of CM was issued on 25 December 2020 (the ‘safe custody warrant’). It is not known who applied for the warrant. Neither the prosecution nor the accused could produce the original or a copy of the warrant. However, the judge (who is a former president of the Children’s Court) considered it ‘most likely’ that the warrant was issued pursuant to s 598(1) of the CYFA. This was accepted by both parties.
As a result of the judge’s analysis, it was also accepted that the warrant was in the form prescribed by r 8 of the Children, Youth and Families (Children’s Court Family Division) Rules 2017 (‘CYFA Rules’) entitled ‘Form 39 — Children’s Court Search Warrant (Emergency Care)’. This authorises either a named officer or ‘all members of the police force’ to ‘break, enter and search any place where the child named or described in this warrant is suspected to be and place in emergency care the child named or described in this warrant’.[5]
[5]CYFA Rules, rr 8, 10; ‘Form 39 – Children’s Court Search Warrant (Emergency Care)’.
If the warrant is issued under s 598(1)(a) of the CYFA, it authorises the executing officer(s) to ‘bring the child before the Court as soon as practicable and, in any event, within one working day after the child was placed in emergency care’.
If the warrant is issued under s 598(1)(b) of the CYFA, it requires the executing officer(s) to ‘take the child to the place specified in this warrant or, if no place is specified, to a place determined by the Secretary of the Department of Health and Human Services or, in the absence of a determination, to a place referred to in section 173 of the [CYFA]’.
The prescribed warrant form then has provision for details of the applicant, the agency and the place and date of issue.
It is not clear whether the safe custody warrant in this case was issued under ss 598(1)(a) or (1)(b). It does not appear that any of the police officers who gave evidence at the committal (Sergeant Cumming, Detective Sergeant Flannery or First Constable Musarra) sighted the warrant before their entry into, or during their search of, the house.
We now make three observations about this warrant.
First, by its terms, it is not confined in terms of location or premises. It is ambulatory in its scope. It permits a specific member (or all members) of the police force to search ‘any place’ if the child is suspected to be there.
Second, it does not authorise any action by police other than ensuring the child is, in practical terms, removed and placed in safe custody. The warrant is effective until the child is recovered and, in this way, remains ‘extant’ until that time. However, and importantly, it does not authorise any search of premises other than to search for and remove the child.
Third, it is extraordinary that in a case where the validity of the search has been in issue for a considerable time, the original or a copy of the warrant (or secondary evidence of its contents) cannot be produced by Victoria Police or the prosecution. It was left to the judge to endeavour to ascertain its terms and scope.

The Christmas Day search

Having identified the house where it was suspected that CM may be present, at 11:38 am, five members of Victoria police lawfully entered the premises: Sergeant Cumming (‘Cumming’), First Constables Musarra (‘Musarra’), Yon, and Van Maarseveen Jones and Constable Brick. Detective Sergeant Flannery (‘Flannery’) arrived at the house shortly afterwards.
The house is in Greensborough and is owned by the applicant’s father.
In evidence at the committal,[6] Cumming described himself as the supervising officer at the scene. He entered the house and then made a radio report one minute and 40 seconds later advising that the house was clear and unoccupied. At the committal, his initial testimony was that it would have taken no more than five minutes for him to be satisfied that the house was empty. Then, having watched the footage from Musarra’s body worn camera,[7] Cumming agreed that at 11:40 am it was apparent that ‘the missing person was not there’.
[6]The factual evidence relied upon by the judge as to the Christmas Day search came from the committal depositions (particularly the statements of three of the officers and their cross-examination).
[7]See [29]–[30] below.
Musarra also gave evidence about the search of the house. At the committal, he said that he became aware ‘very quickly’ that the house was empty.
According to Musarra — and confirmed by Cumming — approximately 30 minutes after the search commenced, Cumming informed Musarra that CM was ‘long gone and on a train’ and that police had ‘just missed her.’
Flannery (who had arrived after the other two) said that it took 20 to 30 minutes for him to conclude that CM was not at the house.
For the whole of the search, Musarra wore a body camera. The detail of his and other officers’ actions at and outside the house is shown in the two videos taken sequentially by the camera. The camera commences operating shortly prior to the time Musarra enters the house. It is fitted with a timer.
In the first video (the ‘house search video’), Musarra is initially depicted entering the property along with four other police officers. After announcing their presence, Musarra and the other officers commence the search for CM.
At 2:25 minutes, Musarra observes a collection of drug paraphernalia in the garage and alerts other officers as to its presence. The search by the police officers continues inside and outside the house.
At 4:30 minutes into the search, Musarra enters a bedroom where he locates an iPad on a bed. He unlocks the iPad and begins to scroll through messages and photos on the device. He then attempts to turn on a television and continues his search of other rooms of the house.
At 8:58 minutes into the search, he enters a room that appears to be used as a music room where he and another officer access a desktop computer.
At 9:45 minutes into the search, Musarra inspects a shelf in the living room and then at 10:03 minutes, he enters a second bedroom. There, he picks up a backpack and inspects its contents. He looks at a photograph and then picks up a prescription that is made out to a female name (not CM). Musarra asks another officer ‘do you want to run that name, see if it comes up [with] anything?’ Musarra then returns to rummaging through the backpack, taking out female clothes, a birthday card (which he reads) and a traffic fine.
Musarra proceeds to inspect a bedside table, including by opening one of its drawers. He then examines a wardrobe and is joined by another police officer. He hands the traffic fine to another officer saying ‘I got a rego … [indistinct]’. Musarra then re-enters the bedroom and continues his search, looking through a grey box and then inspecting the bedside table. In one of its drawers, he finds a notebook which he removes and scrutinises. Musarra then walks over to the bed, lifts up the mattress and looks under it.
Musarra resumes his inspection of the grey box which contains a number of soft toys as well as a number of cases and boxes. He opens several of these and inspects a small camera. Musarra then comments ‘[indistinct] … that iPad, he’s got some girls masturbating on there, I don’t know if they’re underage or not, I want to take a look at it’. Musarra and the other officer again inspect the cupboard, removing a bag and some papers, before returning to the first bedroom. There, Musarra examines an iPad which he shows to a colleague.
At 33:24 minutes into the search, while Musarra is examining the iPad, two of the other officers in the room can be heard making the following observations: ‘[a]t the end of the day she’s not in imminent danger anymore’, ‘not being held against her will’ and ‘she’s on a train, and we’ve confirmed that with a ping’ and ‘I reckon we must have just missed her’. Musarra comments that the police ‘must have missed her by a mile’ and keeps scrolling through photos on the iPad. Musarra then attempts to unlock a smartphone but is unable to do so.
At 53:40 minutes into the search, Musarra inspects the bedroom wardrobe and finds a box which, after being opened, is found to contain several gold watches. He remarks ‘proceeds of crime?’ to the other officers. He continues to search the wardrobe and retrieves a wad of banknotes.
In his evidence at the committal, Musarra estimated that after approximately an hour into the search of the house, he re-entered the music room. This estimate is confirmed by the video timer: it is approximately one hour and two minutes into the search. Musarra then opens an Apple iMac computer and watches a video of a male having sex with a female who appears at times to be unconscious (the ‘iMac video’). This video runs for approximately 30 minutes and, on the prosecution case, depicts the applicant having intercourse with the female on multiple occasions without her consent. It is common ground on this appeal that the female so depicted is not CM; it is the applicant’s former partner AB.[8]
[8]A pseudonym. A different pseudonym is used by the judge in the Reasons.
Musarra then walks back into the bedroom which his two colleagues are continuing to search. He advises them that he has looked at a computer and has found ‘a video from the eighth of the month where [a person is] having sex with an unconscious female’.
Musarra again inspects the iPad. One of the other officers comments that that they should ‘wait for SOCA to come down, they can make a decision as to which way they want to go’.[9]
[9]SOCA is an abbreviation for Sexual Offences and Child Abuse. This is probably a reference to the SOCIT — the Sexual Offences and Child Abuse Investigation Team (the ‘SOCIT’).
The second video depicts the actions of police officers after the conclusion of the search of the house.
Musarra inspects a mailbox and then searches a campervan which is parked outside the property. When inside the van, he searches through suitcases, a stack of envelopes and attempts to access a laptop.
Then, as depicted in the second video, at 12:50 pm, the applicant’s parents arrive at the house and advise the officers that the applicant resides at the house. One of the parents asks an officer whether the applicant was ‘in trouble’. The officer replies that the police are searching at the property for ‘a person wanted under a warrant of apprehension’. He also advises the parents that that they have seized over three thousand dollars in cash but will leave it in the parents’ custody.
The parents subsequently enter the house and speak further with the officers. They sign for the cash which is given to them, and again ask whether the applicant was ‘in trouble’, to which a police officer replies ‘not at this point in time’.
At 1:27 pm, the three remaining police officers (Cumming, Flannery and Musarra) leave the house.
In his evidence at the committal, Musarra said that after viewing the iMac video he advised the two sergeants (Cumming and Flannery), who then contacted the SOCIT.[10] Musarra said that he then had a conversation outside the house with the sergeants, who informed him that the SOCIT was not coming down to the property and that Musarra should submit an ‘information report’.

The search warrant

[10]See footnote [9] above.

On 9 April 2021, a search warrant was issued by a Magistrate of the Heidelberg Magistrates’ Court pursuant to s 465 of the Crimes Act 1958 (the ‘April warrant’). Its legality is not in issue.
Under the heading ‘[r]easons for search or description of suspected offence’, the warrant states:
To afford evidence of the offence of Rape pursuant to section 38 of the Crimes Act 1958.
The applicant’s house was identified in the warrant and the subjects of the search were said to be:
•Any mobile phone devices reasonably believed to be used or possessed by [the applicant];
•Any computer or tablet device reasonably believed to be used or possessed by [the applicant];
•Any hard-drive or portable storage devices;
•Any CCTV devices.

The April search

On 21 April 2021, police executed the April warrant at the house. A large number of items were seized in the course of the search:
(1)a snap seal bag containing two pills;
(2)a plastic container containing what appeared to be cannabis;
(3)an Apple iPad;
(4)a blue Apple iPhone;
(5)a prescription;
(6)a grey Apple iPhone;
(7)a snap seal bag containing what appeared to be cannabis;
(8)a silver Apple iPhone;
(9)$355 cash;
(10)an Apple iPad;
(11)a glass jar containing what appeared to be cannabis;
(12)a snap seal bag containing white crystals;
(13)a grinder with what appeared to be cannabis;
(14)a snap seal bag containing white crystals;
(15)three digital scales and a packet of snap seal bags;
(16)five snap seal bags containing what appeared to be cannabis;
(17)a gold Apple iPhone;
(18)a snap seal bag containing what appeared to be cannabis;
(19)a set of digital scales;
(20)a portable hard drive;
(21)a ‘Eufy’ base station with cables;
(22)an Apple iMac computer;
(23)an Asus laptop with cables and mouse;
(24)a cigarette packet containing what appeared to be cannabis;
(25)a ‘Clarichem’ box containing five bottles containing liquid;
(26)a Samsung hard drive;
(27)a Visa debit card;
(28)a ME debit card;
(29)a ‘WD’ portable hard drive;
(30)an Apple computer and accessories;
(31)an Acer laptop; and
(32)an ‘MTEC’ USB thumb drive.

The iMac video and the evidence of AB

On 28 May 2021 and 4 June 2021, AB, the female depicted in the iMac video, was interviewed by Victoria Police officers. As we have said, she is the former partner of the applicant with whom she has two children. She stated that he had been abusive towards her and that they had separated. She then moved back into the family home for a period before it was sold. After its sale, she lived with the applicant for a time at the Greensborough house.
AB confirmed that she was the woman depicted in the iMac video with whom the applicant was shown as having sex. She said that she was not awake during the filming of the video and has no recollection of having intercourse with the applicant as depicted in the video. She had not consented to the acts of intercourse depicted in the video.

The charges on which the applicant was committed

On 9 March 2022, the applicant was committed for trial on the following charges:
(a)One charge of trafficking cannabis.
(b)One charge of possessing cannabis.
(c)Four charges of rape.
(d)Two charges of contravening a family violence intervention order intending to cause harm or fear.
(e)Five charges of incitement.
(f)Two charges of attempting to pervert the course of justice.

Evidence at the committal in relation to the Christmas Day search

We have already referred to parts of the evidence given at the committal.
In addition, Cumming (who oversaw the operation) gave evidence in relation to the Christmas Day search. He said that he was aware of the safe custody warrant before entering the house. He learnt of its existence on the day via his mobile device but was not provided with a copy of the warrant.
Cumming accepted that the safe custody warrant was only valid for the place where the relevant child is suspected to be and only authorised police to enter that property and take that child into safe custody. It did not provide authority to conduct a search when the named person was not at the relevant property.
As previously mentioned, Cumming’s estimates as to when he was satisfied that the house was empty varied between one minute 40 seconds and five minutes.[11] He said that after discussing the matter with Flannery it was agreed that the property would remain a crime scene as it was possible that CM was being held against her will.
[11]See [25] above.
Cumming confirmed that the police remained at the house for almost an hour while Musarra thoroughly searched the property without a warrant. He said that he was ‘not sure’ of the basis upon which that search was authorised to take place. He also accepted that once the police learned CM was on the train, they no longer suspected she was being held against her will.
Flannery, the other sergeant present, also accepted that the safe custody warrant was the only authority given to police to enter the house and that the sole task of the police was to enter the property and search for CM. He stated that at no point during the Christmas Day search did he regard the house as a crime scene, but that if he had, then the correct thing to do would be to stop the search and apply for a search warrant.
Musarra agreed that the purpose of the Christmas Day search was to effect the safe custody warrant but that he never saw a copy of the warrant.
He said that he believed he had authority to search the premises despite the property being empty and there being no sign of CM. He accepted that he continued his search despite being advised that CM was ‘long gone’ and that he did not consider applying for a s 465 warrant.[12]
[12]Musarra was here referring to s 465 of the Crimes Act under which the April warrant was later issued (see [48] below).
When asked about his search of the laptop, Musarra stated that he was looking for information on the laptop regarding CM. He accepted that the chance of finding such information was ‘pretty thin’ but said that he was satisfying himself that ‘there were no offences committed’.

Section 138 of the Act

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

(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note:The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

The hearing before the County Court judge

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.

The reasons of the County Court judge

The judge’s reasons were delivered on 11 July 2022 and are clear, detailed and thorough.
The judge commenced by noting the prosecution’s concession that the Christmas Day search was improper due to its breadth and the fact that it continued after the police learnt that CM had left the property.[15] Her Honour also noted that the prosecution bore the onus of demonstrating that ‘the desirability of admitting the evidence outweighs the undesirability of admitting [improperly obtained] evidence’.[16]
[15]Reasons, [3], [47].
[16]Reasons, [4].
The judge, correctly, observed that this impropriety did not automatically render the evidence inadmissible.[17]
[17]Reasons, [48].
Her Honour considered each of the criteria under s 138(3) of the Act[18] and then balanced the competing interests.[19] Of significance in the judge’s reasons was her identification of the probative value of the evidence which she regarded as ‘foundational’.[20]
[18]Reasons, [48]–[77].
[19]Reasons, [78]–[89].
[20]Reasons, [54].
In doing so, her Honour relied upon the ‘uniquely probative’ value of the video evidence to the prosecution case regarding the charges that the complainant was raped whilst asleep or unconscious.[21] Her Honour noted that if the video was ruled inadmissible, then those charges (the rape charges) could not proceed.[22] Similarly, the text messages obtained from the applicant’s phone were central to the prosecution case of drug trafficking.[23] Less important but of significance to the prosecution of the drug possession charge were the cannabis, methylamphetamine, drug paraphernalia and snap seal bags seized in the April search.[24]
[21]Reasons, [49]–[80].
[22]Reasons, [80].
[23]Reasons, [50]–[51], [81].
[24]Reasons, [50].
The judge noted that the offences were serious and related to ‘allegations of extremely serious criminal conduct’.[25] Her Honour emphasised the seriousness of charges of rape in an intimate relationship and that there was a high public interest in their prosecution.[26]
[25]Reasons, [56].
[26]Reasons, [83].
In relation to the considerations counting against the admission of the evidence, the impropriety of Musarra’s continued search of the house was the judge’s focus.
The judge described the terms of a safe custody warrant, noting that such a warrant is not specific to a place or residence and that it remains extant until the child is recovered. She correctly held that the police were clearly authorised to enter and search the premises for the child pursuant to the safe custody warrant.[27]
[27]Reasons, [44].
The judge, again correctly, observed that there was no violation of the applicant’s rights when the police entered the house, rather that the impropriety arose from the continuation of the search after CM’s absence was discovered.[28]
[28]Reasons, [44]–[46].
Her Honour set out the detail of the search, having watched the video, and then set out the evidence given at the committal by the three police officers (Cumming, Flannery and Musarra).
As part of this exercise, her Honour held that the authority given to the police should not be construed narrowly and that the safe custody warrant gave the officers authority to search electronic devices ‘where there are reasonable grounds for suspecting that such a search may elicit information regarding the child’s whereabouts’.[29]
[29]Reasons, [45].
Later, the judge said as follows:
In my assessment, it is relevant that the police entered the premises under the authority of a safe custody warrant and for no other purpose. There was a legitimate basis to enter and search the premises, even in the absence of the accused, to ascertain the whereabouts of the missing child. For the duration of the period where the child’s whereabouts remained unknown, the search of the premises for the purpose of eliciting information about CM’s whereabouts, including the initial search of the iPad tablet, were within the remit of the authority given by the safe custody warrant.[30]
[30]Reasons, [61].
As a consequence, the judge held that after approximately 30 minutes, Musarra’s search had been conducted ‘without authority’:
From that point in time, I find that First Constable Musarra continued his search of the property for the purpose of investigating whether a crime had been committed, albeit with respect to [CM]. He did so without authority. The safe custody warrant did not authorise a search for this purpose. First Constable Musarra’s ongoing search of the property, without a s 465 warrant having been sought and obtained, was in contravention of Australian law, in that it exceeded the authority of the safe custody warrant, and was improper.[31]
[31]Reasons, [46].
The judge held that Musarra chose to continue his search for a further 30 minutes despite CM’s whereabouts being known and there being no concern that she was being held against her will.[32]
[32]Reasons, [76].
Her Honour concluded that while Musarra acted with ‘indifference’ to his authority to conduct a search, he did not ‘deliberately’ or ‘intentionally’ set out to contradict the legislative regime that governs such searches.[33] She characterised this behaviour as ‘reckless’, holding that he did not set out to cut corners deliberately, but once he was aware that the whereabouts of the child were known to police, ‘he failed to give any thought as to his authority to do so’.[34]
[33]Reasons, [64], [69].
[34]Reasons, [69].
Later in the reasons, the judge noted that the search and locating the video ‘was not an error of judgment made spontaneously in an urgently evolving situation’.[35]
[35]Reasons, [76].
Her Honour concluded on this issue:
In my assessment, First Constable Musarra’s ongoing search of the premises leading to the discovery of the rape video was a serious contravention of the law that governs police search powers. I accept, however, there is no evidence to suggest that exceeding the powers available to police under a safe custody warrant is widespread or endemic. There is no evidence to suggest, and I make no such finding, that senior police who attended the premises played any role in the search conducted by First Constable Musarra. I ultimately conclude this was a mid-range impropriety by First Constable Musarra acting alone.[36]
[36]Reasons, [63].
Next, the judge held that the impropriety was contrary to the right to privacy but noted that the entry to the premises was lawful.[37]
[37]Reasons, [70].
There were no proceedings, as far as her Honour was aware, against Musarra.[38]
[38]Reasons, [71].
In relation to the difficulty of obtaining the evidence, her Honour noted and accepted:
The prosecution concedes that the video footage depicting the alleged rapes and the evidence of drug trafficking would not have been obtained by the police but for the improper search of the premises on 25 December 2020.[39]
[39]Reasons, [72].
After identifying these competing considerations, the judge engaged in the balancing exercise required by s 138(3). She noted that there is a ‘high public interest in the apprehension, prosecution and conviction of those allegedly involved in extremely serious criminal conduct’.[40] In terms of the impropriety of Musarra, her Honour noted that the initial entry to the premises was lawful and did not breach any of the applicant’s rights. She regarded the impropriety of Musarra as mid-range and reckless but considered that he neither deliberately nor intentionally set out to contravene the strict legislative regime that governs such searches and that this was not a case where the police acted ‘with a high handed disregard for the rights of the accused’.[41] The judge also observed that there was no evidence of systemic police abuse of safe custody warrants ‘for the collateral purpose of obtaining evidence of criminal conduct by persons of interest’.[42]
[40]Reasons, [83] and the order made on 15 July 2022 by the judge.
[41]Reasons, [86].
[42]Reasons, [87].
Then the judge held that the prosecution had met the onus of establishing that the desirability of admitting the impugned evidence outweighed the undesirability of admitting improperly obtained evidence.[43]
[43]Reasons, [89].
The judge with ‘some hesitation’ concluded that all the evidence obtained in the course of the April search was admissible pursuant to s 138(1).[44]
[44]Reasons, [90].

The proposed grounds of appeal

The proposed grounds of appeal read as follows:
(1)That the trial Judge erred in failing to place sufficient weight on the nature of the impropriety by Police in continuing to conduct a search of the applicant’s residence after their power to enter and search same was extinguished.
(2)That the trial Judge erred in finding that the impropriety was committed by First Constable Musarra alone without the oversight and/or assistance of senior Police.
(3)That the trial Judge erred in finding that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that has been obtained improperly in the way in which the evidence was obtained.

Submissions on the appeal

The applicant’s submissions

Before the judge, the applicant argued that all the evidence obtained in the course of the April search should be excluded.
Before this Court, this submission was somewhat of a moving feast. At the outset, the applicant’s counsel maintained the position he advocated below. Later, as an alternative, he appeared to argue that as a minimum the judge should have excluded all the electronic items including the iMac video and a specific mobile phone (containing the messages allegedly between the applicant and his ‘customers’). We shall return to this discrepancy.
In terms of the asserted errors, it was said that the judge did not place sufficient weight on the nature of the impropriety and the extent of the recklessness and failed to take into account unspecified other material considerations.
Surprisingly, given the clear wording of the safe custody warrant, the applicant accepted that it permitted the searching of electronic devices if there were reasonable grounds to believe that such a search would help in eliciting information regarding the missing person’s whereabouts. However, even allowing for this concession, it was said that Musarra’s act of reviewing the contents of the iMac video was outside the scope of what was permitted under the warrant.
It was then argued that Musarra’s search went well beyond eliciting information about CM’s whereabouts, and that the actions of the police officers amounted to a search for evidence without an appropriate warrant in relation to any offences that may have been committed by the occupant of the house. The search was described as highly invasive in nature, heightening its impropriety.
It was said that the search became unlawful once Musarra ceased reasonably searching for information regarding CM’s whereabouts and began searching for evidence that she had been at the property and for any offences committed against her.
The applicant then contended that her Honour erred in finding that the impropriety was committed by Musarra alone, without the oversight or assistance of Flannery or Cumming. Both Cumming and Flannery gave evidence that they knew the junior officers and particularly Musarra were conducting a search, and that they did not discuss the power of that search or the extent to which the safe custody warrant permitted such a search. It was submitted that Cumming and Flannery aided and abetted Musarra in his search, and that this compounded the impropriety of Musarra’s search.
Finally, the applicant argued that her Honour erred in deciding that the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence. By failing to consider the applicant’s contentions set out above, her Honour erred in undervaluing the gravity of the impropriety and the extent of the recklessness involved.

The prosecution’s submissions

The prosecution relied upon the judge’s analysis and conclusion.[45] It emphasised the importance of the items seized to the prosecution of the rape and drug trafficking charges, which are self-evidently serious.
[45]Reasons, [54].
The prosecution repeated its concession at trial that part of the search was improper. The judge, it argued, was well aware of this, having noted that the search was ‘… not an inconsequential breach’ and was a ‘serious contravention of the law’ — thus disclosing that sufficient weight was placed by the judge on the level of the impropriety.

It was also pointed out that the judge’s comments that the search ‘exceeds mere carelessness’ and that Musarra stepped into the role of an investigator ‘indifferent to the need for authorisation to do so’ demonstrated that her Honour did not minimise the recklessness of Musarra in conducting the search.
It was argued that the judge was cognisant that the impropriety of the search was heightened by its invasive nature, but nevertheless held that the impropriety did not outweigh the probative force of the material secured in the second search.
The prosecution contended that there was no error by the judge in focusing on the actions of Musarra alone. Both Flannery and Cumming were ‘passive and distracted’ during their time at the house while Musarra was actively conducting the improper search.
The prosecution submitted that no House v The King[46] error has been identified in the judge’s decision to admit the evidence. In the absence of such an error, the judge’s intuitive decision regarding the weight that ought to be given to the factors in s 138 should not be interfered with. Her Honour’s reference to concerns that she had about the way that the evidence was obtained included the gravity and nature of any impropriety or recklessness, and these aspects were not undervalued in her Honour’s decision to admit the evidence.
[46](1936) 55 CLR 499; [1936] HCA 40.
The prosecution did not, in its submissions to this Court or below, endeavour to identify any limited number of items that could be distinguished from others based on when they might have been identified in the Christmas Day search. In other words, it was ‘all in’ or ‘all out’ in the s 138 exercise.

Consideration

It was not in issue that the items seized pursuant to the April warrant potentially fell within the terms of s 138(1)(b).
The applicant appears to have accepted that it was necessary to demonstrate a House v The King type error, as opposed to the Court of Appeal substituting its own view if it considered that the conclusion reached by the trial judge was incorrect.[47]
[47]See Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 573 [48]–[49] (Gageler J), 574 [85] (Nettle and Gordon JJ); [2018] HCA 30.
It is appropriate to note at the outset that the proper approach to appeals in relation to review of a decision by a primary judge as to admissibility under s 138 remains unresolved.
In Kadir v The Queen,[48] the High Court left open the question as to whether a determination under s 138(1) requires the demonstration of a House v The King error.[49]
[48](2020) 267 CLR 109; [2020] HCA 1 (‘Kadir’).
[49]Ibid 122, 122–3 [8]–[9] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); [2020] HCA 1.
In R v Riley,[50] decided after Kadir, Bathurst CJ, conducted a detailed survey of recent authority as to the appropriate approach to a s 138 determination, and said as follows:
In these circumstances, were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King.[51]
[50][2020] NSWCCA 283 (Bathurst CJ, Button J, Wilson J) (‘Riley’).
[51]Ibid [112] (Bathurst CJ, Button and Wilson JJ agreeing at [138], [139]).
However, his Honour also noted:
Second, as Gummow and Hayne JJ pointed out in Em,[52] it is necessary to read the Act as a whole. In that context particular reference must be made to s 101 and s 137. In relation to these sections, the preponderance of authority in [NSW] is that appellate review is governed by the principle of judicial restraint expressed in House v The King: see in relation to s 101 for example, R v Fletcher [2005] NSWCCA 338 … at [1] and [65]; AW v R [2009] NSWCCA 1 at [45]; DAO at [104]; as to s 137 see Vickers v R [2006] NSWCCA 60 … at [76]; R v Blick [2000] NSWCCA …; R v Arvidson [2008] NSWCCA 135 … at [27]; CA v R [2017] NSWCCA 324 at [98]; cf Riley at [161]–[162]. It should be noted that a different approach has been taken in Victoria to the predominant NSW approach: McCartney v R (2012) 38 VR 1 … at [31]–[32] (cited with apparent approval in Bauer at fn 65); Karam v R [2015] VSCA 50 at [118]. Most importantly, as was pointed out by the respondent, the preponderance of authority, both in [NSW] and Victoria, is to the effect that the approach to appellate review of decisions under s 138 is analogous to that set out in House v The King …. Even if it was necessary to do so, I would have had some hesitation in stating these cases were wrongly decided. However, because I am of the view that the trial judge erred in the House v The King sense it is unnecessary to reach a final conclusion on this issue.[53]
[52]EM v The Queen (2007) 232 CLR 67; [2007] HCA 46.
[53]Riley [2020] NSWCCA 283, [114].
As Bathurst CJ noted,[54] the approach of this Court has been to adopt an approach analogous to that set out in House v The King: DPP (Vic) v MD,[55] Director of Public Prosecutions (Vic) v Marijancevic (‘Marijancevic’),[56] Murray v The Queen[57] and Slater v The Queen.[58] This was also the approach adopted more recently in Wu v The Queen (‘Wu’).[59]
[54]Riley [2020] NSWCCA 283, [67].
[55](2010) 29 VR 434; [2020] VSCA 233.
[56](2011) 33 VR 440 (Warren CJ, Buchanan JA, Redlich JA); [2011] VSCA 355.
[57][2017] VSCA 236, [47] (Priest, Beach and Kaye JJA).
[58][2019] VSCA 213.
[59][2020] VSCA 94 (T Forrest JA, Emerton JA and Croucher AJA).
Therefore, the appropriate course for this Court is to proceed on the basis that it is necessary for the applicant to show a House v The King error. As will be seen, whichever approach is adopted, the outcome will be no different.
In our opinion, each of the proposed grounds of appeal should be upheld; indeed, in some respects, the scope of the submissions made by the applicant are restrained, particularly in relation to the degree of impropriety and unlawfulness of the actions of the three primary officers — a matter we will develop below.
Notwithstanding the judge’s diligent application to the evaluation of the s 138 criteria, we are satisfied that there are four distinct errors that fall within the proposed grounds of appeal, and which enliven the House v The King principle requiring this Court to consider the application afresh.
First, there is no basis to conclude, as her Honour did (see [80] above), that the safe custody warrant gave the police any greater power to conduct its search than that which its express terms stated. In holding that the warrant should not be construed narrowly and empowered the police to continue to search the house once it was known that CM was not present in an effort to ascertain her whereabouts, the judge was wrong. This led to her Honour, mistakenly in our view, finding that the presence of the police officers in the house was justified by the safe custody warrant for a period of 30 minutes.
In George v Rockett,[60] the High Court, in considering the basis upon which a search warrant was obtained under Queensland legislation, observed that the common law has long been protective of limitations on the power of entry and search; initially based on the rights of private property and, in more recent times, the protection of privacy.[61] After referring to the terms of the statute in question (that is, s 679(b) of the Criminal Code (Qld)), the Court said:
State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.[62]
[60](1990) 170 CLR 104 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, McHugh JJ); [1990] HCA 26.
[61]Ibid 110 [3].
[62]Ibid 110–11 [4] (emphasis added). See also New South Wales v Corbett (2007) 230 CLR 606, 627 [87] (Callinan and Crennan JJ); [2007] HCA 32.
As each of the senior officers (Cumming and Flannery) conceded, the only authority under the warrant was to endeavour to locate CM and return her to safe custody.
There is nothing in the terms of a warrant that would permit a search for information as to the whereabouts of CM. The warrant solely covers the recovery of CM and not an unlimited search of premises whatever the purpose. Because of the invasive nature of a warrant — permitting what would otherwise be unlawful in terms of entry onto any premises where the police suspect a child to be present — it should be given no greater scope than that which its express terms permit. There is no basis for the implication of wider powers of search of a property. An interpretation which conforms with the terms of the safe custody warrant is necessary given that the warrant can be executed anywhere and at any time in the search for a missing child based on the suspicion of the relevant police officer.
In summary, there was no power (either express or implied) to permit a search of the house (or of the electronic devices within it) to elicit information regarding CM’s whereabouts — if indeed that was ever the purpose of the search, which we doubt.
Second (and this flows from the first point as to the terms of the safe custody warrant and the search by Musarra), the judge held that the search remained lawful for approximately 30 minutes. This was on the basis that at that time, Musarra became aware that CM was ‘long gone and on a train’ and from that point the search for her whereabouts should have ceased.
As just noted, the safe custody warrant only had lawful effect in terms of the entry and search while police officers reasonably suspected CM to be within the place which they had entered.[63] Once that suspicion could not be reasonably entertained, the basis for the officers remaining on the premises was at an end and the search (which should have been confined to ascertaining her presence in the house) should have concluded.
[63]See [14]–[16] above.
Cumming, who was the officer in charge of the search, had communicated his view that the house was unoccupied within less than two minutes.[64] Whilst this was the subject of some variation at the committal,[65] it is reasonable to accept that it took no more than five minutes for him to be satisfied that the house was unoccupied and that CM was not present.
[64]See [25] above.
[65]See [25] above.
Musarra’s evidence was that he was aware very quickly that the house was empty. This confirms the evidence of Cumming. Flannery’s evidence that it took 20-30 minutes in which to determine that the house was unoccupied is inconsistent with that of the house search video and the evidence of the other two officers who were on the scene from the start. We consider that it lacks credibility.
The subsequent information that CM was on a train merely confirmed what Cumming and Musarra both knew five minutes into the search — there was no prospect of CM being at the house.
Thus, there was no proper basis for a suspicion by any of the officers present that CM was on the premises after approximately five minutes of the search. From that time onwards (allowing for a reasonable time to leave the house), the officers were unlawfully on the premises and were trespassers. This necessarily means, as proposed ground 1 contends, that the judge did not give sufficient weight to the duration and nature of the search, and particularly to its invasiveness for a period of nearly one hour.
Accepting for the moment that the terms of the warrant permitted a search for evidence as to the whereabouts of CM (as her Honour held), the house search video demonstrates that Musarra was not undertaking a search directed to ascertaining CM’s whereabouts. Details of the Christmas Day search are set out at [23]–[47] above.[66] Musarra proceeds from room to room rummaging through the contents of each of the rooms of the house. There is nothing to suggest that he was conducting a forensic search to find evidence which might lead to ascertaining the whereabouts of CM. We are in the same position as her Honour, in that we did not have the opportunity to see Musarra give evidence, however we regard his evidence as to the basis for the conduct of the search after it was clear that CM could not be located on the premises also as lacking credibility.
[66]As to the evidence of the police officers, Musarra, Flannery and Cumming, given at the committal in relation to the Christmas Day search. See [55]–[63] above.
Third (and this also falls within proposed ground 1), the judge was wrong in characterising the actions of Musarra as reckless and constituting mid‑level impropriety. We shall expand on this in a moment; it suffices to say that we consider, given the length of time over which the search was conducted, that the actions of the police — not confined to Musarra — should be considered to be deliberate and that the level of impropriety — in truth illegality — was considerably higher than mid-range.
Fourth, the nub of her Honour’s finding in relation to the impropriety relates to Musarra’s conduct. The applicant, in proposed ground 2, criticises the limited nature of this finding. This should be accepted. We will also return to this matter shortly, but the point is simple: the impropriety was not just that of Musarra and should not have been confined to an analysis of his actions. As the video amply demonstrates, and the evidence given by Cumming confirms, Musarra was acting under the authority of Cumming and the impropriety — unlawfulness — of the search was just as much of the senior officers present (Cumming and Flannery) as it was of Musarra. These officers were present whilst Musarra continued his unlawful search for over one hour and are regularly seen on the house search video. The judge was wrong to focus only on Musarra’s actions, and the conduct of the two senior officers, Cumming and Flannery, should have been scrutinised and formed part of the analysis of the level of impropriety of the search.
It follows that we accept the applicant’s submissions that House v The King errors have been demonstrated and that it is for this Court to reconsider whether any and if so which items seized in the April search should be excluded under s 138. Proposed ground 3 is enlivened.

Findings of fact

Although it may be clear from our previous observations, we should set out the findings of fact upon which we propose to base this analysis:
•The house was owned by the applicant’s father and the applicant had permission to reside there.
•The applicant’s father and the applicant did not give permission to the police officers to enter or remain in the house.
•The police officers were entitled to have a suspicion that CM was on the premises at the time that they entered the house.
•The initial entry into the house by the police officers in executing the safe custody warrant was both lawful and appropriate and authorised by the terms of that warrant.
•The police officers were entitled to search the house to endeavour to locate CM and return her to the care facility.
•Within five minutes of entering the house, Cumming, the officer in charge of the search, had no basis for suspecting that CM was on the premises.
•Similarly, at about that time, Musarra could not have had any basis for suspecting that CM was on the premises. It is inconceivable that any other officer (including Flannery and notwithstanding his evidence) could have entertained that suspicion after that period of time.
•Once the suspicion as to CM’s whereabouts had ceased and notwithstanding that the safe custody warrant was still extant, the police officers’ presence in the house was unlawful. From that time onwards, they were trespassers and their actions in conducting the search were improper and in contravention of Australian law within the meaning of s 138(1).
•The iMac video was inspected and watched by Musarra approximately 55 minutes after the search had become unlawful.[67]
•The April warrant was issued in relation to the alleged offence of rape. It was accepted by the prosecution that, but for the Christmas Day search, the April warrant would not have been obtained. Accordingly, the items seized were obtained in consequence of an impropriety and a contravention of Australian law: s 138(1)(b).
•The items seized in the course of the April search are set out at [51] above.
•In the course of the April search, the iMac video relevant to the rape charges was seized.
•In the course of the April search, evidence relevant to the drug possession and drug trafficking charge were seized which included cannabis, methylamphetamine, drug paraphernalia, snap seal bags and text messages on the applicant’s iPhone.
•The prosecution conceded that the Christmas Day search exceeded the authority granted by the safe custody warrant and was ‘improper’.[68]

Kadir

[67]That is, just over 60 minutes into the search; See [39] above.

[68]Reasons, [4].

It is helpful at this point to return to the facts and decision in Kadir.[69] Mr Kadir was charged in the District Court of New South Wales with offences involving cruelty to animals. Application was made under s 138 of the Evidence Act 1995 (NSW) concerning three separate items of evidence.[70] The first was surveillance evidence taken by a documentary photographer (the ‘surveillance evidence’). This was excluded by the trial judge pursuant to s 138(1) on the basis that it was obtained unlawfully. In addition, the judge excluded the asserted ‘poisoned fruit’ evidence: the evidence obtained in the course of the execution of a subsequent search warrant by officers of the Royal Society for the Prevention of Cruelty to Animals (the ‘search warrant evidence’). The judge also excluded evidence obtained by the photographer who interviewed Mr Kadir, during which he made admissions relevant to the animal cruelty offences (the ‘admissions evidence’).
[69](2020) 267 CLR 109; [2020] HCA 1.
[70]This provision is identical to s 138 of the Victorian Act, a consequence of the adoption of the Uniform Evidence Law by New South Wales and Victoria (among others): see James D Metzger, ‘Review Essay: Critical Perspectives on the Uniform Evidence Law’ (2018) 40(1) Sydney Law Review 147, 148; Australian Law Reform Commission, Uniform Evidence Law: The Uniform Evidence Acts (Report No 102, August 2010) [2.1].
The High Court held that the surveillance evidence was inadmissible as it involved a deliberate and serious contravention of Australian law, seeking evidence which could not be obtained lawfully.[71] However, the search warrant and admissions evidence were held to be admissible.
[71]Kadir (2020) 267 CLR 109, 133 [37]; [2020] HCA 1.
As to the admissions evidence and its connection with the alleged impropriety, the High Court said:
As the Court of Criminal Appeal observed, s 138 does not enact the doctrine that prevailed in the United States, requiring the exclusion of the ‘fruit’ of official illegality unless the impugned evidence was derived ‘by means sufficiently distinguishable to be purged of the primary taint’. Section 138 provides for the exclusion of evidence obtained by, or in consequence of, impropriety or illegality, unless the product of balancing the competing public interests favours admitting the evidence. The trial judge’s analysis of the admissibility of the search warrant evidence and the admissions did not go beyond satisfaction of the causal link between the evidence and the contravention of the [Surveillance Devices Act 2007 (NSW)]. The causal link engages s 138, but the weighing of the competing public interests under s 138(1) involved considerations which are not the same as those applying to the admissibility of the surveillance evidence.[72]
[72]Ibid 134–5 [40], quoting R v Grech [2017] NSWCCA 228, [120].

Then as to the weighing of the considerations generally:
Self-evidently, factor (a), the probative value of the evidence, and factor (b), the importance of the evidence in the proceeding, cannot be picked up from findings made with respect to the surveillance evidence and applied to the search warrant evidence or the admissions. None of the s 138(3) factors can be considered in isolation. Evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available to the prosecution. In this case, the importance of the search warrant evidence, and, in Mr Kadir’s case, the admissions, is greater by reason of the exclusion of the surveillance evidence. Moreover, the weighting of the factors that are concerned with the impropriety or illegality to the balancing of the public interests may differ as between the surveillance evidence, the search warrant evidence and the admissions.
…
The onus is upon the respondent to establish that the desirability of admitting the search warrant evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained. The capacity of the search warrant evidence to rationally affect the assessment of the probability that the appellants committed acts of serious animal cruelty is high. The fact that the prosecution case does not include the surveillance evidence increases the importance of the search warrant evidence in the proceeding. Its importance is high. The nature of the offence is, as the trial judge found, serious. The gravity of the contravention is, as his Honour found, ‘very high’. The contravention was repeated and deliberate. It interfered with Mr Kadir’s privacy, a breach of Art 17 of the [International Covenant on Civil and Political Rights]. In circumstances in which the recording was confined to activity in the bullring and did not extend to Mr Kadir’s home, and in light of the nature of the activity conducted in the area that was the subject of the recording, his Honour was right to accord this factor no particular weight. The circumstance that neither Ms White nor Ms Lynch is likely to be subject to any proceeding arising out of the contravention is a neutral consideration. In circumstances in which the RSPCA was not complicit in the contravention, factor (h) is also neutral.[73]
[73]Ibid 135 [42], 137 [47].
Then as to the search warrant evidence:
The admissibility of the search warrant evidence arises in criminal proceedings in which the desirability of admitting the evidence reflects the public interest in the conviction of wrongdoers. The undesirability of admitting evidence obtained in consequence of the deliberate unlawful conduct of a private ‘activist’ entity is the effect of curial approval, or even encouragement, of vigilantism. The RSPCA had no advance knowledge of Animals Australia’s plan to illegally record activities at the Londonderry property. There is nothing to suggest a pattern of conduct by which Animals Australia or other activist groups illegally collect material upon which the RSPCA takes action. The desirability of admitting evidence that is important to the prosecution of these serious offences outweighs the undesirability of not admitting evidence obtained in the way the search warrant evidence was obtained.[74]

The s 138 factors

[74]Ibid 137 [48].

We return to the eight s 138(3) factors which a court must take into account in determining whether, to use the words of the statute, the prosecution has established that 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. For the moment, we will assume that the issue is whether all of the items seized in the course of the execution of the April warrant are inadmissible, as argued before the judge.

Probative value of the evidence

We agree with her Honour as to the ‘centrality of the video evidence in relation to the four counts of rape’ and that the text messages in relation to the drug trafficking charges were also highly significant. Each are, to use her Honour’s words, ‘foundational’ to those charges.[75] It was, not unsurprisingly, conceded by counsel for the applicant that the probative value of the evidence was high.
[75]Reasons, [54].
This counts heavily in favour of the admission of the evidence.

The importance of the evidence to the proceeding

As the judge noted, and correctly so, it is close to certain that the rape charges and the drug trafficking charge could not proceed if the video and the text messages respectively are declared to be inadmissible.[76] We accept her Honour’s conclusion on this issue.
[76]Ibid.
This factor also counts heavily in favour of the admission of the evidence.

The nature of the relevant offences

The rape charges are self-evidently particularly serious and carry a maximum penalty of 25 years’ imprisonment.
The drug trafficking offence carries a maximum penalty of 15 years’ imprisonment.
The seriousness of the charges also counts in favour of the admission of the evidence.

The gravity of the impropriety or contravention (of an Australian law)

In Marijancevic, this Court, in addressing s 138(3)(d), said as follows:
At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct ... There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread.[77]
[77]Marijancevic (2011) 33 VR 440, 458 [67]; [2011] VSCA 355. See also Wu [2020] VSCA 94 [74]–[75].
Subsequently, in McElroy v The Queen,[78] this Court, after citing with approval the statement above, went on to say:
In his ruling, the trial judge appeared to deal with the gravity of the impropriety or contravention by reference to the gravity of an impropriety or contravention generally. This approach fails to take into account the plain intention of Parliament, embodied in s 138(3)(d), that courts have regard to the gravity of the specific conduct that constitutes the impropriety or contravention.[79]
[78](2018) 55 VR 450 (Santamaria, Beach and Ashley JJA); [2018] VSCA 126 (‘McElroy’).
[79]Ibid 468 [124].
We have already expressed our view that her Honour mischaracterised the nature and degree of impropriety of the search. We do not accept her Honour’s characterisation of the search as constituting ‘a mid-range impropriety by First Constable Musarra acting alone’ (see [86] above).
To characterise the search ‘as a careless mistake’, as the prosecution did before her Honour,[80] is plainly wrong. This was a deliberate, continuous, invasive and totally inappropriate search of private property, in the absence of the owner and occupier and without lawful excuse. The specific conduct was that of the two senior officers and Musarra. It was executed by members of Victoria Police including two sergeants, who both knew that the terms of a safe custody warrant precluded a search of the premises other than in endeavouring to locate and place in safe custody the subject of the warrant. This conduct can be contrasted to that in issue in R v Jamieson[81] where the police search of the house pursuant to an unsigned warrant in the presence of the accused was held not to involve any unfairness so as to invoke the exercise of the Bunning v Cross[82] discretion.
[80]Reasons, [65].
[81]2003 VR 119; [2003] VSCA 224 (‘Jamieson’).
[82](1978) 141 CLR 54. See also Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66.
The house search video and the evidence of Cumming demonstrates that Musarra did not act alone but rather acted under the authority of Cumming and Flannery and in conjunction with other officers in conducting an unlawful search for over one hour.
We also have no confidence in Musarra’s evidence — which was accepted by the judge, at least in terms of the initial part of the search — that, for a period of 30 minutes, the search was to endeavour to ascertain the whereabouts of CM. Once the search is analysed in detail (as we have at [23]–[47]), we can see little that demonstrates a search to locate CM. For instance, removing a backpack and rifling through its contents,[83] and then looking under a mattress and going through other items has nothing to do, at least it would seem to us, with endeavouring to locate CM. Nor does Musarra’s continued searching of the contents of the house once he declares that police ‘must have missed her by a mile’.[84]
[83]See [34] above.
[84]See [37]–[38] above.
In our view, it is far more likely that Musarra, under the authority of Cumming, was simply conducting a search of the premises in an endeavour to find evidence of criminal activity.
When all these matters are considered together, we are compelled to the conclusion that this conduct is at a high level of impropriety given that it involved the actions of multiple police officers conducting an unlawful search which was extraordinarily invasive of the property and belongings of the applicant. The two senior officers both knew the limits on the warrant and notwithstanding this, condoned the continuation of the search. We have no confidence as to whether Musarra had any idea as to what legal constraints operated under the warrant.
The conduct of the Christmas Day search did ‘not merely blur or contravene’ the minimum standards expected of law enforcement officers ‘in some minor respect’.[85] It was ‘clearly inconsistent with’ those standards.[86]
[85]Robinson v Woolworths Ltd [2005] NSWCA 426 [23].
[86]Ibid.
For completeness, we should add that it was not suggested by the applicant that the search involved subterfuge or was of a clandestine nature — to the contrary, it is the house search video that demonstrates the impropriety of the search.
This consideration — namely the high degree of impropriety — counts significantly against the admission of the evidence.

Whether the impropriety or contravention was deliberate or reckless

‘Deliberate’ is defined in Black’s Law Dictionary to mean ‘[i]ntentional; premeditated; fully considered’.
In Marijancevic this Court said as follows:
It was for the applicant to demonstrate that it was not open to the trial judge to ultimately form the view that he did as to the officers’ credibility. There is considerable force in the applicant’s submission that the practice followed by McIntyre and Davies was neither deliberate, in the sense of knowingly illegal, or reckless but was rather inadvertent. The evidence did not show that this was an intentional abuse of power or a wilful disregard of rights.[87] Having regard to s 142(2) of the Evidence Act and the requirement that the standard of proof is the balance of probabilities and keeping also in mind the principle in Briginshaw,[88] there were countervailing reasons to a finding that this was deliberate conduct.[89]
[87]Jamieson (2003) 9 VR 119; [2003] VSCA 224.
[88]Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
[89]Marijancevic (2011) 33 VR 440, 461 [80]; [2011] VSCA 355.
In determining whether the conduct was deliberate or reckless, her Honour solely addressed the conduct of Musarra and characterised it as reckless. As we mentioned earlier, we consider this to be erroneous and what is necessary is the consideration of the conduct of the two sergeants and Musarra.
When the overall conduct of the two senior officers, Musarra and his junior colleagues is examined critically, in our view the only sensible conclusion open is that the impugned search,[90] conducted with the authority of and under the supervision of Sergeants Cumming and Flannery, was carried out intentionally and in the knowledge that it was unlawful. This amounted to a wilful contumelious disregard of the applicant’s rights.
[90]That is from the five-minute mark onwards.
This is for two reasons. First, both Cumming and Flannery admitted, in their evidence at the committal, that once it was concluded that CM was not on the premises, they had no authority to be there. The decision to continue the search after that point in time (presumably made by Cumming or Flannery or both) had to be intentional — it was not inadvertent or careless. It was not a mistake or an error of judgment. Second, the duration and invasiveness of the search tells against any other conclusion. This was a considered and lengthy exercise — not a minor slip. It appears to have been an enterprise conducted by the police, with the supervision of Cumming and Flannery, to search every nook and cranny of the applicant’s house, almost certainly in search of evidence of criminal conduct.
This counts powerfully against the admission of the evidence.

Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the ICCPR

As mentioned earlier, it was not in issue that the premises were owned by the applicant’s father and that the applicant was in possession of the premises.
It was accepted by the prosecution that the impropriety was contrary to the right to privacy recognised by art 17 of the International Covenant on Civil and Political Rights.[91] Her Honour noted that the entry to the premises was lawful.[92] We would place little store on this element given the length of time the officers were unlawfully on the premises and the invasive nature of the search. This was, as we have mentioned earlier, a flagrant breach of the right to privacy of the applicant. The fact that the initial entry was lawful makes little difference.
[91]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[92]Reasons, [70].
This factor also counts against the admission of the evidence.

Whether any other proceeding has been taken or is likely to be taken in relation to the impropriety

In Kadir, the High Court observed:
Since the evidence of the admissions is capable of rational acceptance, consideration of the probative value of the admissions is to be assessed upon the assumption that the evidence will be accepted. Their probative value is high and they are important evidence in the case against Mr Kadir. The remaining factors under s 138(3) have the same weight in relation to the admissions as to the search warrant evidence. The undesirability of admitting the admissions does not raise the same concerns with respect to condoning vigilantism as does the search warrant evidence. As the Court of Criminal Appeal rightly observed, the obtaining and viewing of the surveillance evidence was a step in the investigation by Animals Australia that led to Ms Lynch speaking with Mr Kadir, but that was all. And as their Honours also observed, Ms Lynch did not make use of any knowledge that she gained from the surveillance evidence in her conversation with Mr Kadir. Their Honours’ conclusion, that the bare connection between the contravention of Australian law and obtaining the admissions is unlikely to convey curial approval or encouragement of the contravention, is apt. The undesirability of admitting evidence obtained in the way the admissions were is outweighed by the desirability of the evidence being admitted in support of the prosecution case.[93]
[93] Kadir (2020) 267 CLR 109, 138–9 [51]; [2020] HCA 1.
It was accepted that no proceeding had been taken against any of the officers and no evidence was adduced in regard to the likelihood of any such action. This is of real significance.
The unlawful, deliberate and unexplained conduct of the search in the absence of any disciplinary action being taken or explanation proffered for such inaction weighs very much in favour of excluding the evidence.

The difficulty of obtaining the evidence without impropriety

In Kadir, the High Court said:
The significance of factor (h) to the balancing of the competing public interests under s 138(1) will vary depending upon the circumstances. In a case in which action is taken in circumstances of urgency in order to preserve evidence from loss or destruction, it is possible that factor (h) would weigh in favour of admission, notwithstanding that the action involved deliberate impropriety or illegality. Putting such a case to one side, where the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission. By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration. The assumption on which the parties and the Courts below proceeded, that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law, inverts the policy of the exclusion for which s 138 provides.[94]
[94]Ibid 127–8 [20].
This consideration is necessarily hypothetical and that creates a problem. There is no evidence that Victoria Police knew anything about the applicant’s potential criminal conduct before the Christmas Day search and, as such, had no basis for seeking a s 465 warrant. As the prosecution conceded, absent the Christmas Day search, the April warrant would not have been obtained and the ensuing search would not have been conducted.
On the other hand (and in theory), a standard s 465 search warrant could have been obtained on Christmas Day or shortly thereafter, but that presumes knowledge of the applicant’s asserted criminal behaviour which only came to light as a result of the Christmas Day search.
We regard this as neutral given its hypothetical nature.

Conclusion as to admissibility

It is necessary, having taken all these matters into account, to balance the competing considerations.
Before doing so, we return to the decision of the High Court in Kadir.[95] At first blush, it might be thought that there are similarities between the admissibility of the search warrant and admissions evidence in Kadir and the April search warrant evidence.
[95](2020) 267 CLR 109; [2020] HCA 1.
In both cases, the subject evidence falls within s 138(1)(b). That is, evidence obtained lawfully as a result of an earlier impropriety or contravention of an Australian law.
However, we think that is where the similarity ends. In Kadir, the search warrant evidence was obtained by the RSPCA. Consequently, the High Court said:
As the Court of Criminal Appeal also observed, where the misconduct involves the same investigative body, the considerations relevant to weighing the public interests will commonly be the same in respect of evidence obtained under s 138(1)(a) or (b). Here, the surveillance evidence was obtained in contravention of the law by a private body (or persons engaged by it), whereas the search warrant evidence was obtained by a regulator acting lawfully and without prior knowledge of the contravention, albeit that it was procured on the strength of the surveillance evidence. The causal link between the contravention and the admissions was tenuous, a consideration which the Court of Criminal Appeal was right to find was capable of affecting the weighing of the public interest in not giving curial approval or encouragement to the unlawful conduct.[96]
[96]Ibid 135 [41] (emphasis added).

In contradistinction to the search warrant evidence in Kadir, the evidence seized during the execution of the April warrant was taken by the same investigative body which had conducted the unlawful search. It is inconceivable that someone of authority at Victoria Police (probably one of the two sergeants) was unaware of the unlawful actions of its officers during the Christmas Day search.
Unlike the interview of Mr Kadir which contained the admissions evidence and which the High Court held had no relationship to the surveillance evidence, the execution of the April warrant was inextricably bound up with the Christmas Day search. Here, there was a direct and powerful link (not tenuous as in the link between the contravention and the admissions in Kadir). Without the Christmas Day search, as was conceded by the prosecution, the April search would not have occurred.
There is one final issue to mention.
Before the judge, the applicant sought to exclude all the evidence obtained under the April warrant.[97] There was no further discussion, it seems, as to whether any distinction should be made between the items seized. Certainly, there was no application by the prosecution to distinguish between any of the items seized.
[97]Reasons, [2].
In the applicant’s summary of contentions before this Court, his position was more nuanced:
In issue is the admissibility of a video allegedly depicting [the applicant] committing multiple acts of rape on his former partner (rape video), illicit substances and a mobile phone containing text messages allegedly of drug trafficking.
At no time before this Court did the prosecution seek to argue that any distinction should be made between the items seized. In other words, it was all or nothing.
At the outset of the oral submissions, senior counsel for the applicant confirmed the approach taken before the judge — namely that everything seized in the April search ought to be excluded.
Later in discussions, senior counsel stated that in respect to the drug trafficking charge the drug paraphernalia evidence was sought to be excluded, but then appears to have agreed with a question from the bench that he did not seek to have it excluded in respect of the drug possession charge.
Beach JA put the following question:
BEACH JA:… I thought you said to me that all 35 items of evidence referred to in the summary of charges was sought to be excluded but in fact, no, it’s a subset of that because glassware and actual cannabis and the like are not said to be excluded.
COUNSEL:That’s correct, your Honour, because what was there and I apologise for not making that clear.
Counsel for the applicant went on to say:
So we don’t argue that the observations of police when they were lawfully on the premises fall into that category because they saw that at the time.
Subsequently, the Court asked for a list to be provided of the items which the applicant sought to exclude.
On 13 December 2022, the applicant responded by email as follows:
The applicant respectfully contends that all [35] items listed in the [Exhibit Log] ought to be ruled inadmissible for the reasons previously advanced.
Alternatively, it was submitted, that all electronic devices should be treated as inadmissible. The applicant also noted that the balance ‘although falling outside the ambit of the warrant itself, may be ruled admissible’. These included cannabis, driver’s licence, cash, debit cards, pills, prescriptions, white crystal substance, digital scales and deal bags, digital scales and bottles of liquid.
The short point is that there is a significant degree of confusion as to the applicant’s position. For present purposes, we will assume that it contends that all the items seized should be excluded and that its alternative (or fallback) position is that the items listed in the email should be excluded.
As we understand it, the distinction between the two types of items referred to in the email is that Musarra observed a collection of drug paraphernalia in the garage during a time at which the officers were lawfully on the premises.[98]
[98]See [31] above.
Although there is some attraction in trying to distinguish between items which might be said to have been obtained in the course of the execution of the April warrant and were related to observations made by the police when lawfully on the premises on Christmas Day, for the following reasons, we do not think that it is appropriate to do so.
First and foremost, the prosecution case has always been that it is either all or nothing in terms of the admissibility of the items seized pursuant to the April warrant. It has never attempted to differentiate between items which might be said to be lawfully obtained and others which were not. It was open to the prosecution to persuade the Court as to some distinction in terms of items seized. It chose not to do so.
Second (and in any event), the April warrant was issued on the basis of the seizure of electronic items connected with the rape allegations. Although the items connected with the drug trafficking and drug possession charge (in particular the paraphernalia and the text messages on the iPhone) were lawfully seized, their connection to the execution of the April warrant is tenuous.
It follows that we proceed on the basis (as did the trial judge) that the issue is whether all the items seized in the execution of the April warrant are admissible.
Returning to the synthesis, the prosecution has not discharged the burden imposed by s 138. Specifically, the prosecution has not demonstrated that the desirability of admitting this unlawfully obtained evidence outweighs the undesirability of admitting it into evidence.
We accept that in many cases the importance of the evidence and the seriousness of the charges will mean that it is more desirable to admit the evidence despite an impropriety or unlawfulness, as the judge held in this case.
However, this is not such a case. Whilst the iMac video and the iPhone text messages are critical to the prosecution of very serious charges, the impropriety and contravention of the law by two senior police officers and their junior officer is stark and deliberate.
We repeat there was no legitimate basis for the search after five minutes of entering the house and the idea that the balance of the search was directed to ascertaining CM’s whereabouts is rejected. No part of the search after five minutes was directed to ascertain the whereabouts of CM, but rather it appears to have been a forensic exercise directed to eliciting evidence of general criminality without any proper basis for the police officers being on the premises. The house search video is compelling in relation to the invasiveness and duration of the search.
The applicant’s right to privacy was seriously violated over a lengthy period of time and with no apparent consideration given to the illegality of the search and the breach of that right.
It is of real significance that no disciplinary action has been taken against any of the officers and that the prosecution now endeavours to persuade the Court to give its imprimatur to this significant impropriety. Whilst it is not determinative to the outcome of this application, we decline to give judicial imprimatur to a search carried out by sworn officers with such astonishing disregard for both the law and the rights of the applicant.
In our view, and notwithstanding the public interest in pursuing these serious charges, we are not satisfied that that public interest prevails when balanced against the public interest in deterring police illegality, protecting individual rights and maintaining juridical legitimacy.[99]
[99]See Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) as well as Australian Law Reform Commission, Evidence (Report No 38, June 1987).

Disposition of the appeal

The applicant has made out each of the proposed grounds of appeal and should be granted leave to appeal and the appeal allowed.
The orders of the judge dated 15 July 2022 should be set aside and in its place orders to the following effect be made:
All items seized pursuant to the execution of the April warrant on 21 April 2021 at the house are not to be admitted as evidence in the trial of the applicant in the County Court of Victoria in respect of the charges upon which he was committed on 9 March 2022.
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[2023] VSCA 49

10 March 2023