Maher v Maynard

[1991] TASSC 89

78/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Maher v  Maynard [1991] TASSC 89; A78/1991

PARTIES:  MAHER
  v
  MAYNARD

FILE NO/S:  LCA 117/1990
DELIVERED ON:  2 October 1991
JUDGMENT OF:  Crawford J

Judgment Number:  A78/1991
Number of paragraphs:  32

Serial No 78/1991
List "A"
File No LCA 117/1990

MAHER v MAYNARD

REASONS FOR JUDGMENT  CRAWFORD J

2 October 1991

1. The respondent was charged in a Court of Petty Sessions at Hobart with three offences which were:

1Wilfully obstructing a police officer contrary to the Police Offences Act 1935 s34B(1)(a)(i). Particulars of the charge were that on 16 October 1989 at Moonah, she wilfully obstructed David John Innes, a police officer in the execution of his duty, by placing herself between the officer and a bed while he was effecting a search.

2Assaulting a police officer contrary to the same provision of the Act. Particulars of the charge were that she assaulted police officer Innes, in the execution of his duty, by throwing a plastic waste bin and striking him on the back.

3Possession of stolen property contrary to the Police Offences Act 1935 s39. Particulars were that on 16 October 1989 at Moonah, she was found in possession of three CB radios and one graphic equaliser reasonably supposed to have been stolen or unlawfully obtained without being able to give a satisfactory account of her possession thereof to the court before which she was charged.

1. Following the close of the prosecution case, the magistrate upheld a submission of no case to answer and dismissed all three charges. The evidence was capable of establishing inter alia the following facts.

1. Detectives First Class Constable Innes and Constable Pearce went to a residence at 30 Central Avenue, Moonah. Detective Innes spoke to the respondent and asked if he could speak to her inside the residence. There was no evidence about her response but it could be inferred that she agreed, or at least indicated no dissent, and the three of them moved into the kitchen. Having introduced himself, Detective Innes informed the respondent that it was his belief that there were stolen CB radios on the premises and he indicated his belief that they were in her bedroom. He asked her if Jason Maynard was at home and she confirmed that he was.

1. The respondent told the officer that there were no CB radios in her bedroom as she had cleaned it two days before. At this time, Jason Maynard entered the kitchen and Detective Innes introduced himself and Detective Pearce to him. Detective Innes had a brief conversation with Jason Maynard in the presence of the respondent and accompanied him to a bedroom at the end of a passageway, where he was confronted by a female and a male, both of whom demanded to see a search warrant. This occurred in the presence of the respondent who was in the passageway. Detective Innes gave evidence: "I produced my general search warrant and allowed both those persons to read it. Likewise, I showed the document to this defendant." The two police officers made a search of the bedroom occupied by Jason Maynard and another male who introduced himself as Bernie Boy James. The respondent was present at the door of that room for some minutes before she disappeared from Detective Innes' sight.

1. At the conclusion of the search of Jason Maynard's room, Detective Innes ascertained that the respondent was in a bedroom across the hallway. She came to the doorway and the officer told her that he wanted to search her bedroom and asked if that room was her bedroom. She said: "This is mine – there's nothing in there – just have a look and go".

1. The two police officers then entered the respondent's bedroom and in the course of searching it the respondent obstructed Detective Innes in his search. The detective told her that if she persisted with that behaviour she would be charged with obstruction. She continued to obstruct him but eventually he was able to search the bedding and between two mattresses fitted to the bed he found a multi–coloured bag containing a number of CB radios. The respondent claimed that they belonged to her and told the officer to leave them alone. He said that he believed that they were stolen and she insisted that they were hers and told him to get out. She declined to say where they had come from. Detective Innes bent down to place the bag containing the radios on the floor and at that time the respondent picked up a rubbish bin and threw it at him, striking him on the back. Shortly afterwards, the police officers left the residence after informing the respondent that she would be charged with obstruction, assault and unlawful possession.

1. As already mentioned, Detective Innes gave evidence that he had a general search warrant. It was not produced or put in evidence. In cross–examination he said he could not recall the date upon which it was issued to him. He thought that it expired around about the fourteenth of a month. He did not have it any more "because, as you know, they are recalled and renewed every six months". He did not make any comment to his senior officers when making his report that the warrant might in fact be required in court for the proceedings.

1. The learned magistrate held that it was open on the evidence to find that Detective Innes actually and reasonably believed certain information he had received prior to going to the house and on finding the goods in the respondent's bedroom he reasonably supposed them to be stolen. The evidence of the detective was that Sergeant Rezek had informed him at 8.30am, on the day in question that he had received information from a reliable source, an informant, that stolen radios were in the respondent's bedroom, and that on the previous evening a CB radio had been stolen from a truck in the same street and only one or two doors from that address. Detective Innes had in his possession a crime report in that regard. He also had a number of crime briefs concerning a number of burglaries, the majority of which occurred in that general area and part of the property stolen had included CB radios. He was aware that Jason Maynard had a propensity to remove CB radios from motor vehicles and that he lived at the respondent's address. On entering the premises, and prior to using the warrant, he found Jason Maynard inside. The warrant was then produced and the search commenced.

THE FAILURE TO TENDER THE SEARCH WARRANT:

1. One ground of the application to review is that the learned magistrate erred in ruling that the respondent had no case to answer on the first two charges, that ruling being based on the failure by the prosecution to tender in evidence the general search warrant about which only oral evidence was given.

1. Provision for the issue by the Commissioner of Police of general warrants is made by the Police Offences Act 1935 s60:

"60–(1) It shall be lawful for the Commissioner to issue to any police officer a general warrant, in the appropriate form set forth in Schedule II, authorizing such officer to search for stolen property.

(2)       Every such warrant shall be signed by the Commissioner personally, and shall remain in force, unless sooner revoked, for 6 months from the date thereof, or for such shorter period, if any, as may be specified therein, and shall authorize the officer therein named to exercise the powers therein set forth.

(3)       The Commissioner, at any time, may revoke any general warrant issued by him."

Schedule II, Form VII contains the form of a general warrant. Omitting some purely formal parts, its form is:

"WARRANT

You are hereby authorized at any time in the day or night, with proper and necessary assistance, to enter and search any house, building, premises, or place where you have reasonable grounds for believing that any stolen goods are, and to break open such house, building, premises, or place, and to break open and search any cupboards, drawers, chests, trunks, boxers, or packages, or other things, whether fixtures or not, in which you have reasonable grounds for believing that there are any goods obtained under such circumstances as constitute an offence under the Police Offences Act 1935, or a crime under the Criminal Code.

This warrant shall remain in force for 6 months from the date hereof [or, if a shorter period, state how long].

Dated this day of 19 .

Commissioner of Police".

1. There was evidence upon which it could have been found that Detective Innes had the necessary reasonable grounds for belief which would have been required by a general warrant in such a form. But the learned magistrate considered that the warrant should have been tendered as evidence. He said inter alia:

"It seems to me that in order to establish the lawfulness of the Constable's entry into the defendant's premises in this case the prosecution should put into evidence the document which it claims to have authorised it, so that its essential validity may be scrutinized. The warrant, although not called for, was clearly put in issue by defendant's counsel and secondary evidence of its contents is therefore probably not admissible; even if I am wrong about that, there is nowhere in evidence any information about the document's form, date, currency or its signature by the Commissioner. It was submitted for the prosecution that it was obvious that Constable Innes believed he had a valid warrant on 16 October 1989, and that is no doubt so but it appears to me to be wholly insufficient to prove the warrant....."

1. Subsequently, the prosecutor sought leave to re–open the case for the prosecution and recall Detective Innes for the purpose of formally tendering the warrant as evidence. After argument the learned magistrate refused such leave. He then ordered that the complaint be dismissed upon the basis that there was no case for the defendant to answer.

1. On the hearing of the first two charges it was necessary for the prosecution to call evidence establishing that not only did the respondent wilfully obstruct and assault Detective Innes and that the detective was a police officer, but also that he was at the relevant time acting in the execution of his duty. In so far as the prosecution case may have depended on him being authorised to enter or search pursuant to a general warrant, it was necessary for there to be sufficient evidence of the existence of the warrant and of what it authorised. In Corbett v R (1932) 47 CLR 317 at p327 Gavan Duffy CJ, Rich and Dixon JJ, said:

"The cases decided upon enactments making penal the obstruction or resistance to an officer in the course of the execution of his duty show that, when the alleged duty arises from a warrant, the charge cannot be sustained unless the warrant did operate in law as an authority to the officer, and, unless when he was resisted, he was in the course of executing that authority according to law (R v Sanders (1867) LR 1 CCR 75); Codd v Cabe (1876) 1 Ex D 352); R v Cumpton (1880) 5 QBD 341); R v Levesque (1918) 42 Dom LR 120; 45 NBR 522)."

1. In Noordhof v Bartlett (1986) 69 ALR 323 a police officer was assaulted allegedly after the appellant had been arrested pursuant to warrants issued for the non–payment of fines. The warrants were not in evidence at the hearing of the charge. On appeal following conviction, all three members of the Federal Court agreed that the appeal should be allowed because of the failure to put the warrants in evidence. At p326, Northrop J said that it would have been expected that the warrants would have been proved and tendered in evidence as part of the prosecution case and added:

"There was no evidence to show that the warrants could not be produced. There was no foundation established for the admission of secondary evidence to prove the contents of the warrants or any of them. There is no evidence to show that a clerk of a court or a Justice of the Peace of a State had signed any warrant of apprehension relating to the appellant. There was no evidence to prove that at the time the respondent claims he was assaulted, he was 'in the execution of his duty'."

After referring to the statement of the nature of a warrant given in Corbett v R (supra) by Gavan Duffy CJ, Rich and Dixon JJ at p333 to the effect that a warrant is a precept under the hand and seal or hand of a person vested with authority empowering another or others to do an act or perform a function, Northrop J continued at pp326–327:

"The authority to issue a warrant is often contained in legislation, see for example, s 10 of the Crimes Act 1914(Cth). A warrant issued under that section is commonly called a search warrant. Legal questions relating to the execution of warrants may arise in many different ways. A question may arise as to whether the warrant relied upon was in fact authorised by the legislation. A question may arise as to whether the warrant was issued validly. A question may arise as to the proper construction of the terms of the warrant. A question may arise as to whether the person executing the warrant was acting outside the powers conferred by the warrant. Many other questions may arise. A reference to just a few of the many cases dealing with warrants illustrates the wide range of questions that do arise: see for example Corbett v R. supra;R v Tillett;Ex parte Newton (1969) 14 FLR 101; Crowley v Murphy (1981) 34 ALR 496; 52 FLR 123; Baker v Campbell (1983) 153 CLR 52; 49 ALR 385; Arno v Forsyth (1986) 65 ALR 125 and Parker v Churchill (1986) 65 ALR 107. All these cases indicate that whenever a court is hearing a matter involving a warrant, it is imperative that careful consideration be given to the provisions, statutory or otherwise, which authorise the issuing of a warrant, the terms of the warrant and the facts surrounding the execution of the warrant. It is equally imperative that counsel appearing in cases of this kind give careful consideration to these matters. From their very nature, warrants authorise acts to be done which otherwise are not authorised. Warrants must be scrutinised very carefully."

Gallop J, at p335, referred to "the absence of proof of the original warrants, an essential fact to be proved as evidence of the ingredient of the offence that the police officer was in the execution of his duty when he was assaulted...."

1. In so far as the prosecution sought to rely on the provisions contained in the general warrant, it should have been produced. The "best evidence" rule applies to a case such as this. There was no evidence that the original warrant could not be found after due search, so as to enable secondary evidence of its contents to be admitted into evidence. Accordingly, in so far as the prosecution case depended for its success on the existence and contents of the warrant, the evidence was lacking in a material respect and there was insufficient evidence upon which the magistrate could have been satisfied beyond reasonable doubt that Detective Innes was acting in the execution of his duty pursuant to some authority given to him by the warrant.

1. However, counsel for the applicant submitted that failure to correctly prove the warrant did not destroy the prosecution case. He argued that there was evidence that the detective was acting in the execution of his duty for he was in the house in the respondent's bedroom with her licence and, it was argued, that licence had not been withdrawn when the obstruction and the assault occurred.

1. There was sufficient evidence upon which the learned magistrate could find that the police officers entered the house with the respondent's permission. This was conceded to the magistrate by the respondent's counsel. But there was clearly no evidence upon which the magistrate could be satisfied that the search of the respondent's bedroom was conducted with her express or implied licence. In fact, the evidence established the contrary. It was to the following effect. Having produced the warrant to two other persons in the house, it was then shown to the respondent. Shortly afterwards, the officers entered her bedroom and commenced to search there. When Detective Innes moved to the side of the bed and began to look through clothing, the respondent told him not to touch her bedclothes and removed from his hand a cardigan he had picked up. When he again went to remove some clothing from the top of the bed, she pushed in alongside him and was holding the clothing down as he tried to lift it. He asked her to move and informed her that if she persisted with her behaviour she would be charged with obstruction. It is obvious that the respondent was not consenting to the search, particularly of the bed and in so far as the prosecution case might depend for proof that the officer was acting in the execution of his duty on the licence of the respondent, the evidence was clearly insufficient. If the respondent obstructed the officer in his search then clearly she was not consenting to the search. When the alleged assault subsequently occurred, the officer was not acting in the execution of his duty, in so far as proof of that depended on the consent of the respondent to what he was doing, for he was dealing with items he had discovered in the course of his search which had been conducted notwithstanding her clear opposition.

1. It is therefore without doubt that the lawfulness of the search of the respondent's bedroom could only be established by proving that it was conducted pursuant to powers granted by the general warrant referred to in evidence.

1. I mention that the learned magistrate was in error when he ruled that in order to establish the lawfulness of the entry into the defendant's premises the search warrant should have been in evidence. There was, I have pointed out, sufficient evidence to establish that the entry was with the respondent's permission and therefore lawful.

THE DISCRETION TO PERMIT RE–OPENING OF THE PROSECUTION CASE:

1. The next ground of the application with which I will deal was that the learned magistrate failed to properly exercise his discretion to permit the prosecutor to re–open his case for the purpose of tendering the warrant as evidence. Before argument about this was addressed to him, the magistrate indicated that the submission of no case to answer would succeed unless he allowed the prosecution case to be re–opened.

1. In the course of making the application to re–open his case, the prosecutor said that the prosecution "was caught by surprise in the fact that the constable didn't have the warrant with him or was not sufficiently aware of the content of the warrant to give the date that it expired or the date that it was issued, so the prosecution at least was caught by surprise and when we tried to obtain the warrant in the court adjournment, the luncheon adjournment, we were unable to obtain that warrant to get it before the Court before the close of the prosecution case". The first morning of the hearing had concluded in the course of the cross–examination of the first prosecution witness, Detective Innes. After the luncheon adjournment that cross–examination was completed and evidence was given by the two remaining prosecution witnesses, one of whom was Detective Pearce. The prosecutor then announced that the prosecution case had closed and the hearing was adjourned to the following morning, when the submission of no case to answer was made and argued and the hearing was further adjourned. It was only after the magistrate had delivered his ruling and further time was given to the parties to consider it that the application to re–open was made.

1. The learned magistrate refused the application. He said:

"This, after all, was a search warrant case. The officer went to the premises knowing that he needed a warrant to get in, but not apparently did he advert to the fact that he should, would be required to produce that authority at the hearing of the complaint. The judgment to which I referred this morning of George v Rocket at page 5 refers to the jealousy with which the common law has protected the rights invaded by search warrants and it refers also on that page to the strict compliance which the law demands for their proof and execution. It should have been known in anticipation of this case that the warrant had to be proved, in my opinion, and because it was not proved, if the matter stopped there, the defendant's submission of no case would have been upheld on the 1st of November, but to give the parties an opportunity to consider the consequences of the course I then indicated the matter was adjourned until today and the prosecution, not unexpectedly, does seek to make good what had previously been admitted, omitted. As Mr Justice Zelling said in the quotation read by Mr Mansell from Laydon's case it seeks to have a second bite of the cherry and the cherry which it grabs for is a very substantial one, it's fundamental to the prosecution's case, it's the warrant itself. I don't think it ought to be allowed, and in the exercise of my discretion I would not permit the prosecution to reopen."

1. The learned magistrate had a discretion whether to allow the prosecution to reopen its case. He was bound to exercise his discretion judicially, that is to say, reasonably and in accordance with the relevant rules of law and practice and not in accordance with personal opinion, whim or fancy. Allen v Dornauf's Pty Ltd 10/1973 at 13. When a court reviews the exercise of a discretion by an inferior court, the principles which are to be applied are to be found in House v The King (1936) 55 CLR 499 at pp504 and 505, Rodgers v Rodgers (1964) 114 CLR 608 at pp619–620 and Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at p627. In the last mentioned case Kitto J, stated the principles at p627 in the following terms:

"I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp532–534, to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499, at pp 504–505."

1. Reference was made in the course of argument to the judgments in Harrison v Flaxmill Road Foodland Pty Ltd (1979) 22 SASR 385, McDonald v Camerotto (1984) 36 SASR 66, Cole v Dick [1979] Tas R 14 and Allen v Dornauf's Pty Ltd (supra). Many cases dealing with the discretion to allow a prosecutor to re–open his case were reviewed in them. Although guidance can be obtained from the decisions of other courts, ultimately of course the decision must depend on the circumstances of the particular case. In this case, arguments tending to support the exercise of the discretion in favour of the prosecution include:

1In the course of the prosecution evidence there was no objection from the defendant's counsel to the police giving evidence about the warrant without its production. In fact counsel for the defendant cross–examined Detective Innes to a limited extent concerning the contents of the warrant.

2The existence of the warrant was not put in issue by the defendant's counsel when he cross–examined the two police officers. This is not to say of course that the existence of the warrant was not an issue in the case in so far as it needed to be proved, together with its contents, for the prosecution case to succeed.

3There is no suggestion that there was a conscious decision on the part of the prosecution or the police officers not to tender the warrant as part of the prosecution case. The prosecutor realized that the existence of the warrant should form part of the evidence he should call and accordingly evidence was given of it. What was not realized by the prosecutor and his police witnesses was that the best evidence rule applied and that the document itself should have been tendered. Indeed, a reading of the transcript of the proceedings in the Court of Petty Sessions makes it appear that the real significance of the failure to tender it was not apparent to defence counsel either and that it was the magistrate who raised the point that failure to tender it was fatal to the prosecution case.

4Arguably, the evidence is not likely to be seriously challenged. Further, there is every likelihood that the document will prove to be in the form prescribed by the Police Offences Act 1935. In this regard I do not seek to distinguish between whether the evidence can be described as being "formal" or a matter of "substance", being mindful of the comments in this regard by Nettlefold J, in Allen v Dornauf's Pty Ltd (supra) at pp12–13.

5The application to re–open the prosecution case was made at a stage when the defendant had not been called upon to present his defence. There will not be involved a splitting of the prosecution case by the defence case.

6There will be no prejudice to the defendant.

7As a result of brief cross–examination concerning the warrant by defence counsel, the prosecution did endeavour to locate the warrant during the luncheon adjournment on the first day of the case. If that search had been successful there was every likelihood that the application to tender the document would have been made while the first witness, Detective Innes, was still in the witness box. An application to tender the document at that stage was likely to have been successful.

8Arguably, it is contrary to the public interest that a defendant should be acquitted because the prosecution has inadvertently omitted to tender a document which is likely to have been in a prescribed form. Support for this is to be found in the statement by Wolff CJ in Williams v Berini [1960] WAR 21 at 22:

"… I think myself that the principle is that if material evidence is inadvertently omitted, (and there is any amount of authority to support it, see Hargreaves v Hilliam (1894) 58 JP 655; Duffin v Markham (1919) 88 LJKB 581), the court should, as I have indicated, permit that evidence to be called so as to supplement a case which otherwise might be imperfect and so act in the cause of justice, and not to bring about an injustice by dismissing the complaint".

1. Arguments tending to support the refusal to allow the prosecution to re–open its case include the following:

1It was an essential part of the prosecution case to be proved that the officers were acting in the lawful execution of their duty. The prosecution should, with reasonable diligence and competence, have realized that proof of the warrant by tendering it was essential to its case.

2It may not simply be a formality involved in the tendering of the document. It will need to be examined by defence counsel and questions may well arise as to whether it was properly issued and current, and authority for Detective Innes to conduct the search.

3The prosecution had notice by virtue of cross–examination of Detective Innes that at least some of the contents of the warrant had been questioned. An adjournment could have been sought at an early stage to enable the document to be produced. Certainly, the prosecutor was aware by the luncheon adjournment on the first day that it would be at least desirable to have the document brought to court but seemingly, after it could not be located during that adjournment, no further attempt was made to tender the document until much later when it was obvious that the case was lost unless the magistrate allowed the case to be re–opened.

4The usual rule of procedure is that the prosecution case must be presented in its entirety before the case is closed. As was said by Lord Widgery CJ in Phelan v Back [1972] 1 All ER 901 at 902:

"There are, of course, rules of procedure governing every court. Those rules derive from law or from convention, and there is no doubt that as a general principle such rules must be observed. That means that if the rules are not observed, or if any departure from them is to take place, that departure must be justified according to the circumstances of the particular case. We must not allow the rules to be our masters, they must remain our servants, and the authorities show a wide range of circumstances in which prosecution witnesses can be called or recalled after the close of the prosecution case. The normal rule, of course, must be that they will be called before the close of the prosecution case, but there are exceptions."

1. The conclusion I have come to is with respect that the learned magistrate was in error and that he should have allowed the prosecution case to be re–opened and the warrant to be tendered. In this regard I am particularly influenced by points 3, 4, 5, 6 and 8 listed above as supporting the argument for re–opening. My conclusion is supported by the decisions of courts in many cases, particularly those reviewed in cases to which I have referred. In particular I find support in the statements of the following judges: Jeffrey J in Henning v Lynch [1974] 2 NSWLR 254 at 258–9; Cave J in Hargreaves v Hilliam (1894) 58 JP 655; Wells J in Reid v Kerr (1974) 9 SASR 367 at 376; Wolff CJ in Williams v Berini [1960] WAR 21 at 22 (in the passage I have cited). There are many other judicial statements to the same effect.

1. Accordingly, the application will succeed and the orders dismissing the charges will be set aside. The case will be remitted to the learned magistrate with the direction that he should permit the prosecution to re–open its case for the purpose of tendering the warrant in evidence. The case will proceed from there.

THE DISCRETION TO EXCLUDE EVIDENCE UNLAWFULLY OBTAINED:

1. It is unnecessary for me to deal with the remaining grounds of the application. However, because it appears to me that the learned magistrate misunderstood the circumstances in which a discretion may arise to exclude evidence which may have been unlawfully obtained, I propose to deal with one further ground. It is in the following terms.

"That the Learned Magistrate erred in law in excluding from evidence property seized by David John Innes on the 16th day of October, 1989 from a residence at 30 Central Avenue, Moonah or alternatively erred in law in failing to attach any evidentiary significance to the aforesaid property."

1. This ground relates to the third charge. It was the case for the prosecution that the CB radios found between two mattresses in the respondent's bedroom were in her possession and reasonably supposed to have been stolen or unlawfully obtained. If the prosecution established these matters then the onus shifted to the respondent to give a satisfactory account of her possession to the court. The learned magistrate found no case to answer and dismissed that charge expressing his reasons briefly, immediately after he had refused leave to the prosecution to re–open its case, in the following terms:

"As far as receiving evidence of the property seized, if that's a separate matter, as I think it is, it's my opinion that all indications weigh in one direction on the Bunning v Cross principle. As I say, this is a warrant case, it need to be proved for the property seized to have been lawfully seized and for the property, for the officer lawfully to have been there. For all those reasons, I confirm the indication I gave on the 1st of November that I uphold the defendant's submission of no case to answer, with the consequence that the complaint will be dismissed."

1. It is apparent that the learned magistrate concluded that because it had not been proved to him that the search of the bedroom was lawful and in pursuance of the terms of a search warrant authorising it, he had a discretion to exclude the evidence of the finding of the property which he exercised in favour of the respondent. With respect he was in error.

1. The evidence of the property found between the mattresses was extremely relevant and therefore admissible. The learned magistrate had a discretion to exclude it if it was shown to him that the evidence was obtained unlawfully. He had no such discretion if the unlawfulness was not established. In Reg v Ireland (1970) 126 CLR 321 at 335 Barwick CJ said that the discretion to reject the evidence arises whenever such unlawfulness or unfairness appears. If it does, the judge must consider its exercise. This was adopted by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 72. The onus is on the defendant. It was said by Murphy J in Cleland v The Queen (1982) 151 CLR 1 at p16:

"If the accused alleges that the evidence was obtained by unlawful or improper means, the onus is on the accused to prove this on the balance of probabilities."

In the same case it was said by Deane J at p20:

"The question whether evidence should be allowed of relevant facts or things so ascertained or procured is, once again, a question to be determined by the trial judge on the voire dire. Once it appears that the evidence is relevant and otherwise admissible, the onus of persuading the trial judge that it should, as a matter of discretion, be rejected, lies on the accused."

1. Notwithstanding that the learned magistrate concluded that there was insufficient evidence upon which he could find that the search was lawful, it did not follow that there was sufficient evidence to establish the contrary so as to give rise to the exercise of the discretion whether to reject the evidence of the finding of the property.