NSW Police v Manwarring

Local Court

New South Wales

Medium Neutral Citation:

NSW Police v Manwarring [2022] NSWLC 24

Hearing dates:

18 November 2021
19 November 2021
25 February 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Criminal

Before:

Magistrate M O’Brien

Decision:

Evidence obtained during execution of search warrant excluded

Catchwords:

Cultivate cannabis – search warrant – evidence obtained as a consequence of impropriety or contravention of Australian Law - exclusion of evidence

Legislation Cited:

Drugs Misuse and Trafficking Act 1985

Crimes Act 1900

Evidence Act 1995

Law Enforcement (Powers and Responsibilities) Act 2002

Criminal Procedure Act 1986

Environmental Planning and Assessment Act 1979

International Covenant on Civil and Political Rights

Cases Cited:

George v Rockett (1990) 170 CLR 104

R v Ho (1989) 39 A Crim R 145

Cornwell v The Queen [2010] NSWCCA 59

Director of Public Prosecutions (Vic) v Natale [2018] VSC 339

Category:

Principal judgment

Parties:

NSW Police (Prosecution)
Phillip Manwarring (Defendant)

Representation:

Sergeant Comer (for the Prosecution)
Mr John Stratton SC with Kathleen Heath instructed by Armstrong Felton Solicitors (for the Defendant)

File Number(s):

2020/00101575

Publication restriction:

Nil

Judgment

1. On 1 April 2020 two unmarked police vehicles made their way to a rural property situated on Moss Vale Road at Beaumont, nestled in the Kangaroo Valley being part of Cambewarra Range. Upon arrival, Police met the accused, Phillip Manwarring, who was not expecting their visit, telling him they were making inquiries about an illegal building structure erected on the property and the manufacture of illicit drugs taking place there based on information they had received. The accused inquired if police had a warrant. No, he was told. He asked them to leave. They did.

2. Later that day a search warrant was issued from the Registrar of Nowra Local Court at the request of one of the police officers present at the accused property earlier that day, Senior Constable Corbridge, to search the accused’s property, seeking documents which it was claimed would support evidence of fraud.

3. PolAir flew a fixed wing aircraft over his property, twice, once, on 11 February 2020 at the request of Sergeant Watson, and another during the night of 1 April 2020 at the request of Corbridge. Police returned the next day, 2 April 2020, armed with a search warrant, issued by the Registrar of Nowra Local Court, to search for documents connected with unapproved building work as evidence of a fraud. Some landscape drawings were found and seized. During a walk-through of the dwelling, police found a dried cannabis leaf in a room underneath the house adjacent to a rumpus room.

4. The accused consented to a further search on the basis that if he withheld his consent, a crime scene warrant would be obtained in a matter of hours. More police were summoned. Pots of cannabis were found in more remote locations within the curtilage of the property and beyond.

5. The accused, has since been charged with cultivate cannabis contrary to the provisions of section 23(1)(A) of the Drugs…