McDonald v Malayta; ex parte
[1996] QCA 196
•21/06/1996
| IN THE COURT OF APPEAL | [1996] QCA 196 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 123 of 1994 Appeal No. 124 of 1994 Appeal No. 125 of 1994 Appeal No. 126 of 1994
Brisbane
| Before | Fitzgerald P. Pincus J.A. Dowsett J. |
[Malayta v. McDonald & Ors; Ex parte Malayta]
SIMON JOSEPH MALAYTA (Senior)
(Applicant)
v.
ANTHONY JAMES McDONALD
KEVIN JAMES CROWLEY andBRENDAN THOMAS CAREW
(Respondents)
Ex parte SIMON JAMES MALAYTA
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 21/06/1996
I have had the advantage of reading the judgments of the other members of the
Court, and need not repeat the circumstances giving rise to this proceeding. I do not
propose to add to the other judgments save to express my views concerning the fact that
the complaint on which the search warrant was based contained an erroneous date in the
allegations with respect to the offence to which the complaint related and the other events
on which the application for a warrant was based.
Modern courts are generally impatient with mere technicalities, but where an invasive State power is used, even against the guilty, the argument for strict compliance with legal requirements derives special force. It is consistent with this approach that
legislation empowering invasive activity by the State is construed extremely narrowly: see,
for example, George v. Rockett (1990) 170 CLR 104; Plenty v. Dillon (1991) 171 C.L.R.
635; Carroll v. Mijovich (1991) 25 NSWLR 441; Coco v. The Queen (1994) 179 C.L.R. 427
and R. v. Chief Constable of Lancashire Police; Ex parte Parker & Anor. (1993) Q.B. 577.
Compare Carbone and Perre v. National Crime Authority (1994) 75 A. Crim. R. 353, 356
where the opinion was expressed that a search warrant must be strictly construed.
The applicant’s argument with respect to the erroneous date in the complaint, which
was debated before us without objection by the respondent, started from the premise that
the police officers were not acting in the performance of their duties when they were
assaulted or obstructed unless they had a valid search warrant; without such a warrant they
were not lawfully on his property: see Plenty, including the approval in the majority judgment
at p. 639 of a passage in the dissenting judgment of Brennan J., as his Honour then was,
in Halliday v. Nevill (1984) 155 CLR 1 at p. 10; Coco at p. 435; and R. v. Reading Justices
& Ors. [1992] Crim. L.R. 672. The respondent did not dispute this proposition, and there
was no suggestion that the police were performing their duty if, for example, they honestly
and reasonably believed they were executing a valid search warrant although the warrant
was invalid; as the judgment of Pincus J.A. points out, Corbett v. R. (1932) 47 C.L.R. 317
would be against such a submission.[1]
[1] Different issues might arise in other contexts; compare, for example, the Canadian cases dealing
Next it was argued for the applicant that the search warrant was invalid because the
complaint on which it was based alleged that the offence and other events to which it
referred had occurred on 11 January 1993, not 11 January 1994, the date on which the
search warrant was issued. As I understand the argument, it is not suggested that, in
consequence, the time for prosecution of the offence had expired or that there was some
other fundamental obstacle to the issue of a valid search warrant in relation to the alleged
offence; the narrow point was that, on 11 January 1994, there were not, and could not be,
“reasonable grounds for suspecting” that a carton of rum stolen on 11 January 1993 and
later that night seen to be taken to the appellant’s residence was still there a year later: see
s. 679 of the Criminal Code; El-Zarw v. Nikola; Ex Parte El-Zarw [1992] 1 Qd. R. 145 and
George v. Rockett.
In determining an issue concerning the sufficiency of the allegations in a complaint
as a basis for a warrant, this Court is restricted to a consideration of the material placed
before the justice see, e.g., El-Zarw at p. 147. The justice who issued the warrant in this
instance had information from two sources; oral statements made to him by the police
officer who applied for the warrant when he telephoned the justice seeking permission to
come to the justice’s home to make the application, and the statements in the complaint.
It was clear from the oral statements that the alleged offence and subsequent events had
occurred that night, but those statements were not sworn to and the justice’s evidence was
that he issued the warrant “... on the basis of [his] understanding of the information in [the
complaint]”. That was the only material “on oath” within the meaning of s. 679 of the Code,
and the only material before him in the sense spoken of in El-Zarw.
There is no evidence that the justice noticed the mistake in the complaint and
mentally corrected it. If he did observe a reference to 1993, it would be necessary to
consider whether it would have been permissible for him to conclude that 1994 was
intended when the police officer had sworn that “the contents of the [complaint were] true
and correct”, at least unless the complaint was amended and resworn. Since the
“reasonable grounds” for suspicion depended on the alleged offence and other events
having occurred that day, the justice would otherwise have had to reject part of the sworn
details of the date as mistaken but accept the remaining details. However, it is
unnecessary to pursue these issues on this occasion.
It was almost certainly assumed by the justice that the complaint alleged an offence
and related to events which had occurred that night, not a year earlier. It is a common
experience for the previous year to be referred to when a date is inserted in a document
in the first few weeks of a new year, and the justice had earlier had information to that effect
from the police officer who telephoned him to make arrangements to attend to apply for the
warrant. The clear probability is that the justice did not notice the mistake. The question,
as it seems to me, is whether it is open to the Court in such circumstances to conclude that,
on the material before the justice, which included the mistaken date in the complaint,
“reasonable grounds” for suspicion were established.
The only authority which I have been able to find which deals with broadly similar
issues in relation to warrants comes from the State Courts in the United States of America,
especially Texas. Clerical mistakes in the material used to establish probable cause to
search in order to obtain a warrant, for example, discrepancies in times, dates or places,
can be cured by explanatory testimony if the warrant is challenged: see, for example Lyons
v. State of Texas 503 S.W. (2d) 254, Green v. State of Texas 799 S.W. 2d 756, State of Texas v. James 848 S.W. 2d 258; Rios v. State of Texas 901 S.W. 2d 704; and Champion
v. State of Texas 919 S.W. 2d 816; compare The State of Illinois v. Blake 640 N.E. 2d 317;
and The State of Kansas v. Lefort 806 P. 2d 986 (Kan. 1991). Although the requirement
of direct explanatory testimony is not met in the present case (cp Green), the only available
conclusion is that of mechanical error in the preparation of the complaint.
While the American cases appear to support the validity of the warrant relied on by
the police officers in this case, there is a critical distinction between the issue there,
namely, whether there was, in fact, probable cause to search, and the question here,
namely, were there “reasonable grounds for suspecting” which were apparent on the face
of the complaint.
In considering that question, this Court is not concerned with any reasons which
might have existed which might have caused the justice to misread the complaint; unless
El-Zarw is to be overruled - and the Court was not asked to do so - the only present
concern is with the meaning of the complaint. The mistake which it contains is latent, not
patent,[2] and read, as it must be in my opinion, in isolation from evidence to reveal and
[2] It is unnecessary in this case to consider what the position would be if a mistake was obvious because a fact alleged, eg a date, was patently absurd.
explain the mistake which it contains, it asserts an offence and other activities a year
earlier than the date when the complaint was laid and the warrant issued.
In the circumstances, I consider that the approach required of the Court, technical though it might seem, leads to a conclusion that the warrant was invalid.
It follows that the orders to review should be made absolute, with costs to be taxed.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 21/06/1996
I have read the reasons of Dowsett J and, subject to what appears below, agree with his
Honour’s views and with the order proposed.
Before this Court the parties agreed that if the search warrant was invalid, the appeals must
succeed. The charges were laid under the Police Service Administration Act 1990, s. 10.20A - "
. . . a person must not assault or obstruct a police officer in the performance of the officer’s duties".
Under this legislation there is no provision for an alternative verdict of common assault, as there would
be under s. 340(2) of the Criminal Code.
For a police officer to act in accordance with a search warrant would ordinarily be "in the
performance of the officer’s duties". However, the High Court in Corbett v. R (1932) 47 C.L.R. 317
held, in a case concerning a charge of obstructing police in the execution of their duty, 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 . . . It is not enough that the officer was acting bona fide in obedience to a warrant, which, although bad, appeared to be good. " (at 327 per Gavan Duffy C.J., Rich and Dixon J.J.)
So, an alternative verdict of assault simpliciter being unavailable, the question of validity of the warrant
is determinative of the appeals.
It seems desirable to make reference to a point which was first raised at the hearing in this
Court, namely what the appellants counsel described as a "technical" error in the complaint dated
11 January 1994 on which the search warrant, on which the police relied, was granted. This point
appears not to have been raised at trial, nor is it mentioned in the outline of submissions; the issuing
justice was called but was not asked about this matter. The complaint alleged that on 11 January 1993
a person was seen to take a carton of rum from a shed beside a hotel, put it in a vehicle and drive away;
the vehicle, so the complaint said, was later seen at a residence, being that to which the search warrant
related.
It is said that the date given, 11 January 1993, was an obvious slip for 11 January 1994. If that
were not accepted, then it would have to be held that the warrant was invalid because, read literally,
the complaint could not have justified a warrant for a search a year after the events complained of.
The point is worth some analysis because mistakes in complaints and in search warrants seem
to be common; as Byrne J said in El-Zarw v. Nikola; ex parte El-Zarw [1992] 1 Qd.R. 145 at 149:
"Sometimes the supporting material will be composed in haste; and ordinarily it will be
drafted by someone not legally trained."
His Honour went on to say that the material placed before the issuing justice "should be approached
in a commonsense, not hypertechnical, manner . . . ".
Although I have not found any authority in which such a slip as this was considered, the proper
view appears to be that the Court is entitled to infer, in appropriate circumstances, that an allegation in
the complaint contains a slip and to read it as if the slip were corrected. An analogy is with the law relating to construing contracts, exemplified by Fitzgerald v. Masters (1956) 95 C.L.R. 420 where it
was said that "[w]ords may generally be supplied, omitted or corrected, in an instrument, where it is
clearly necessary in order to avoid absurdity or inconsistency" (426, 427); see also Attorney-General
(N.T.) v. Maurice (1987) 72 A.L.R. 231 at 239 and Re United Pacific Transport Pty Ltd [1968]
Qd.R. 517 at 523. A similar doctrine applies in interpreting statutes: Ex parte Melvin [1980] Qd.R.
391 at 393, Director of Public Prosecutions (Nauru) v. Fowler (1984) 154 C.L.R. 627 at 630.
Here, there are a number of reasons for treating the complaint as having mistakenly alleged the
occurrence of events in 1993 instead of 1994 and the case should be decided as if the complaint
referred to the later year. That is so, although the validity of the warrant depended upon there being
sufficient information in the complaint itself to justify the issue of the warrant: George v. Rockett (1990)
170 C.L.R. 104, and although courts should, the High Court has said, insist on "strict compliance with
the statutory conditions governing the issue of search warrants" (111). It may be suggested that reading
the complaint as if it made a different allegation from that which it in fact makes is a course which is
irreconcilable with the approach taken in George v. Rockett; but the better view is that if the complaint
contains what any sensible person would regard as an obvious slip, the justice may issue a warrant,
reading the complaint as corrected.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 123 of 1994 Appeal No. 124 of 1994 Appeal No. 125 of 1994 Appeal No. 126 of 1994
Brisbane
[Malayta v. McDonald & Ors; Ex parte Malayta]
SIMON JOSEPH MALAYTA (Senior)
(Applicant)
v.
ANTHONY JAMES McDONALD
KEVIN JAMES CROWLEY andBRENDAN THOMAS CAREW
(Respondents)
Ex parte SIMON JAMES MALAYTA
Fitzgerald P.
Pincus J.A.Dowsett J.
Judgment delivered 21/06/1996
Separate reasons for judgment of Pincus J.A. and Dowsett J. concurring as to the orders made; separate dissenting reasons of Fitzgerald P.
ORDERS TO REVIEW DISCHARGED WITH COSTS.
CATCHWORDS: | CRIMINAL LAW - Application for orders to review convictions recorded for assaulting police officers and obstructing a police officer pursuant to the execution of a search warrant (s. 10.20A Police Service Administration Act 1990). Existence and validity of warrant - warrant founded on complaint with incorrect date of offence inserted - whether the justice who issued the warrant applied an incorrect test in so doing based on the material on which he relied - whether convictions were unsafe and unsatisfactory - s. 679 Criminal Code. |
| George v. Rockett (1990) 170 C.L.R. 104 Re: Macleod (1992) 61 A. Crim. R. 465 El-Zarw v. Nikola, ex parte El-Zarw [1992] 1 Qd. R. 145 Corbett v. R. (1932) 47 C.L.R. 317 Fitzgerald v. Masters (1956) 95 C.L.R. 420 | |
| Counsel: | Mr G. Reithmuller for the applicant. Ms L. Clare for the respondents. |
| Solicitors: | Legal Aid Office for the applicant. Queensland Director of Prosecutions for the respondents. |
| Hearing date: | 2 November 1995 |
REASONS FOR JUDGMENT - DOWSETT J.
Judgment delivered 21/06/1996
The applicant applies for orders to review four convictions recorded against him in the Magistrates' Court at Ayr on three counts of assaulting police officers in the performance of their duties and one of obstructing a police officer. All four charges allegedly arose out of the attempted execution of a search warrant at the applicant's residence in Ayr on 11 January, 1994. Each conviction depended upon the existence and validity of that warrant. The events in question were precipitated by the reported theft of a carton of rum from the Kalamia Hotel in Ayr at some time between 7.30 and 7.45 p.m. on that day. This report was received by Senior Constable Carew from Brian David Cranitch, the bottle shop manager at the hotel. Cranitch identified a blue station wagon as involved in the theft. Shortly thereafter, Carew located such a vehicle at premises described as 42 MacMillan Street, Ayr, the applicant's home. There is a large vacant block between the back of the hotel and MacMillan Street, and the applicant's house is about fifty metres from the vacant block. The prosecution case was that Carew relayed the information about the complaint and the vehicle to Constable Crowley who approached a local justice of the peace to obtain a search warrant authorising a search of the appellant's premises and vehicle. The application was pursuant to s.679 of the Criminal Code which provides:
"(1)
If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, vessel, vehicle, aircraft, or place -
(a)
anything with respect to which an offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have been, committed; or
(b) ...; (c) ...; the justice may issue a warrant directing a police officer or police officers named therein or all police officers to enter, by force if necessary, and to search such house, vessel, ... and to seize any such thing if found and to take it before a justice to be dealt with according to law.
(2)
Any such warrant is to be executed by day unless the justice, by the warrant, specially authorises it to be executed by night, in which case it may be so executed.
(3) ..." The term "night" means the interval between 9.00 p.m. and 6.00 a.m.. (See s.1.)
Crowley produced to the justice a document described as "Complaint to Ground Search
Warrant" in which he asserted that:-
"... there are reasonable grounds for suspecting that there is in the house or vehicle of one Simon Malayta situated at 42 MacMillan Street, Ayr in the said State certain property, to wit one carton of 750 ml bottles of Bundaberg rum with respect to which the offence of stealing has been (or is suspected on reasonable grounds to have been) committed; ..."
The grounds for his belief were said to be:-
"The complainant in this instance is the Kalamia Hotel. They state that at approximately 7.50 p.m. on 11 January, 1993 they observed a male aboriginal person take a carton of 750 ml bottles of Bundaberg rum from the storage shed beside the hotel. They then observed this person place this property into the rear of a blue Ford station wagon and then drive away with the property. This vehicle has since been observed by police at the residence situated at 42 MacMillan Street, Ayr. This residence belongs to Simon Malayta."
I would readily infer that the 1993 date must have been an error of the kind which often occurs early in the New Year when people tend to continue to write the old year from force of habit. Nonetheless, this is one of the grounds upon which the warrant is attacked.
A warrant was issued, reciting that it appeared to the justice that there were reasonable grounds for suspecting:-
"... that there is in the house or vehicle of one Simon Malayta situated at 42 MacMillan Street, Ayr, in the said State certain property to wit one carton of 750 ml bottles of Bundaberg rum with respect to which the offence of stealing has been (or is suspected on reasonable grounds to have been) committed"
The warrant commanded the principal police officer at Ayr and all other police officers to enter the said house and vehicle and search for the property. There was an endorsement initialled by the justice to the effect that the warrant might be executed at night or by day.
The applicant firstly submits that the warrant was void because the justice applied the wrong test in issuing it and because the material on which he relied in so doing was either misleading or otherwise not appropriate for the purpose. Secondly, the applicant challenges the very existence of the warrant at the time relevant to these proceedings. Evidence of this latter matter, either by itself or in conjunction with other matters, is said to render the convictions "unsafe and unsatisfactory". It is submitted that the validity of the warrant had to be proven beyond all reasonable doubt and that the Magistrate could not safely have been so satisfied. I will deal with this second point first.
The primary challenge to the existence of the warrant was based upon the evidence as to the time of the arrival of the police at MacMillan Street. The police evidence was that Carew was called to the Kalamia Hotel at about 8.00 p.m. on 11 January, 1994. He subsequently drove past 42 MacMillan Street and then went to the Ayr CI Branch, where he spoke to McDonald and Crowley. Both McDonald and Crowley put their conversation with him at about 8.00 p.m.. Crowley then went to see the justice, Mr Muirhead, to obtain the warrant. Before doing so, he typed out the complaint and the draft warrant. He said that the warrant was issued at about 8.15 p.m.. He then returned to the police station, had a conversation with McDonald and Carew and then went to Soper Street, which is near MacMillan Street, arriving at about 8.40 p.m.. At 9.00 p.m., other police officers arrived and they then proceeded to the premises in MacMillan Street, arriving there also at about 9.00 p.m.. The warrant was produced, something of a melee ensued, during which the offences in question allegedly occurred, and the police officers retreated to the yard of the house.
About an hour later, the witnesses, Smallwood and Hill arrived. They were employees of the Legal Aid Service and the local council respectively. These gentlemen spoke to the occupants of the house, including the applicant. The police then again entered the house, the search warrant was executed and the applicant was arrested. During the search, the rum, or a substantial part of it was located. In cross-examination, Crowley agreed that the time at which he obtained the warrant may have been as late as 8.30 p.m.. McDonald said that he thought that Crowley returned to the station with the warrant between 8.20 and 8.40.. Carew said that they went to the house shortly before 9.00 p.m..
Edward Neil Smallwood was a field officer for the Legal Service, presumably the Aboriginal and Torres Strait Islanders' Legal Service. He said that between 8.00 and 8.30 p.m., he received a telephone call which resulted in his going to the applicant's home. The applicant said in evidence that he had asked his niece to call him after the police first entered his home. Smallwood fixed the time by reference to the telecast of the cricket, which finished at 8.30. He said that after the telephone call, he took about 15 minutes to get changed and probably went to the appellant's home at about 8.45. He later said that he probably arrived there at about 8.45. He said it would have taken about 10 to 15 minutes to travel that distance. Dianne Smallwood, his wife, accompanied him. She said that she had made a note to the effect that she had been called out at about 8 or 8.30 p.m. with her husband. She said she made the note on the day in question. Her employer required that she keep a record of her activities. She said they arrived at MacMillan Street some time after 8.00 to 8.30 p.m..
Mr Smallwood said that he spoke to the applicant for about 10 minutes and then went to a caravan park to pick up the witness, Hill. This was some time after 9.00 p.m.. Hill dressed within about 5 minutes, and they then returned to MacMillan Street. Smallwood said he was probably away for about 10 to 15 minutes. Hill was a youth worker. He said that he had gone to bed at about 8.45 p.m. or so and that at about 9.30 or 9.45, he heard a knock at the door. This was Smallwood. They went to MacMillan Street, arriving there at close to 10.00 p.m.. It was suggested to him in cross-examination that Smallwood may have arrived at the caravan at 8.45 or 9.00, but Hill said that he, "rather preferred 9.45". This evidence was in some way based upon a reference to his watch, but he was not clear on this point. He said that he eventually returned to his caravan at about midnight and that this also confirmed his recollection that Smallwood's arrival was closer to 10.00 p.m. than 9.00 p.m.. Mr Muirhead, the relevant justice, was the Clerk of the Court at Ayr. He said that he was contacted at about 8.00 p.m. and that Crowley arrived at his home at about 8.00 or shortly thereafter. Muirhead read the complaint and had a general conversation with Crowley about other matters. He caused Crowley to swear to the contents of the complaint. Crowley then produced the pre- typed warrant which Muirhead signed. There was further conversation and subsequently, Crowley drew Muirhead's attention to the fact that the warrant was endorsed for execution at night. Muirhead said that he had noticed that and then initialled the warrant. He said that he was, "satisfied there was grounds to issue the search warrant to search the premises for a carton of rum that had been stolen from an hotel." He said that Crowley was at his premises between 8.00 and 8.30 p.m. and that he knew it was before 9.00 p.m. because of the significance attaching to the endorsement for service at night. The witness said that he assumed that Crowley intended to execute the warrant virtually immediately. He had assumed that somebody from the Kalamia Hotel had made a complaint to Crowley. He was asked in conversation and replied:-
"Now the test that you applied, did you apply the test that you had to be satisfied
that he, Crowley, is satisfied of the reasonable ground?-- That's right.
That's the test you applied? -- Yes."
The applicant gave evidence that when he first saw McDonald at the premises with the
other police officers, he asked if he had a warrant. McDonald did not produce one. He said that McDonald shined a torch in his eye, and he brushed it away. It fell out of McDonald's hand and hit the stairs. He closed the door and told his niece to ring Eddie Smallwood.
McDonald then said, "You're under arrest for assault." They then waited for Smallwood. Malayta said that he did not see a warrant at any time on that evening. In cross-examination, he said that he thought the police had arrived at about 8.15. He agreed that at that time, he was affected by liquor.
Other evidence from various witnesses is relevant to the question of whether the police had a search warrant when they first entered the house. Smallwood said that he was told by McDonald, when he arrived at MacMillan Street, that the police had a warrant to search the premises. He accepted that this was so but at no time saw the warrant. When Hill arrived at MacMillan Street, he was shown something by McDonald, which the latter said was the warrant. Hill did not look at it carefully and could not say whether it was a warrant or not. Mrs Smallwood's notes, allegedly made on the same day as the incident, were to the effect that the summons to MacMillan Street was, "concerning a family disturbance where the police had a search warrant to search these premises for stolen bottles of rum." This note may record what her husband told her about the phone call or it may be a summary of her knowledge of events made afterwards. The terms of the note suggest that it records the telephone call.
Malayta said that McDonald had a folder in his hand at the time of the first entry into the house. McDonald said that he had the warrant in a plastic folder.
The applicant points to the evidence of the Smallwoods as supporting his version that the police arrived at his home at about 8.15. He then submits that in view of Muirhead's evidence, it was impossible for the police to have had the warrant at the time at which they arrived at MacMillan Street. On the other hand, Hill's version supports the police evidence, at least to the extent that he was not summoned until 9.45 and arrived at MacMillan Street about 10.00 p.m.. It certainly would have been difficult for Carew to have responded to the call to the hotel, located the vehicle at MacMillan Street, assembled the police party and entered the premises by 8.15, although it might not have been impossible.
At the trial, counsel for the applicant suggested to McDonald that the police had first gone to the premises at about 8.30 p.m. without a search warrant. He further suggested that they had obtained the search warrant between then and when Smallwood arrived, or perhaps thereafter. He suggested to Carew that they had arrived, "before 8.30, 8.45 ...". The applicant's own evidence was that the police arrived at 8.15. Muirhead's effectively unchallenged evidence was that the warrant was issued between 8.00 and 8.30 or possibly a little later. As the applicant did not challenge Crowley's evidence that he was present at MacMillan Street when the first entry occurred, he must have obtained the warrant either before that entry or afterwards. It is difficult to see how he could have been at MacMillan Street, even at 8.15, and during the events which subsequently occurred, and then obtained the warrant before 8.30 or 8.40.
In the end, the question for the Magistrate was whether or not the evidence of the applicant and the Smallwoods caused him to have a reasonable doubt about whether the police had a warrant when they first entered the premises. He had no such doubt, pointing to the fairly tight time-frame between the alleged offence at 7.45 and the arrival of the police at MacMillan Street, if that occurred at 8.15 p.m., the fact that Crowley was at Mr Muirhead's house between 8.00 and 8.30 p.m. and Mr Hill's evidence. That view was fairly open to him.
A number of other grounds were relied upon as rendering the convictions unsafe and unsatisfactory, although we were not favoured with detailed references to the evidence. Firstly, it was suggested that the police officers had copied each other's statements, altered their statements depending on advice given to them by other officers and attempted to learn their statements. This criticism finds no justification in McDonald's evidence. Crowley said that he had prepared his statement about three weeks before the hearing, which commenced on 2 March, 1994. He said that he prepared it in conjunction with McDonald and by reference to a draft of McDonald's statement which, he understood, McDonald had prepared in conjunction with another police officer, Trevilyan, who was not called at the trial. Trevilyan had been the complainant on another count of assault arising out of the same events, but the prosecutor consented to the dismissal of that complaint in the absence of Trevilyan. Crowley said that McDonald and Trevilyan had agreed to changes in their statements as a result of his own differing recollection of some events. He was asked, "Did you learn your statement?" And replied, "Not word perfect but as I recall as good as I could."
Carew agreed that when he made his statement, he had previously seen statements by other persons, presumably police officers. He agreed that he had read his statement before giving evidence and when asked if he had learnt it, he responded, "Knowing my evidence, yes.". He understood that certain of the conversations had been recorded in notes made by Trevilyan.
It is often a valid criticism of the evidence of a witness that he or she has previously collaborated with another witness. Such criticism may be accentuated where one of the collaborators is not called, particularly where, as here in the case of Trevilyan, it appears that the absent witness may have played a significant role in formulating the statements of evidence. The significance of the criticism will vary according to the nature of the events in question and the respective roles played by the various witnesses in those events. It may also be relevant to consider the length of time which has elapsed between the events in question and the making of the various statements.
In this case, the trial commenced 50 days after the event. The statements were made about three weeks before the trial or perhaps more in some cases, suggesting that they were made within about a month of the events in question. It was a relevant criticism of the police evidence that they had collaborated in producing their statements. It was necessary that the Magistrate keep that matter in mind in assessing their evidence and the evidence of the other witnesses. I see no reason to believe that he failed to do so. Trevilyan's absence was a relevant matter for comment, but again, I can see no reason to conclude that the Magistrate failed to give it proper weight. Similar comments apply to the criticism that some police witnesses "learned" their evidence.
In support of the submission that the convictions are unsafe and unsatisfactory, it is also said that the endorsement on the search warrant as to the time of execution, "is inconsistent with the police evidence as to the time that they executed the warrant." The endorsement records that the warrant was executed at 9.00 p.m. on 11 January, 1994. The criticism is that although, according to the police, they tried to execute the warrant at about 9.00 p.m., the actual search of the premises did not occur until 10.00 p.m. The entry on the warrant was made by Crowley, and this matter was canvassed with him in evidence. He said that he thought that the execution of the warrant commenced at the time the police first entered the premises. I agree with him. There is nothing in this point.
It is asserted that it was curious that none of the police officers received any injuries, despite allegations that the defendant had punched all of them in the head or face. It is also said that there were inconsistencies in police evidence as to who had physical possession of the warrant at the time that they entered the premises and in their evidence as to what occurred there. I do not find it at all surprising that there should have been such discrepancies in view of the nature of the events. Again, these were matters for consideration by the tribunal of fact. I do not find them to be so surprising as to lead me to doubt the safety of the convictions.
It seems that warrants are customarily filed in the Magistrates' Court registry. At some stage, somebody was unable to locate this warrant in the registry. It is said that the Magistrate himself found it during the hearing. This is said to be a further reason to doubt the safety of the convictions. It is also pointed out that the search warrant was signed twice, once at its foot and once by way of an "initialling" of the authority for entry at night time. It is said that these signatures are in different inks. This matter was canvassed with the justice in his evidence. Its relevance can only have been that it grounded a submission that the endorsement for service at night was initialled on a later occasion and not on the same occasion as that upon which the warrant was executed. The justice said that both signatures were made on the same occasion, and I cannot see any basis for doubting him, nor do I see any significance attaching to the fact that the warrant may have been misplaced in the court filing system. Again, these were matters that the Magistrate had to consider, and he presumably did so.
Specific criticism was made of the fact that it was not put to the Smallwoods that their evidence as to times was incorrect. Mr Smallwood was, of course, called by the prosecution, and so it would not have been appropriate for the prosecutor to cross-examine him. However Mrs Smallwood was called by the defence. This may be a valid criticism of her cross- examination, but it must be remembered that Mrs Smallwood gave evidence at the end of the case. Although she should have been given an opportunity to comment upon the prosecution allegation that the summons to MacMillan Street and her attendance there occurred later than she was saying, in terms of the conduct of the defence case as a whole, this failure cannot have caused any unfairness. By that stage, it was clear that the police were alleging that the Smallwoods had arrived at about 10.00 p.m.. Mrs Smallwood's reasons for fixing an earlier time were also clear from her evidence-in-chief. She had given evidence of the contents of her notebook. In those circumstances, it seems most unlikely that she would have had anything else to say as to why she thought she had gone to the premises at an earlier time.
It is also submitted that the convictions are "unsafe and unsatisfactory" because the Magistrate relied, "upon information contained within the complaint sworn for the purpose of obtaining the search warrant, in determining the time at which the events took place, when this was either hearsay or a previous consistent statement of the witness Carew, and not able to be used for such a purpose." The substance of this complaint appears to be that the Magistrate accepted that the incident at the hotel occurred at approximately 7.45 and based some of his reasoning upon that conclusion. The complaint alleged that the theft occurred at 7.50 p.m.. However Mr Cranitch said in evidence that it had occurred at, "around 7.30 closer to 7.45 ...". It seems that the Magistrate acted upon that version. Whatever the technical validity of the submission that the Magistrate could not have relied upon information contained in the complaint because it merely recorded what Carew had been told, it is clear that the Magistrate did not rely upon that material, but rather upon Cranitch's slightly different version.
The decision is also criticised because the Magistrate used Hill's evidence to corroborate the police despite his observation that Mr Hill, "has no reason to base his times, estimates of times ...". The observation may not have been strictly correct. Passages in Hill's evidence-in- chief at p.115 and p.122 suggest that his evidence was based upon a contemporaneous reference to his watch, although he does not actually say so. In any event, even if the Magistrate was correct in his assertion that Hill had no basis for his evidence as to time, it shows only that the Magistrate exercised appropriate care in assessing the value of his evidence. It was also said that the Magistrate failed to, "consider or attempt to reconcile the variations in the evidence given by the police as to the events that took place in the house." I see no basis for this assertion. Finally, it is submitted that the Magistrate erred in taking what is said to have been the view of Cranitch's evidence as to time which was most favourable to the prosecution case. This is apparently a reference to his fixing the time of the theft at 7.45 p.m.. Cranitch put it at, "Around half past - closer to quarter to 8, around that ...". He also said that he immediately rang the police who arrived about 10 minutes later. Carew said that he arrived at the hotel at about 8.00 p.m.. I cannot see any validity in the criticism of the Magistrate's finding that the theft occurred at approximately 7.45 p.m..
In the end, these matters, taken individually or collectively, do not justify the assertion that the Magistrate's decision and the consequential convictions are in any way unsafe or unsatisfactory. This catalogue of criticisms reflects nothing more than that both at the trial and on appeal, every possible argument has been advanced on behalf of the applicant.
I turn to the submission that the warrant was invalid. Firstly, it is said that the justice applied the wrong test in issuing the warrant. The relevant passages in his evidence are as follows:-
At p.124
"When you read the complaint, what was your opinion when you read the complaint - "Well, do you want to have a look at the complaint?"-- Well, "Yes we will have to look at the complaint." From memory it was a person that had been seen taking a carton of rum from a pub and placing it in his car and drove away. A similar car was seen at MacMillan Street by police, and that was the grounds virtually of the search warrant at that particular place, 42 MacMillan Street, Ayr. That's where the car - a similar type of car or colour of car had been seen to be.
You - with that information what was your opinion? -- I was satisfied there was grounds to issue the search warrant to search the premises for the carton of rum that had been stolen from a hotel."
At p.126
"Now, he gave you the complaint and did you ask him whether he was satisfied that the information was correct? No, I read the grounds on the complaint. I said that a person had been observed placing a carton of rum into his car and then driving away. And a similar car had been seen at 42 MacMillan Street. To me that's sufficient grounds to issue a search warrant to those premises."
At p.127
"And now the test that you applied, did you apply the test that you had to be satisfied that he, Crowley, is satisfied of the reasonable ground? That's right."
In the written outline of argument, it is submitted that the proper test is that the justice, himself, must be satisfied of the existence of reasonable grounds for holding the requisite suspicion and that he must also, himself, entertain that suspicion. This submission is based upon the decision of the Full Court in Hedges v. Grundmann, ex parte Grundmann [1985] 2 Qd R 263. However the High Court has determined that the requirement of actual suspicion on the part of the justice is not required by the legislation. See George v. Rockett (1990) 170 CLR 104 at p.112. Thus it was only necessary that the justice be satisfied by complaint on oath that there were reasonable grounds for suspecting that the carton of rum was in the house or vehicle and that there were reasonable grounds for suspecting that the carton had been stolen from the hotel.
The appellant submits that the justice did not apply that test. He relies upon the passage in the evidence of Mr Muirhead at p.127 set out above as supporting this submission. Given the clear and simple allegations made in the complaint, it would have been surprising if the justice had not been satisfied of the requisite matters. Ignoring for the moment the complicating factor of the error in the date, there is a clear allegation of a reported theft involving a described motor vehicle. A vehicle fitting that description was seen shortly thereafter at the premises in question, near to the scene of the theft. It is true that there are probably many blue station wagons in Queensland, but Ayr is a relatively small town. The coincidence of time and place was of some significance. By way of completeness, I should say that although the vehicle was described as a Ford in the complaint, there was no evidence that Cranitch so described it. In his evidence, he did not do so. Carew was not asked about this point.
At the time of issuing the warrant, the justice acknowledged in writing his satisfaction that there were reasonable grounds for suspecting the relevant matters. The search warrant is in that form. Of course, the mere fact that the justice signed the search warrant does not exclude the possibility that he failed to apply the appropriate test. The applicant relies upon the justice's answer to one question in cross-examination as showing that he failed to do so. The way in which the matter was put to him was less than helpful. He was asked, "Did you apply the test that you had to be satisfied that he, Crowley, is satisfied on the reasonable ground?" The question as recorded is vague and might be described as deceptive. His answer must be assessed in the light of his evidence as a whole and the task he was performing. As I have said, this was a very simple matter.
The Magistrate considered the question of the validity of the warrant as a preliminary question and at p.142 of the record, dealt with the present issue. He said:-
"The justice of the peace was asked whether he relied on that exact question that was put to him, that he gave in the affirmative, which Mr Riethmuller has submitted to me, that was not sufficient - that matter wasn't pursued any further, and I don't believe that it would be a similar situation in this case. It wasn't taken any further with the justice of the peace."
This is a reference to the passage in the cross-examination of the justice to which I have previously referred. What the Magistrate appears to be saying is that he was not particularly impressed by defence counsel's leading the justice into what may have been a technical error by putting to him a particular test which was other than the correct test. I share the Magistrate's views of the persuasiveness of such evidence. In his evidence-in-chief, Mr Muirhead said that he was satisfied there were grounds to issue the search warrant. One assumes that this must have been a reference to the matters prescribed by s.679, and in the context of his evidence, this appears to have been so. His insistence (at p.126) that he acted on the matters in the complaint rather than on Crowley's view is also persuasive evidence against this submission.
I have carefully read the decision of Slicer J. in Re MacLeod (1992) 61 A Crim R 465, but find it to be a quite different case from the present. In the present case, specific allegations were outlined in the complaint as justifying the requisite suspicion. In MacLeod, there appears to have been little more than the opinion of a police officer advanced in support of the application. In the present case, the Magistrate was entitled to conclude that the justice had formed the requisite opinion.
The validity of the warrant is also attacked because of the use of so-called hearsay evidence. This argument assumes the applicability of the rules of evidence to the process of issuing a warrant. The High Court, in a line of cases ending in Grollo v. Palmer (1995) 69 ALJR 724 at p.728, has held that although a judicial officer, in issuing a warrant, may be under a duty to proceed judicially, he is nonetheless exercising an executive, not a judicial power. The decision of the Judicial Committee of the Privy Council in Hussien v. Chong Fook Kam [1970] AC 942 at p.949 is authority for the proposition that where the formation of a reasonable suspicion is a condition precedent to the exercise of a power, such suspicion may be based upon matter which would not be admissible evidence in establishing a prima facie case.
Slicer J., in Re MacLeod (supra), took a similar view at p.472, as did Marks J. in Coghill
v. McDermott [1983] 1 VR 751 at p.756. The Full Court in this state did not consider it
necessary to decide the question in El-Zarw v. Nikola, ex parte El-Zarw [1992] 1 Qd R 145.
I see no reason for applying the rules of evidence to the function of issuing a warrant. There is no authority compelling such a conclusion, and there is authority to the contrary. The submission lacks substance. It is appropriate that an applicant for a warrant disclose questions concerning the reliability of the material put before the justice. If there is reason to doubt such material, that must go to the reasonableness of holding the appropriate suspicion. As it is implicit in s.679 that the applicant should entertain the relevant suspicion (see George v. Rockett (supra) at p.111), he should disclose any such doubts to the justice and explain why they have not prevented him from forming that suspicion. In the present case, Crowley had no reason to doubt the accuracy with which Carew had recorded the complaint, nor his veracity in reporting his own observations at MacMillan Street. In those circumstances, the material put before the Magistrate was not in any way misleading, nor was its persuasive value in any sense undermined by the fact that it was hearsay according to the rules of evidence.
Finally, it is submitted that the warrant was invalid because the endorsement for service in the night time was made without proper consideration of whatever may be the relevant test. This submission is completely inconsistent with the evidence. At some time between 8.00 and 8.30 p.m., the justice was told that a theft had occurred in the preceding hour. He was told that a vehicle similar to one used in the theft had been located within a short distance of the hotel where the offence occurred. He knew that the subject of the theft was a highly consumable product. He also knew that for relevant purposes, the night would commence at 9.00 p.m., in something less than an hour. Had he said nothing in evidence about how he came to initial the endorsement, one would readily have inferred that he had simply used his commonsense and realized that there was a real possibility that the warrant would be at least partially executed in the night time and that out of an abundance of caution, such execution should be authorized. By including the endorsement in the draft warrant, Crowley had expressly sought such an order. In fact, the justice said that his attention was drawn specifically to the endorsement and that he chose to approve it. For the reasons which I have given, it was an entirely appropriate exercise of the discretion.
One other matter remains for consideration, and that is the erroneous reference to 1993 in the complaint. It seems that there was no mention of this defect at the trial. The justice's evidence-in-chief and cross-examination appear to have proceeded upon the basis that the relevant events had occurred very shortly before Crowley called upon him, although it is fair to say that there is no express statement in the evidence to that effect. The written outline of argument delivered on behalf of the applicant makes no reference to this criticism. This Court would be justified in inferring that in raising the point at this stage, counsel for the applicant seeks to exploit a point which was not considered at the trial. Had the attention of Muirhead or Crowley been drawn to this defect in the complaint, I have little doubt that each would have readily identified it as merely a typographical error. It is most unlikely that Mr Muirhead would have treated with equanimity his being disturbed at home at night time for the purpose of issuing a warrant to search for a carton of rum which had been stolen a year previously. Had the matter been put to the justice in cross-examination, he could have responded in one of three ways. He could have said that he had inadvertently taken the reference to be a reference to 11 January, 1994, he could have said that he noticed the error and assumed that it was a reference to that date or he could have said that he took the date at face value. In the third case, it would have been difficult to justify either the issue of the warrant or its endorsement for service at night time. The time for exploring this matter was during the trial. That was not done. I see no reason for assuming that the justice's understanding of the complaint was other than as a
| complaint of a very recent theft. | The orders to review should be discharged with costs. |
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