Khalil (a pseudonym) v Director of Public Prosecutions (Cth); Valdes (a pseudonym) v Director of Public Prosecutions (Cth)
[2022] VSCA 56
•7 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2022 0026
| ABDEL KHALIL (a pseudonym)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
[1]Because this is an interlocutory proceeding, pseudonyms have been used in place of the names of the applicants and the reasons have been prepared in a form which omits identifying details.
S EAPCR 2022 0027
| GABRIELA VALDES (a pseudonym) | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGES: | MAXWELL P, NIALL and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 March 2022 |
| DATE OF JUDGMENT: | 7 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 56 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v [Valdes] (Unreported, County Court of Victoria, Judge McInerney, 16 March 2022) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Conspiracy to import commercial quantity of drugs – Exclusion of improperly or illegally obtained evidence – Surveillance evidence obtained pursuant to warrants – Whether obtained ‘in consequence of’ impropriety or illegality – Requirement of causal connection – Whether police trespassed on premises – Entry onto premises lawful – Whether impropriety in drafting affidavit to support warrant application – No impropriety – Leave to appeal refused – Cornwellv The Queen [2010] NSWCCA 59, Ridgeway v The Queen (1995) 184 CLR 19 considered – Evidence Act 2008 s 138 – Residential Tenancies Act 1997 ss 85, 86.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Khalil) | Mr P Tehan QC with Mr G JF Chisholm | James Dowsley & Associates |
| For the Applicant (Valdes) | Mr J R V Kelly SC with Mr L Richter | Stary Norton Halphen |
| For the Respondent | Ms K Breckweg with Ms S Locke | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
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MAXWELL P
NIALL JA
SIFRIS JA:
Summary
The applicants are each facing one charge of conspiracy to import a commercial quantity of a border controlled drug, and two charges of dealing with proceeds of crime. Their joint trial is listed to begin on 26 April 2022.
The prosecution case relies heavily on evidence obtained through the use of listening devices and telephone intercepts. The use of those forms of surveillance was authorised by warrants issued by the Commonwealth Administrative Appeals Tribunal (the ‘Tribunal’), on application by the Australian Federal Police (’AFP’).
Pre-trial applications were made to his Honour Judge McInerney on behalf of both accused, seeking the exclusion under s 138 of the Evidence Act 2008 (‘Evidence Act’) of the evidence obtained by means of that surveillance (‘the surveillance evidence’). The applications for exclusion relied on two separate but related matters: the first was an allegedly illegal search in the course of the investigation, the second was an alleged impropriety in the description of that search in the affidavit relied on in support of the application for the issue of warrants (‘the supporting affidavit’).
On 11 March, the judge refused both applications for exclusion.[2] His Honour having then certified that the exclusion of the surveillance evidence ‘would eliminate or substantially weaken’ the prosecution case,[3] the applicants sought leave to appeal against the ruling. Because of the imminence of the trial, the leave applications were brought on for hearing in this Court as a matter of urgency.
[2]DPP (Cth) v [Valdes] (Unreported, County Court of Victoria, Judge McInerney, 11 March 2022).
[3]Criminal Procedure Act 2009 s 295(3)(a).
For reasons which follow, we would refuse each application for leave to appeal. In our respectful view, his Honour’s ruling is unimpeachable. His clear and detailed reasons are fully supported by the evidence, which we have reviewed, and his Honour was correct to conclude that there was no illegality and no impropriety. The question of exclusion under s 138(1) therefore did not arise.
It is important to emphasise just how tenuous these applications for exclusion were. This is best done by reference to the terms of s 138(1) of the Evidence Act, which provides as follows:
(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.
Self-evidently, the surveillance evidence was not itself ‘obtained improperly or in contravention of an Australian law’. On the contrary, it was obtained pursuant to the necessary warrants issued by the relevant authority. Accordingly, as the applicants conceded in this Court, they were constrained to rely on s 138(1)(b) and, hence, to show that the lawfully-obtained surveillance evidence was nevertheless obtained ‘in consequence of an impropriety or of a contravention of an Australian law’.
As will appear, the alleged illegality related to observations made by an investigating officer, some weeks before the application for warrants was made, at the premises where the applicants resided. The alleged impropriety related to the removal of the word ‘covert’ from the paragraph in the supporting affidavit which described the officer’s attendance at the premises.
As senior counsel for the applicants conceded, the observations made on that occasion were largely confirmatory of information which the applicants had already provided to investigators. Further, the very same information was subsequently volunteered by the first applicant (‘Khalil’) under questioning by Australian Border Force (‘ABF’) officers. Moreover, the paragraph recording those observations was a very small part of a very substantial affidavit, which included a range of information much more directly relevant to the establishment of ‘reasonable grounds to suspect’ that Khalil was likely to commit the importation offence.
Even if the applicants had been able to establish illegality or impropriety as alleged, they would still have had to establish that the issue of the warrants could meaningfully be said to have occurred ‘in consequence of’ those matters. The phrase ‘in consequence of’ in s 138(1)(b) requires the establishment of a causal connection.[4] As counsel accepted, the applicants therefore needed to show that, had the affidavit not contained the impugned paragraph or had the paragraph included the word ‘covert’, the warrants would probably not have been issued.
[4]Cornwellv The Queen [2010] NSWCCA 59, [178]–[180] (McClellan CJ at CL), [292] (Simpson J); Martin v The Queen [2015] ACTCA 38, [64] (Refshauge, Burns and Ross JJ); Heyward v Bishop [2015] ACTCA 58, [73]–[75] (Refshauge, Penfold and Ross JJ).
Given the strong probative force of the balance of the affidavit, and the negligible significance of the paragraph in question, it is difficult to conceive how that causal proposition could ever have been made good.
Factual background
Since 2017, there has been a joint AFP-Victoria Police investigation in relation to the importation and interstate trafficking of methylamphetamine and cocaine. Investigations revealed that Khalil conducted a business of selling imported speakers and other equipment, and that he was living with his wife, the second applicant (‘Valdes’), at an address in Woodstock, Victoria (‘the property’).
The AFP subsequently made enquiries with Ristic Real Estate, the agent which managed the property. Those enquiries revealed that it was leased in April 2018 to two tenants (not the applicants), who had paid a substantial amount of rent in advance.
On 10 July 2018, AFP Officer Hall accompanied Ms Fusun Ristic to the property. Ms Ristic is the director of property management at Ristic Real Estate. The judge found that Officer Hall had attended at the invitation of Ms Ristic. The circumstances of that invitation will be considered in detail below. It is sufficient for present purposes to set out how that visit was described in the impugned paragraph of the supporting affidavit:
On 10 July 2018, police conducted a rental inspection with Ristic on the Woodstock address and spoke to [Khalil] and [Valdes]. Whilst inspecting a large green shed at the back of the residence, police observed [RR] asleep in the front seat of a red coloured Holden Barina bearing Victorian registration TRL 541 parked at that location. The large green shed was opened and inside police observed multiple pallets of what appeared to be speakers, car audio equipment and also cartons with ‘Toys R Us’ written on them. Another smaller storage area contained more pallets of the same. [Khalil] explained that he imported the items as part of his business and had [RR] there to guard the items when he and his wife were not home. He also stated that the property inside the large green shed was worth about one (1) million dollars.
As to illegality, the applicants contended that Officer Hall was a trespasser on the property on that occasion, such that the evidence of what he observed and heard, as recorded in that paragraph of the affidavit, was illegally obtained. The alleged impropriety relates to the phrase ‘police conducted a rental inspection’, as used in the opening sentence of the paragraph. In the draft affidavit, the phrase ‘police conducted a covert rental inspection’ had been used. It was the removal of the word ‘covert’ from the final form of the affidavit which was said to constitute the impropriety.
We deal with those issues in turn.
Was Officer Hall a trespasser?
The only direct evidence about how the visit to the property came about was the evidence of Ms Ristic. She had given evidence (in the form of a statement) and been cross-examined at the applicants’ committal proceedings in November 2020. The judge ruled that Officer Hall was ‘not available to give evidence’, within the meaning of pt 2 of the Dictionary to the Evidence Act.[5]
[5]Evidence Act Dictionary pt 2 cl 4(1)(b).
The relevant part of Ms Ristic’s statement was in these terms:
Not long after this, I went on holidays and our Senior Property Manager took over management of the property. Upon my return from holidays I was informed police had enquired about the Woodstock property and I was introduced to Senior Constable Jason Hall.
Rental properties managed by Ristic Real Estate are subject to routine property inspections carried out at set intervals. Notifications to the owner and tenants are via an App. Tenants are notified by an automated messaging service one month prior to the inspection and reminders are sent seven and three days prior to the inspection.
The first routine property inspection for the Woodstock property was scheduled for Tuesday 10 July 2018. On that occasion I attended with Senior Constable Jason Hall. When we arrived at the property the front gates were open so we entered the property and drove straight up to the house.
Upon my arrival I met a male and female who identified themselves as the tenants. The male introduced himself as [Abdel] and also introduced his wife [Gabriela]. They both seemed pleasant and were co-operative.
Ms Ristic was cross-examined by counsel for Khalil about the circumstances in which Officer Hall had come to attend the property with her on that occasion. The trial judge made the following unchallenged findings:
On 22 June 2018, the tenant sent details as to an application by Mr [Khalil] and his wife to be sub-tenants of the property. Such was accepted apparently by the agency. In evidence, Ms Ristic said something along the lines of ‘well I had no option’.
…
However, what is clear as a matter of law is that a sub-tenancy or an assignment of lease in the circumstances, was such as to impose upon the new sub-tenant and/or assigned tenant the same obligations as were in the Lease, hence, the tenant ‘will incur’ the prescribed three-month inspection, which had been organised by Ms Ristic.
Ms Ristic said in evidence that as a result of such developments, that is the advice that she had been given, the fact that there were unknown people on the property, and the application by the tenants, she had fears for her safety and indeed was scared. Insofar as the proposed inspection, Ms Ristic decided to phone Federal Agent Hall to ask him to attend with her.
…
It is to be noted that Ms Ristic’s sworn evidence at the committal was that at no stage did Federal Officer Hall request her to allow him to attend the property. It was on the basis that she was concerned for her safety, and indeed scared, that she said that she had phoned him twice to seek his attendance at the inspection.
Also, prior to the attendance, she had said to Hall that she would introduce him as a member of her staff.
Based on those findings, his Honour concluded that ‘at no stage was there [a] trespass upon the property by Federal Agent Hall’. The basis of that decision was that s 85 of the Residential Tenancies Act 1997 (‘RTA’) authorised Ms Ristic to enter the property and to take Officer Hall with her as a person who was ‘necessary to achieve the purpose of the entry’.
As in force at the time, ss 85 and 86 of the RTA provided as follows:
85 Entry of rented premises
A landlord or the landlord’s agent has a right to enter rented premises together with any persons who are necessary to achieve the purpose of the entry—
(a)at any time agreed with the tenant if the tenant has consented not more than 7 days before the entry; or
(b)for a purpose set out in section 86, at any time between 8 a.m. and 6 p.m. on any day (except a public holiday) if at least 24 hours’ notice has been given to the tenant in accordance with section 88.
86 Grounds for entry of rented premises
(1) A right of entry in respect of rented premises may be exercised if—
(a) before giving notice of entry, a notice to vacate or a notice of intention to vacate the rented premises had been given and entry is required to show the premises to a prospective tenant; or
(b) the premises are to be sold or used as security for a loan and entry is required to show the premises to a prospective buyer or lender; or
(c)entry is required to enable the landlord to carry out a duty under this Act, the tenancy agreement or any other Act; or
(d) entry is required for valuation purposes; or
(e)the landlord or the landlord’s agent has reasonable grounds to believe that the tenant has failed to comply with his or her duties under this Act or the tenancy agreement; or
(f) entry is required to enable inspection of the premises and entry for that purpose has not been made within the last 6 months; or
(g)entry is required to enable inspection of the premises for the purposes of proceedings arising from or relating to an application made under section 233A(3).
(2) A right of entry for a purpose set out in subsection (1)(a) may only be exercised in the period of 14 days before the termination date specified in the notice to vacate or notice of intention to vacate.
(3)Despite subsection (1), in the case of the first tenancy agreement entered into between a landlord and a tenant in respect of rented premises, a right of entry referred to in subsection (1)(f) may only be exercised after the end of the first 3 months of the tenancy.
…
According to the applicants’ submission, even if Ms Ristic’s entry to the property was lawful, Officer Hall was a trespasser. As at first instance, the argument concentrated on two aspects of Officer Hall’s attendance. First, it was said, he had taken improper advantage of the invitation from Ms Ristic by making his own observations of the property during the inspection. Secondly, that impropriety was said to have been both demonstrated, and aggravated, by Officer Hall’s having ‘played along’ with the deceit perpetrated by Ms Ristic, when she introduced him to the applicants as a member of her staff.
Senior counsel for Khalil posed the rhetorical question, ‘Why did Hall not identify himself as a police officer?’ The answer, it was submitted, was obvious: Hall well knew that if he disclosed his true occupation the inspection would be terminated, and he would lose the opportunity to make observations.
Subject to a qualification which we deal with below, counsel for the applicants accepted that Ms Ristic herself had a right under s 85 to enter the property. That being so, the only question to be resolved on the issue of trespass was whether the legal authority to enter extended to Officer Hall, as a person ‘necessary to achieve the purpose of the entry’.
In our respectful view, his Honour was plainly correct to conclude that, in the circumstances of this case, the authority extended to Officer Hall. As Ms Ristic made clear in her evidence, and as his Honour found, she was apprehensive about going to the property alone and decided that it was necessary, in order for her to carry out the rental inspection which had been arranged, for her to be accompanied. She asked Officer Hall to attend for that purpose. On the evidence, that was the sole basis for the invitation, and it was wholly unprompted by Officer Hall.
The fact that Ms Ristic reasonably viewed Officer Hall’s presence as necessary to enable her to effect the proper purpose of inspecting the property was quite sufficient, in our view, to satisfy the test of necessity under s 85 of the RTA. That an estate agent might adjudge it necessary to be accompanied on a particular property inspection, rather than to go alone, would seem to be just the kind of eventuality which the legislature had in contemplation in authorising the entry of accompanying persons.
The conclusion that Officer Hall’s entry was lawful disposes of the complaint of illegality. Nothing which happened subsequently affects that conclusion. On the evidence, Officer Hall accompanied Ms Ristic throughout the inspection, as she had asked him to do. As she confirmed in her evidence, he made no ‘search’ of his own. The mere fact that Officer Hall made his own observations of the property in the course of accompanying Ms Ristic, including by taking photographs, could never have converted a lawful entry into a trespass. In making those observations, he acted opportunistically but not unlawfully.
To the extent that the applicants sought to rely, in the alternative, on Officer Hall’s failure to identify himself as a police officer, we respectfully agree with the judge that he was under no obligation to do so. On the judge’s unchallenged findings, it was Ms Ristic’s own idea to introduce Officer Hall (falsely) as a member of her staff. Again, Officer Hall acted opportunistically, but not unlawfully or even improperly, in taking advantage of that falsehood.
We agree with his Honour that this was conduct of the kind contemplated by the majority of the High Court in Ridgeway v The Queen, when their Honours said:
The effective investigation by police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity.[6]
[6](1995) 184 CLR 19, 37 (Mason CJ, Deane and Dawson JJ); [1995] HCA 66. See also Fleming v The Queen [2009] NSWCCA 233.
We referred earlier to a qualification on the applicants’ concession that Ms Ristic had a lawful right to enter the property. Advanced for the first time in oral argument in this Court, the contention was that, in contravention of s 86(3) of the RTA, the inspection had taken place three days before the expiry of ‘the first three months of the tenancy’ and therefore the inspection was unlawful. The inspection took place on 10 July 2018. Although the tenancy agreement was dated 10 April 2018, the tenancy was expressed to commence on 13 April 2018.
The matter proceeded before the judge on an assumption that the inspection by Ms Ristic was lawful, the argument being directed to the issue in relation to Officer Hall. Nothing was submitted before the judge about Ms Ristic herself not being permitted to inspect the property that day, whether because of s 86(3) of the RTA or otherwise. As we have said, this point was not raised in the proposed grounds of appeal or in the applicants’ written contentions.
Whatever the merits of the argument, it was raised far too late.[7] The fact that the point was not raised before the judge meant that the respondent was denied the opportunity to confer with Ms Ristic further about her dealings with the tenants and subtenants of the property. Evidence may have been available which would bear upon possible alternative bases for entry into and inspection of the property, given the circumstances, including the purported sublease and the cooperation of the subtenants in permitting entry.[8]
[7]See University of Wollongong v Metwally [No 2] [1985] HCA 28, [7] (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Coulton v Holcombe (1986) 162 CLR 1, 7–9 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33; Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); [1988] HCA 12.
[8]RTA s 85(a); s 86(1)(c) and (e).
It is necessary, finally, to consider what the position would have been if, contrary to our view, Officer Hall had been found to have entered the property as a trespasser. The insignificance of Officer Hall’s observations, as recorded in the impugned paragraph, was confirmed when senior counsel for the applicants conceded the accuracy of the following statement in the respondent’s written case:
The applicants had previously volunteered to Australian Border Force (ABF) officials that they resided at the Woodstock property and that Mr [Khalil] was involved in importing electronic equipment. [RR] had advised ABF officials that he had been staying at the Woodstock property. Thus, FA Hall’s attendance simply confirmed that (i) the applicants were residing at the Woodstock property; (ii) Mr [Khalil] was involved in importing car audio equipment; and (iii) [RR] was present at the property on that day.
The applicants maintain that it was, nevertheless, very significant that Officer Hall’s observations had confirmed the truth of that information. Even if that were so, the observations opened up no new line of enquiry and added nothing to the probative force of the supporting affidavit. Only a month later, Khalil was questioned by officials of the ABF, on the point of departure with Valdes for the United States. The answers which Khalil volunteered, all of which were set out in the affidavit, independently verified all of the aspects of his ‘business’ and his occupation of the property which were relevant to the warrant application. The affidavit also listed a number of items of relevance found in Khalil’s luggage during a lawful search on that occasion. It was not suggested that this subsequent evidence-gathering had occurred ‘in consequence of’ any of the observations that Officer Hall had made when he visited the property.
The removal of the word ‘covert’
Before we address the arguments advanced on this aspect of the case, it is convenient to set out the impugned paragraph in the terms in which it was originally drafted:
On 10 July 2018, police conducted a covert rental inspection with Ristic on the Woodstock address and spoke to [Khalil] and [Valdes]. Whilst inspecting a large green shed at the back of the residence, police observed [RR] asleep in the front seat of a red coloured Holden Barina bearing Victorian registration TRL 541 parked at that location. The large green shed was opened and inside police observed multiple pallets of what appeared to be speakers, car audio equipment and also cartons with ‘Toys R Us’ written on them. Another smaller storage area contained more pallets of the same. [Khalil] explained that he imported the items as part of his business and had [RR] there to guard the items when he and his wife were not home. He also stated that the property inside the large green shed was worth about one (1) million dollars.[9]
[9]Emphasis added.
The contention advanced by the applicants, both at first instance and in this Court, was that the word ‘covert’ had been deliberately and improperly removed so as to eliminate the risk of difficult questions being asked by the Tribunal about the nature of the inspection. According to the submission, the affidavit had been ‘sanitised’ because the AFP were conscious of both the impropriety/illegality of Officer Hall’s visit, and of the deception as to his identity in which he had been complicit, and feared that if those matters became known to the Tribunal the warrant application might fail.
His Honour’s reasons record in detail the sequence of events leading to the final form of the affidavit. It is unnecessary to repeat any of that detail. What emerged clearly was that the word ‘covert’ had been in the draft affidavit from the beginning, the paragraph being based on a case note prepared by Officer Hall in which he had used that word. Most importantly, the word was in the final draft which the deponent submitted for independent review. Evidently, none of the AFP officers who saw the affidavit up to that point felt any embarrassment in describing the inspection in that way or saw any reason to remove the word.
The evidence established that the word was only removed after an independent review of the draft affidavit by what is known as a ‘Special Projects Committee’ (‘the committee’). Such a review is apparently standard practice when warrants are applied for. The committee usually comprises at least two people of the rank of superintendent or higher, and each member of the committee independently reviews the draft affidavit.
On this occasion, the committee recommended a number of amendments to the draft affidavit, one of which was to remove the word ‘covert’. Detective Superintendent Hopkins was a member of the committee. At the relevant time, he was performing the role of AFP State Manager, Victoria and Tasmania, but had no direct involvement in the investigation. In a statement prepared for the purposes of the exclusion application, Mr Hopkins stated that, while he did not recall that particular amendment, it was ‘certainly something I would support as it would not be usual AFP practice to use the word “covert” in that context’. Mr Hopkins gave a full and cogent explanation of why that was so.
The judge concluded that the deponent had not deliberately deleted the word, had not had any discussions with the investigation team as to the deletion, and had no intent to ‘obfuscate the application to the [Tribunal]’. Nor, his Honour found, was there any conspiracy by the investigative team to mislead the Tribunal.
On the evidence, those findings were plainly correct. Indeed, no other conclusion was reasonably open. Nothing emerged as a result of the exhaustive investigation of these events to support the allegation of impropriety.
Even if, contrary to our view, it had been concluded that the word had been improperly removed in order to avoid questions being asked about the nature of Officer Hall’s visit, it would still have remained a near-impossible task to establish that the issue of the warrants (and the gathering of the surveillance evidence) occurred ‘in consequence’ of that (putative) impropriety. We think it most unlikely that the Tribunal would have been troubled by seeing the word ‘covert’ in an affidavit of this kind, even less so given that the paragraph had no independent probative significance. On that view, the removal of the word was immaterial to the success of the warrant application.
As counsel for the applicants pointed out, the trial judge took a more stringent view of the putative impropriety. In the course of argument, his Honour said to the prosecutor that, if he concluded that there had been ‘deliberate obfuscation’, he would regard it as ‘inappropriate in the public interest’ for the surveillance evidence to be admitted. We respectfully disagree. Whatever view had been taken of the motive behind the removal of the word, it would still have been necessary for the applicants to establish the causal nexus between the removal of the word and the issue of the warrants. Otherwise, as we pointed out earlier, s 138(1) of the Evidence Act was simply not engaged.
Leave to appeal must therefore be refused.
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