Leeds v Commissioner of Police
[2016] QDC 267
•28 October 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Leeds v Commissioner of Police [2016] QDC 267
PARTIES:
CHRISTOPHER DOUGLAS LEEDS
(appellant)
v
COMMISSIONER OF POLICE (respondent)
FILE NO/S:
CHAR-DIS-1/2016
DIVISION:
Criminal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Magistrates Court at Charleville
DELIVERED ON:
28 October 2016
DELIVERED AT:
Charleville
HEARING DATE:
24 October 2016
JUDGE:
Reid DCJ
ORDER:
1. Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST CONVICTION – SEARCH WARRANTS AND SEIZURE- Whether seizure of items outside the terms of a search warrant are therefore illegal- where warrant had been issued on reasonable suspicion of stealing and/or unlawful use of stock – where police located unsecured firearms on property during execution of warrant– where police located stock with ear tags without brands during execution of warrant – whether evidence should have been excluded at trial – whether Magistrate placed excessive weight on police evidence at trial
Police Powers and Responsibilities Act 2000 (Qld) s 196
Brands Act 1915 (Qld)
Weapons Act 1990 (Qld)
Justices Act 1886 (Qld) s 222
R v Smith [2016] QDC 62, considered
COUNSEL:
The appellant appeared on his own behalf
M.P. Le Grand for the respondent
SOLICITORS:
The appellant appeared on his own behalf
Department of Public Prosecutions (Queensland) for the respondent
Introduction
The appellant, who was at the trial and on appeal acting in person, was on 21 January 2016 convicted in the Magistrates Court at Charleville of two offences – one of failing to keep weapons in secure storage facilities contrary to the provisions of the Weapons Act 1990 (Qld), and one of using an ear mark upon three calves not in conjunction with a brand contrary to the provisions of the Brands Act 1915 (Qld). On 11 February 2016, he was fined $1,000 and $220 respectively for the two offences. No convictions were recorded. He appeals against the learned Magistrate’s determination of the matter.
The grounds of the appeal can effectively be summarised as follows:
(i) That a search warrant issued on 23 July 2014 and executed on 24 July at the appellant’s property near Wyandra in south west Queensland was invalid with the result that evidence on which the convictions were based was unlawfully obtained;
(ii) The learned Magistrate erred in finding that the appellant’s gun safe was found unlocked on 24 July and should instead have found that it was locked and opened by Sergeant Jackson during the search following the execution of the warrant;
(iii) The learned Magistrate gave excessive weight to an alleged admission with respect to the guns made by the appellant at the time he was served with the complaint in the matter; and
(iv) The learned Magistrate erred in finding beyond reasonable doubt that the three calves were unbranded.
The respondent opposes the appeal.
Nature of appeal
It is unnecessary to say much about the nature of the appeal other than, it being an appeal under s 222 of the Justices Act 1886 (Qld), it is a rehearing in the technical sense, being a review of the record of proceedings. The appellant needs to establish some legal, factual or discretionary error. I must also bear in mind the significant advantage of the Magistrate who conducted the trial in his assessment of issues of credit.
Circumstances
The appellant is the owner and occupier of a cattle grazing property, “Narran” near Wyandra. A dispute arose between he and the owner of an adjoining property, Mr John Burey. It seems clear that each believed the other had offended against him. Each made complaints to police. The appellant’s complaint was that Mr Burey trespassed on “Narran” on 16 June 2014 and also that he had stolen the appellant’s cattle. It was made to police on the following day.
The police allocated a number in relation to that complaint which was, it seems, earlier in time than the police number allocated to Mr Burey’s complaint against the appellant. Senior Constable Condon gave evidence consistent with his statement prepared in the matter that Mr Burey’s first complaint was however made sometime earlier. Senior Constable Condon apparently required further information from Mr Burey and consequently the formal allocation of a police number did not occur until that additional information had been provided. I shall refer to this aspect later because it was considered by the Magistrate, and evidence was given in relation to the issue.
It seems that officers of the stock squad, to whom the respective complaints were made, determined to investigate what they regarded as the first complaint in time – that of Mr Burey. Because of what they believed was a conflict in interest they referred the appellant’s complaint of trespass to the police at Wyandra.
The appellant submitted at trial and on appeal before me, that in fact the stock squad’s desire to first investigate Mr Burey’s complaint was otherwise motivated. He submitted that Mr Burey was friendly with officers of the stock squad and was used by them to undertake helicopter mustering from time to time. He submitted this tainted the police investigation.
I interpose that in my view little turns on this dispute about the timing of the respective complaints. Although I have no doubt that the appellant himself believes it is important. It was entirely peripheral to the issues the Magistrate had to determine.
Sergeant Warren Baker, who gave evidence, obtained a search warrant from the Magistrate in Charleville. I interpose that it was from a different Magistrate than the Magistrate who determined the matter. The warrant on its face was issued in relation to an allegation that the appellant stole cattle, the property of Mr Burey, and/or unlawfully used cattle, namely a number of cows and a bull.
The warrant set out the rights of police to search “Narran” station and identified “warrant evidence” to include not only cattle, but national livestock identification system tags that might be registered to Mr Burey, the appellant’s own ear tags, stock records and weigh-bills for cattle transferred off “Narran”, purchase receipts and financial records.
Pursuant to the warrant, police were thus entitled to enter “Narran” and to their search for those things.
Sergeant Baker when giving evidence said that the “reasonable suspicion” he had in relation to the appellant having unlawfully stolen and/or used Mr Burey’s cattle was based on Mr Burey’s complaint in that regard; Mr Burey’s statement that he had seen such cattle of his on “Narran”; that the appellant had refused Mr Burey’s request to enter “Narran” to locate such cattle; and Sergeant Baker’s own observation of cattle of Mr Burey’s on “Narran”.
Sergeant Baker was cross-examined at the trial by the appellant in relation to these matters. The learned Magistrate, in what I believe was a carefully crafted judgment, referred to that issue. He said at paragraph [14] of his judgment:
The defendant’s contention that the warrant was invalid was on two bases. Firstly, as no stolen cattle were found on the ‘Narran’ property as a result of the muster, the warrant was unlawful. Secondly, there was a number of alternatives to a search warrant open to the complainant to investigate, and if need be recover, his cattle from the defendant’s property such as to apply to the court for an order for a forced muster under chapter 22A of the Police Powers and Responsibilities Act 2000 (Qld).
At paragraph [33] of the learned Magistrate’s judgment he referred to the matters, some of which I earlier set out, being the basis of Sergeant Baker’s “reasonable suspicion” concerning the appellant’s possible theft and/or misuse of Mr Burey’s cattle. He also referred to Sergeant Baker’s evidence that a number of other complaints had been made at that time of cattle which had gone missing over a substantial period of time in the same area.
I shall refer to the Magistrate’s findings about this question of whether or not Sergeant Baker had “reasonable suspicion” in due course but interpose the arguments on which the appellant relied, as identified by the Magistrate in paragraph [14] of his judgment earlier set out are not issues relevant to the consideration of whether or not the warrant was valid. They are not relevant to the issue of whether in fact Sergeant Baker had the relevant “reasonable suspicion”.
Sergeant Baker, Sergeant Andrew Jackson and Sergeant Rodney Ferling all gave evidence about the circumstances of the execution of the search warrant on 24 July 2014. They spoke of the subsequent search of the homestead on “Narran” during which firearms were detected, giving rise to the firearm charges.
Before turning to their evidence it is in my view helpful to set out relevant provisions of s 196 of the Police Powers and Responsibilities Act 2000 (Qld). The section provides:
Power to seize evidence generally
(1) This section applies if a police officer lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence.
(2)The police officer may seize the thing, whether or not as evidence under a warrant and, if the police officer is acting under a warrant, whether or not the offence is one in relation to which the warrant is issued.
(3) Also, the police officer may photograph the thing seized or the place from which the thing was seized.
(4)The police officer may stay on the place and re-enter it for the time reasonably necessary to remove the thing from the place.
The effect of this section was recently considered by Smith DCJ in R v Smith [2016] QDC 62. His Honour pointed out, consistent with R v Rigney-Hopkins [2005] 154 A Crim R 433 at [29], that the section permitted the seizing of evidence outside the scope of a warrant. His Honour held that, independent of the section the common law permitted seizure of material outside of the bounds of a search warrant and said that this common law extension of the right of the search warrant has been expressly confirmed by the decisions in Reynolds v Commission of Police of Metropolis [1985] 1 QB 881, and by Burchett J in Parker v Churchill & Ors (1985) 9 FCR 316 at 329.
Consideration of the powers given to police when executing a search warrant under s 196 of the Police Powers and Responsibilities Act 2000 (Qld) is important in the circumstances of this case because of the submissions of the appellant made to me on the appeal and because of the nature of his defence before the learned Magistrate. The appellant, before me, asserted that police evidence at trial that the green gun safe was ajar was false. He submitted that subsequent police evidence of attending an upstairs office to obtain the keys to a gun safe, and their observation of a .410 shotgun leaning against a desk in the room should be rejected. So too did he submit evidence of later finding a .22 rifle leaning against a wall on the lower verandah of the homestead should be similarly rejected.
During the course of submissions before me, some time was devoted to listening to police recordings both of the execution of the warrant and of the subsequent search during which the firearms were detected and also of a recording of the service of the complaint on the appellant sometime later. That latter recording is of importance because of statements of the appellant on which the learned Magistrate relied, holding they amounted to an admission against interest by the appellant.
Much of the appellant’s conduct at the trial and indeed much of his submissions before me were devoted to his view that the gun safe, which he said police described as ajar, was in fact locked.
Two things need to be borne in mind in considering that issue.
The first concerns the circumstances in which the firearms the police said were detected early in the search were in fact detected. The police evidence at trial was that the gun safe was located in the room which adjoined the office where police were searching for financial and other records. Sergeant Jackson said in evidence that he looked through a glass panel in a door in the downstairs study. That glass panel is shown in a photographic exhibit. He saw a green safe through the glass. It is visible in the photo. He observed, he said, that the handle was turned, facing 11 o’clock, and that the cupboard appeared to be slightly ajar. He went into the room and opened the safe finding five firearms inside.
As a result of telling Sergeant Baker of that fact he said Sergeant Baker went to the police motor vehicle and obtained a camera, subsequently taking a number of photographs, some of which were tendered in evidence before the learned Magistrate.
Sergeant Jackson said he asked Jason Williams, who was the caretaker at “Narran” during a temporary absence of the appellant on holidays, if he knew where the keys to the other gun safe were. He said he understood there was another safe as 13 weapons were registered to the appellant at the property and only five were located in the gun safe which he said he opened. It was while he and Mr Williams went upstairs to obtain those keys that he saw the .410 shotgun leaning against the bench in the upstairs room to which I have referred and, later, the .22 rifle which he said was detected leaning against a wall of the lower verandah.
The appellant both at trial and before me vehemently denied the green gun safe was either ajar or unlocked. He says he always kept it locked.
The second thing to be understood in relation to the issue is that the learned Magistrate in his judgment was not in fact satisfied to the requisite standard that the gun safe in which the five firearms were located was either ajar on unlocked. His Honour said that he had the opportunity of listening carefully to and observing each witness. He said:
[133] …The court was persuaded, in respect of the witnesses for the prosecution generally, that they gave evidence that was generally consistent, credible and worthy of belief. Detective Sergeant Warren Baker’s evidence was unequivocal, detailed, thorough, and exhaustive. With the exception of the evidence concerning whether the green gun safe door was closed but unlocked or ajar upon detection, his evidence seemed to be accurate and inherently probable. The court was of the view that his evidence was largely consistent with all other witnesses regarding the disputed elements of the charges. … aside from the issue of the state of the green safe upon detection, the Court was of the view that the weight to be accorded to his evidence was not substantially diminished by what was an exhaustive, prolonged and protracted cross examination. With the exception of his evidence concerning the state of green gun safe, the Court accepts Detective Sergeant Baker’s evidence as reliable and acceptable.
…
[135] Detective Sergeant Scott Jackson[‘s] evidence was consistent with the other prosecution witnesses called concerning the disputed elements of the charges, his memory and recall of the events concerning the disputed elements of the charges did not seem as clear and sharp as that of Detective Sergeant Baker… His evidence whilst given in a candid and forthright way, was somewhat less detailed and more imprecise than that of Detective Sergeant Baker … This witness’s evidence concerning the state of the green gun safe on detection was not as impressive in both examination in chief and cross examination as the rest of his evidence. With the exception of this specific issue, the weight to be accorded to this witness’s evidence was not diminished by cross examination. Aside from the green gun safe evidence, the court accepts this witness’s evidence.
[136] The most impressive of all of the witnesses …was … Senior Constable Paul Condon. This witness’s evidence was impressive because of the way he was able to synthesize the disparate events that led up to the issuing and execution of the search warrant on the 24th July 2014 and subsequent days into a coherent narrative… His evidence was given in a very open, candid, frank and unequivocal manner. The Court found his evidence to be credible, informative and detailed and consistent with other prosecution witnesses. The weight to be accorded to his evidence was, if anything, strengthened by cross examination because of his ready, informative and helpful responses to the Defence. The court unreservedly accepts this witness’s evidence as truthful and completely reliable.
…
[147] … The weight to be accorded to Mr. Leed’s evidence was further eroded by his assertions in evidence in chief and his answers in cross examination concerning the detection of a weapon on a verandah of the low set building and in an upstairs area of the two story building of the Narran Homestead complex… Mr. Leeds denied leaving weapons unsecured at the Narran Homestead in the manner described by the prosecution witnesses Baker and Jackson. Yet under cross examination at about line 15 on Page 65 of the transcript of the same day he admitted that during part of the recorded conversation with Baker on the 20th November 2014 he stated during that conversation that rifles were left out due to a feral cat problem so that they were easily accessible for his caretaker.
[148] Mr. Leed’s efforts, on the first day of the trial at page 41 … of the transcript … to explain his recorded admissions concerning the unsecured weapons found by the police that he was:
“a bit confused at the time and a lot of it was hearsay. I was trying to find out how my safe got open (sic). So I was trying to lead people who I was talking to give me some more information on what it was...”
was suggestive of recent invention. … It seemed to be an attempt to fashion a plausible account for what was, in the first instance, an instinctive reaction to give a candid, honest and truthful explanation for why the firearms were found outside the safes.
[149] It is for these reasons that the Court does not accept Mr. Leed’s evidence where it conflicts with that of the prosecution evidence.
I have set out those passages in detail because in my view they illustrate the reasons why the Magistrate convicted the appellant of the offence against the Weapons Act, but only in relation to the .410 shotgun and .22 rifle found, which he found were entirely unsecured as I have described.
Because of the appellant’s ground of appeal concerning the validity of the search warrant and because of the learned Magistrate’s reliance on the evidence of Senior Constable Condon in relation to that warrant, I turn to that evidence.
Senior Constable Condon said (T2-96, L 40 ff) that his attending the property to effect the muster on 26 July 2014 “related… to a report that I’d taken earlier in the month from… John Burey”. He indicated that Mr Burey had said some of his cattle had walked onto “Narran”, apparently due to a problem with the grid caused by local authority workers mistakenly filling it in, and that Mr Burey had attempted to organise a muster to try to get them all back but had not been able to do so because of the appellant’s refusal to allow that to occur. He also complained of earlier instances of his cattle straying onto “Narran” but being denied access to get them, despite on many occasions requesting permission to do so.
Constable Condon said that Mr Burey had told him that he therefore believed “his cattle had been stolen or were being deliberately kept on “Narran” to be unlawfully used to breed from”. He also said that in addition, there were other aspects of the application for a warrant that Detective Sergeant Baker was aware of that he added onto the warrant.
In cross-examination, Constable Condon said that although Mr Burey’s complaint was not formally logged until after the appellant’s own complaint against Mr Burey of 17 June 2014, he, Constable Condon, had a number of phone conversations with Mr Burey about his complaint over several weeks to months. He said Mr Burey kept providing further information which eventually led to the “official report being put into the system”. It included photos, reportedly of Mr Burey’s cattle taken from the public road through “Narran”, and reconciliations of his stock numbers.
The importance of Constable Condon’s evidence of course is that whilst the appellant’s complaint of trespass against Mr Burey was logged onto the system prior to Mr Burey’s own complaint being so logged on, Mr Burey’s oral complaint was in fact earlier in time.
Magistrate’s reasons
I have already referred to some of the learned Magistrate’s judgment in explaining the background to the matter. So far as relevant to the grounds of appeal the learned Magistrate:
(i) Determined issues of the credibility and reliability of the witness, generally accepting the police witnesses;
(ii) Determined that the search warrant was valid, and in reliance on the evidence in particular of Sergeant Baker and Constable Condon;
(iii) Considered the evidence about the finding of the weapons by police;
(iv) Considered the statement of the appellant to police concerning his guns made at the time the appellant was served with the complaint; and
(v) Accepted the evidence of the police witnesses that three calves with ear tags of the appellant were unbranded.
I shall briefly refer to his findings about those matters other than in relation to issues of credibility which I have already addressed.
In relation to the search warrant, His Honour correctly identified that the central issue concerned the concept of Sergeant Baker’s reasonable suspicion. He noted that the appellant did not adduce any evidence about that issue although as I have noted, he questioned police and in particular Sergeant Baker who obtained the warrant from a Magistrate. The learned Magistrate dealt with those issues on which Sergeant Baker had relied to found his suspicion, and concluded at paragraph [173]:
From this information it seems that it would be open to the issuer of the search warrant to conclude that there was evidence that the person or persons in control of the Narran property was deliberately withholding permission for Burey to enter and retrieve what Burey complained was his property, namely his cattle. As a result, the person or persons in effective control of Narran would take the benefit of the withheld property. Therefore it would be logical that the purpose of the search warrant was to enter upon Narran to search for those cattle that Burey complained was his, and to seize them for the purpose of evidence of commission of the offences nominated in the warrant.
As is clear, despite the appellants vigorous urging before me to the contrary, the learned Magistrate did not convict the appellant in relation to guns found in the green gun safe. He did not find that the appellant’s gun safe was unlocked. He expressly found the police evidence did not persuade him to the requisite standard that it was.
The appellant’s eventual submission before me was that in such circumstances the learned Magistrate ought to have rejected the whole of the police evidence. His reasons for not doing so are set out in the passages I have earlier set out. In addition, His Honour relied specifically on the admission made by the appellant when served with the complaint, dealt with at paragraphs [147] and [148] of his judgment set out earlier herein.
I myself listened to the tape of that conversation. Having done so, and so being able to understand the relevant background circumstances, I must say I concur entirely with His Honour’s approach. The admission was, it seems to me, a clear and unequivocal admission that the appellant had left the two guns out of the gun safe so the caretaker, Mr Williams, could deal with any feral cats as expeditiously as possible if he saw them.
In such circumstances it is difficult to accept the appellant’s submission to the contrary as His Honour found. Like the learned Magistrate, I think that admission by the appellant is very cogent evidence of his guilt of the Weapons Act 1990 (Qld) offences.
I can see no possible basis for any assertion that the learned Magistrate gave excessive weight to that clear and unequivocal admission. The circumstances in which it was made, after Sergeant Baker had specifically warned the appellant that any admission he made could be used in evidence, the obvious utility in having a gun available for the stated purpose, and the improbability that the appellant made it because of confusion or to try to lead police on to give him further information as he asserted in evidence all cause me to conclude there is no merit whatsoever in the appeal against his conviction of the weapons offence.
The final ground of appeal concerned the learned Magistrate’s acceptance of the evidence of police witnesses that three calves had ear tags belonging to the appellant, but were unbranded. In so concluding, His Honour considered the consistency of the evidence of Sergeant Baker, Constable Condon and Sergeant Ferling in respect of the lack of a brand, as well as photographic evidence. In the appellant’s contentions before me he said the police ought to have used clippers to clearly reveal the absence of a brand. I interpose that since their evidence was that there was in fact no brand that might have involved significantly more clipping than might have been involved in clipping to reveal a brand that was present. Be that as it may, the learned Magistrate carefully considered all of the evidence. He was entitled to accept the unequivocal evidence of the police that there was no brand.
Evidence called by the appellant from a neighbour, Mr Robert Quinlan, of the possibility of failing to brand the young calf at the same time as they were earmarked, set out at paragraph [111] of His Honour’s judgment, seemed to me to fortify the learned Magistrate’s findings that the three calves were, in this matter, unbranded.
In my view there can be no merit whatsoever in an assertion, as made before me, that the offence was a trivial one and therefore ought not have been prosecuted. In my view that is a submission relevant to sentence, but does not impact upon the learned Magistrate’s findings in respect of the issue.
Conclusion
In the circumstances the appellant has failed to demonstrate any error in his Honour’s judgment. His findings of fact were amply supported by the evidence which His Honour carefully analysed. There is nothing which could justify me in interfering with those findings.
There is nothing to enable me to conclude the appellant should succeed. The appeal is dismissed.
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