R v Adamic
[2000] QSC 402
•8TH November 2000
SUPREME COURT OF QUEENSLAND
| CITATION: | R v Adamic [2000] QSC 402 | ||||
| PARTIES: | THE QUEEN v JOHN ADAM ADAMIC | ||||
| INDICTMENT NO: | 377 of 2000 | ||||
| DIVISION: | Trial Division | ||||
| DELIVERED ON: | 8TH November 2000 | ||||
| DELIVERED AT: | Brisbane | ||||
| HEARING DATE: | 6, 7 November 2000 | ||||
| JUDGE: | Holmes J | ||||
| ORDER: |
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| CATCHWORDS: | CRIMINAL LAW - EVIDENCE - ADMISSIBILITY - questioning by police officer - - judicial discretion - - failure to give accused opportunity to have solicitor present Search warrant – whether address of premises to be searched sufficiently particularised Police Powers and Responsibilities Act (Qld) 1997, s23, s26, s28, s29, s93, s95, s106 Criminal Code s 592A Police Responsibilities Code, s 66) | ||||
| COUNSEL: | Mr W Cuthbert for the accused Mr N Weston for the Crown | ||||
| SOLICITORS: | Witheriff Nyst for the accused Queensland Director of Public Prosecutions for the Crown |
HOLMES J: The accused, Mr Adamic, is charged with two counts of possession of a dangerous drug. On the morning of 14 August 1999 he was pulled over by two officers from the Surfers Paradise Criminal Investigation Branch and his car and person searched. Small amounts of heroin were found in clipseal bags in his trouser pockets and in his key case; that seizure is the subject of the first count on the indictment. After the search, Mr Adamic was taken to the Southport Watch-house. On the following morning at about 6amDetective Ottaway, one of the officers who had detained him on the previous day, found amongst his property a piece of paper on which was written a telephone number. On enquiry, that number was found to relate to an address at 7 Whiting Street, Labrador. A search warrant was immediately obtained for that address, and was executed at 7.50 am. In the event, the premises were found to be a block of units. The police searched Unit 12, that being the unit for which Mr Adamic’s keys opened the letterbox. Heroin, firearms and a large amount of money were found at the premises. The second of the possession counts relates to the location of the heroin.
The accused applies under s 592A of the Criminal Code for a ruling excluding evidence of all his conversations with the police officers, on the basis that they did not comply with s95 of the Police Powers and Responsibilities Act 1997; and for exclusion of the evidence of items found during the search of the unit on the ground that the search warrant was invalidly obtained. That is so, it is said, because the application for the warrant named the premises as a dwelling house at 7 Whiting Street, Labrador, and the search warrant itself described the premises as 7 Whiting Street, Labrador. The premises associated with Mr Adamic consisted only of Unit 12 at that address, and that was the unit in fact searched.
The conversation on the morning of 14.8.99
Detective Constable Arron Ottaway gave evidence that he had pulled the accused’s vehicle over after seeing it parked in an area commonly used for drug dealing. The accused was in the driver’s seat; speaking to him through the window was a man who had the appearance of a drug user. Constable Ottaway had previously had some information which led him to suspect that the accused may have been involved in drug dealing. Because he formed a suspicion that a drug transaction was likely to be under way, he turned his vehicle and followed the accused as he departed from the scene. The accused’s vehicle was pulled over. He identified himself to the accused and asked, “Do you have any drugs on you?” to which the accused replied, “Yes, I do.” A search of the accused’s person and vehicle took place, with the results I have already described. At the outset of the search, Constable Ottaway obtained a microcassette recorder and asked the accused to confirm on tape that he had said he had drugs on him, and that he had produced three clipseal bags with white powder in them.
Constable Ottaway then went on to obtain the accused’s personal details before cautioning him and telling him that he had the right to speak to a friend or relative or a lawyer. He did so in the following terms: “Before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything or answer any questions or make any statement unless you wish to do so. However, if you do say something or make any statement it may be later used as evidence. Do you understand this warning?” The accused said, “Yes”.
Constable Ottaway went on: “You have the right to telephone or speak to a friend or relative to inform that person where you are or to ask him or her to be present during questioning. You also have the right to telephone or speak to a lawyer of your choice to inform that person where you are and to arrange or attempt to arrange for the lawyer to be present during questioning. If you want to telephone or speak to any of these people questioning will be delayed for a reasonable time for that purpose. Do you understand that?” Again, the accused assented. Then, Constable Ottaway said, “You’ll be given that option for a telephone call when we get back to the police station at Surfers Paradise.” Having said that, he proceeded to question the accused about the substance in the clipseal bags, and obtained admissions from the accused that it was heroin. Questioning continued as the search of the vehicle was proceeding. The accused denied that some $465 in notes (separate to other money in his wallet) was for drugs or that he had been dealing in heroin. During the course of the search and while being taken back to the police station, the accused was asked a number of times for his address and gave varying answers. He also said that he had purchased 1½ grams of heroin found in his possession for $300 that morning. While driving him back to the police station the police officers answered his mobile telephone. On two occasions, two persons apparently wished to purchase drugs.
So far as the first part of this conversation is concerned it is clear that it occurred while the police were exercising a power under s 26(1) of the Police Powers and Responsibilities Act to detain and search a person reasonably suspected to have an unlawful dangerous drug. For the period of the search of Mr Adamic’s person, it would follow he was not “in custody” for the purposes of Part 12 of the Act dealing with safeguards for suspects. That is because s 94(2) has the effect of excluding from the definition of “in custody” contained in subsection (1), circumstances in which the following powers are being exercised:
“(a) Power conferred under any Act or law to detain and search
the person; or(b) Power conferred under an Act to require the person to give information or answer questions.”
It seems reasonably clear that the initial conversation between Constable Ottaway and Mr Adamic in which the former asked whether the latter had any drugs, and the continuing taped conversation in which he was asked to confirm that statement and the location of three clipseal bags, (to be found at p 261 of exhibit G) occurred while his person was being searched. Hence the requirements of s 95 of the Act had no application.
Once the search of Mr Adamic’s person had ceased, however, there is no reason to suppose that he was not “in custody”. Section 95, subsections (1) and (2), provide as follows:
“(1) Before a police officer starts to question a person in custody for an indictable offence, the police officer must inform the person he or she may -
(a)
telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and
(b)
telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.
(2) The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1).”
| [8] | Section 66(1) of the Police Powers and Responsibilities Regulation 1998 sets out a form of advice with which a police officer must substantially comply: |
‘You have the right to telephone or speak to a friend or relative to inform that person where you are and to ask him or her to be present during questioning.
You also have the right to telephone or speak to a lawyer of your choice to inform that person where you are and to arrange or attempt to arrange for the lawyer to be present during questioning.
If you want to telephone or speak to any of these people, questioning will be delayed for a reasonable time for that purpose.
Is there anyone you wish to telephone or speak to?’.
In the present case it is to be noted Constable Ottaway did not ask the accused if there was a person to whom he wished to telephone or speak. Instead, he was told that the option would be given at a later time.
Constable Ottaway said that he did not consider it appropriate in the situation for the accused to make a phone call, and he did not give him the option of doing so. He referred to s 106 of the Police Powers and Responsibilities Act which excuses non-compliance with s 95 if a police officer reasonably suspects compliance is likely to result in evidence being concealed, fabricated or destroyed. Constable Ottaway had said that he feared such a result. He had previously had the experience of a solicitor innocently passing on a message from the accused which led to destruction of evidence. However, I would find difficulty in concluding that any suspicion in this regard was reasonable, particularly given that the accused was permitted to speak to a solicitor that afternoon before his premises had been located and searched. It does not appear therefore that any qualm on the part of Constable Ottaway in this regard was consistently held.
Although Mr Adamic was cautioned and advised of his rights to speak to a friend, relative or lawyer and that if he wished to do so “questioning will be delayed for a reasonable time for that purpose”, he was not asked what his wishes were, and questioning was not delayed. Having told him what his rights were, including the right to telephone a solicitor, Constable Ottaway effectively negated that advice by making it clear that the option of contacting a solicitor was not presently available. He then proceeded to ask him a number of questions during the search of the car and the ride back to the Surfers Paradise police station. There was, in my view, a contravention of s 95.
Mr Cuthbert for the accused says that the questioning in breach of s 95 cannot be justified and should be excluded. Mr Weston for the Crown says that the accused had been warned and advised that he would have the opportunity to contact solicitors and nonetheless proceeded to answer questions. He did so, Mr Weston says, selectively, making denials at various points. Considerations of fairness did not therefore require exclusion of the answers.
I am however, satisfied that the advice provided to Mr Adamic by Constable Ottaway was such as to create the impression in him that he had no right at that time to seek the advice of a solicitor While there is nothing to suggest that the police officers on this occasion were engaged in any deliberate attempt to circumscribe Mr Adamic’s rights, the manner in which the right to call a solicitor was put to him, so as effectively to create the impression that it could not be exercised until the party arrived at the police station manifested at best a careless disregard of the section 95 requirements. It is fairly described as a “cutting of corners”; there was no reason that Constable Ottaway could not have contacted a solicitor nominated by Mr Adamic at the scene; and questioning could, in any case, have waited until they arrived at the police station and he had had the opportunities contemplated by s95(1) .
While, having regard to other factors identified as relevant in Bunning v Cross (1978) 141 CLR 54 at 79 the evidence is cogent and the charge a serious one, it seems to me that this is a proper case for exclusion of the conversations which took place at the scene of Mr Adamic’s apprehension and during the journey back to Southport. That exclusion does, not however, extend to questions asked of Mr Adamic as to his correct address, which were legitimately asked pursuant to s23(2) of the Act. Apart from the issue as to whether he was in custody when he was being questioned for the purpose of establishing his address, I see no unfairness in allowing evidence of such questions and answers, when a solicitor’s advice must have been that he was compelled to give that information.
The conversation held at 16.25 on 14 August 1999
This conversation, consisting largely as it does of hearsay assertions which in the main are not acceded to by the accused could not, regardless of questions of compliance with the Police Powers and Responsibilities Act, be admitted in any event.
The conversation held at 15.25 on 15 August 1999
After the search of the unit at White Street, Labrador, Constable Ottaway approached the accused at the watch-house. He reminded him of the earlier caution and continued,
“You have had the option and you have taken the option of telephoning your solicitor and you’re going to have that option again in a moment. I am going to ask you some questions and advise of a few things that have occurred today. Do you understand that?”
He went on to ask for Mr Adamic’s particulars once again and then to advise him that the search warrant had been executed. He asked whether the accused knew the address at Whiting Street, Labrador and obtained the concession from the accused that he stayed there from time to time. Detective Ottaway went on to ask who paid the bills at the premises, including the Energex account (of which a copy in the accused’s name had in fact been found during the course of the search). The accused maintained that his friend Anita paid the account; but upon it being put to him that it was in his name said that it might have been transferred. Detective Ottaway then told him what had been found by way of cash, heroin and guns at the premises and asked whether the accused could tell him anything about the items. At that point the accused indicated that he had nothing to say and did not wish to be interviewed without his solicitor present.
Mr Cuthbert submitted that Constable Ottaway had once again breached s 95 by proceeding to question without giving the accused a real opportunity to contact his lawyer. Mr Weston, on the other hand, submitted that the accused had been made aware of his rights both on that day and the preceding day and, in fact, declined to answer further questions as soon as the police officer began to ask about the items located at the premises. Again, it seems to me that there is some impropriety in proceeding to question without first affording the opportunity to Mr Adamic to telephone his solicitor (as opposed to telling him that he would have that opportunity “in a moment”). However, the accused, by this point, had the benefit of a solicitor’s advice on the previous day and seems to have acted on it on this occasion in halting the questioning when he was no longer willing to answer, and indicating his desire for a solicitor. I do not therefore conclude that he was, in this instance, unaware of his rights in this regard Again too, he had been reminded of the general caution. In those circumstances I do not think that considerations of fairness require exclusion of the conversation.
Evidence obtained on search warrants
Mr Cuthbert argued that the search warrant was invalid because it contained a general reference to the premises at 7 Whiting Street, which was capable of application to a block of twelve units. It was not, therefore, Mr Cuthbert submitted, identified with sufficient particularity.
Sections 28 and 29 of the Police Powers and Responsibilities Act read in combination make it clear that a place to be entered and searched must be specified in the warrant. “Place” is broadly defined in the Dictionary contained in Schedule 3 to the Act to include “premises” and “a place held under 2 or more titles or owners.”
The case has a good deal in common with that considered by the Court of Appeal in R v Edwards (unreported CA No 35 of 1998, 25 August 1998). In that case a search warrant had been obtained in respect of premises described as “lot 300, Old Palmerston Highway, Millaa Millaa”. In fact, the land had unknown to police, been previously subdivided into two lots, one of which was occupied by the appellant’s former wife, who was not said to have been connected with the offence in question (production of cannabis). The warrant was challenged on appeal against conviction on the basis that the address referred to was incorrect. However, as the court pointed out, it could be said of the land known as lot 300 Old Palmerston Road, that it was occupied by the appellant although it was also occupied by another. The court went on to say:
“Even if there had been some technical insufficiency of the description of the land to which the warrant applied, the conduct of the police was fully and satisfactorily explained, and if the issue had been taken at the trial, then on the Bunning v Cross principle, the court’s discretion must clearly have favoured the admission of the relevant evidence. Although full weight should be given to the need for the sufficiency of compliance with the prescribed conditions of a search warrant, since they permit infringement of the ordinary citizen’s right to the privacy of his or her premises, there is no absolute rule as to identification of premises and no necessary exclusion of evidence obtained by means of a defective warrant. The premises need be identified only with reasonable particularity and in a criminal trial the evidence obtained by means of a search warrant that is defective simply because the address is incorrect will not be excluded if the error is of a technical nature only and without any police misconduct” (at p 8).
It seems to me that the last statement is particularly apposite here. Strictly speaking, the accused did occupy premises at 7 Whiting Street, Labrador. It was not a situation in which an entirely different set of premises was specified in the warrant, as was the case in R v Atkinson [1976] Crim LR 307, relied on by Mr Cuthbert. Indeed, at the end of the not of that decision, one finds the following “The present decision did not apply to misspellings, or trivial errors in the description of premises. Errors of that type would not necessarily invalidate a warrant.”
In all the circumstances, I doubt that the failure to give the unit number is of such significance as to render the warrant invalid. If that were the case, the search has nonetheless been approved retrospectively under s31 by the order of the magistrate subsequently obtained.
Even were the search not authorised either by a valid warrant or the s31 order, the fact that the premises in this case were not more particularly described was not the result of misconduct by the police but rather a combination of the result of the address search on the telephone number and the need for haste. Even if it could be said that the warrant was defective as a result, it is not a case, having regard to what was said in Edwards, in which exclusion of the evidence would be warranted.
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