R v Borg
[2012] VSC 26
•6 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 99 of 2011
| THE QUEEN |
| v |
| LEONARD BORG |
---
JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2012 | |
DATE OF RULING: | 6 February 2012 | |
CASE MAY BE CITED AS: | R v Borg | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 26 | |
---
CRIMINAL LAW – Pre-trial ruling – Search warrants – Section 465 Crimes Act1958 – Magistrates’ Court Act 1989– Evidence Act 2008 – Evidence (Consequential Provisions) Act 2009 – Evidence (Miscellaneous Provisions) Act 1958 – Affidavits of investigators not sworn in accordance with requirements – Evidence obtained in contravention of an Australian law – Section 138 Evidence Act 2008 – “Probative Value” – Discretion exercised in favour of admission of the evidence.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Tom Gyorffy SC Mr Mark Gibson Ms Raelene Sharp | Office of Public Prosecutions |
| For the Accused | Ms Carmen Randazzo SC Ms Samantha Poulter | Theo Magazis & Associates |
HIS HONOUR:
Leonard Borg is charged with the murder of Peter Rule. The Crown case is that the accused murdered Rule on 15 November 2009 at Campbellfield. The accused has been arraigned and pleaded not guilty, and senior counsel for the accused has indicated that the accused will deny any involvement in the death of the deceased.
A number of pre-trial issues have arisen. The first of them concerns the admissibility of certain evidence obtained pursuant to the execution of several search warrants issued by Magistrates pursuant to s 465 of the Crimes Act 1958. This issue particularly concerns the completion of affidavits offered to Magistrates by two Homicide Squad investigators in support of the issue of those search warrants. This issue only arose in this case because of certain disclosures by police to the Office of Public Prosecutions and, in turn, disclosure to counsel for the accused. I will return to the significance of that disclosure later in this ruling.
On 11 November 2011, the Victorian Court of Appeal delivered judgement in the matter of DPP v Marijancevic & Ors.[1] As is now well known, that judgment concerned an interlocutory appeal by the Director of Public Prosecutions in relation to a ruling by Judge Montgomery in the County Court. During the pre-trial hearing in the County Court, it emerged that certain affidavits of police in support of warrants under s 81 of the Drugs Poisons and Controlled Substances Act 1981 had not been sworn. Instead, they had been signed without any oath or affirmation being taken. At the conclusion of the pre-trial hearing before Judge Montgomery, his Honour ruled that as a result of relevant affidavits not having been sworn, the evidence obtained pursuant to the issued warrants was evidence that was obtained illegally and, he concluded, should be excluded in the exercise of his discretion pursuant to s 138 of the Evidence Act 2008 (“Evidence Act”). In an interlocutory appeal by the Director of Public Prosecutions, the Court of Appeal granted leave to the Director to appeal but dismissed the appeal.
[1][2011] VSCA 355, hereafter referred to as “Marijancevic”.
Victoria Police and the Office of Public Prosecutions have made efforts to identify other cases where this issue has arisen. This case before me is one that has been identified through that process. In this case, as I will shortly describe, four affidavits prepared in support of obtaining search warrants under s 465 of the Crimes Act 1958 were not sworn but simply signed. It is also likely that those affidavits were not signed in the presence of the person before whom they purported to be sworn.
It is necessary for me to deal with the consequences of that by first determining whether, in the circumstances of this case, the evidence that was obtained under the resultant warrants was improperly or illegally obtained. That is not conceded by the Director of Public Prosecutions and so must be established by the accused. If impropriety or illegality is established, then the onus shifts to the Director of Public Prosecutions to establish that, notwithstanding that conclusion, the evidence should be admitted pursuant to the considerations in s 138 of the Evidence Act.
Factual Summary
In order to understand the significance of the evidence gathered under the warrants and to provide a context for the issues arising as a result of the affidavits being unsworn, it is necessary for me to briefly summarise the way in which the case against the accused is put.
The Crown case will be that the accused and the deceased met in 2005. For a time in 2008 they resided at the same premises. The deceased introduced the accused to his friends Daniel and Kathleen Harris.
The accused worked as a boiler maker at Wallan Engineering and there met Michael Spiropoulos who was an apprentice at that business. It would appear that the accused was concerned with hydroponic cannabis crops. The Crown claim that he established a crop in premises at 1 Rosanna Court, Craigieburn, some time in 2008. The witness, Daniel Harris, will say that he saw that crop when he was at the premises on one occasion. In March 2009, the anonymous police phone number, Crime Stoppers, received information that there was a cannabis crop at those premises. Police raided the premises on 24 August 2009. Nothing was found.
Harris, however, will give evidence that after the police raid, he was told by the accused that the accused believed the deceased had informed the police about the cannabis crop and that they had a discussion about that.
The Crown say that, motivated by his belief that the deceased had informed on him and the need to take measures to prevent him from doing so again, together with a personal dislike that he had for the deceased, the accused determined to murder Rule. The Crown case will be that shortly after 8:35 pm on 15 November 2009, the deceased was driven by the accused from his home to a factory at 22 Glenbarry Road, Campbellfield. Once inside the factory, it is alleged that Borg shot Rule with a .22 semi automatic rifle. It is claimed that he fired 10 shots. The shooting allegedly occurred near the toilet block inside the factory.
At about 9:00 pm on that day, Borg is alleged to have called the witness Michael Spiropoulos. Spiropoulos will be a very important Crown witness. At the time of the phone call he was at his home. Spiropoulos will say that Borg instructed him to purchase bleach, garbage bags and rags and take them to the factory. He did as he was requested, purchasing the items from Woolworths in Craigieburn and taking them to the Campbellfield factory. When he arrived, Borg told him to wait in the office and not to look in the area of the ladies toilet. With the body of Rule already in the back of Borg’s blue Volvo motor vehicle, Borg then asked Spiropoulos to help him clean the area where Rule had been shot. A very careful cleaning exercise was completed, during which they collected nine cartridges but could not locate the 10th. Having cleaned the factory they then placed everything they had used in Borg’s Volvo sedan. They then drove in their separate vehicles to a factory at 20 Ivanhoe Court, Thomastown. They then went together to a service station and purchased a 15 litre container of petrol and a number of bags of firewood for the purpose of burning Rule’s body.
The following day, the Crown will say, Spiropoulos returned to the factory where he saw the accused burning the body in a 44 gallon drum. According to Spiropoulos, Borg told him in some detail how he had killed Rule. During the following days, the two men purchased more items to be used in the destruction of Rule’s body, including an electric chain saw, a hatchet, citronella oil, a black tub and hydrochloric acid.
At the conclusion of the burning process, identifiable parts of Rule’s body were crushed and the remains were then placed in the black tub to which the acid was added. The two men then drove Spiropulos’ vehicle down the Great Ocean Road, disposing of the contents of the tub in the ocean and some garbage bags in the scrub.
After disposing of the remains they were wet so they went to a men’s wear shop in Lorne where they purchased fresh clothing, including a pair of red shorts said only to be available at that particular shop.
After returning to Melbourne and, in particular, to the factory in Thomastown, the two men unloaded the tub and remaining garbage bags and cleaned the Volvo and Spiropoulos’ Nissan. They removed the boot mats and, because Rule’s body had been dismembered on the floor of the Thomastown factory, that floor was also cleaned and repainted with blue paint.
On 21 November 2009, the accused left Australia for Malta and Spiropoulos was left in charge of a cannabis crop at the Thomastown factory. While he was away, Borg asked Spiropoulos to dispose of the blue Volvo, which he did.
The Crown case is that after Borg returned on 15 January 2010, he and Spiropoulos disposed of some other related items by burning them and dropping them in a Campbellfield rubbish disposal bin.
On 19 January 2010, police investigating Rule’s disappearance spoke to Borg. He made a statement in which he described when he last saw Rule and gave an explanation as to why Rule might have disappeared. He also gave what the Crown say is a false account of his movements on 15 November 2009.
Spiropoulos went to the Craigieburn police station on 5 April 2010 and confessed to his involvement, providing police with a great deal of information about what he said had occurred. Following further investigations, Borg was arrested and charged with Rule’s murder on 23 April 2010.
The case against the accused is therefore a combination of direct evidence from Spiropoulos coupled with a body of circumstantial evidence which appears to be broadly consistent with Spiropoulos’ description of what occurred.
The defence response filed on 22 December 2011 clearly indicates that the accused denies murdering Rule or being involved in his disappearance. Indeed, I have been informed by Ms Randazzo SC for the accused that the defence case is going to be that in addition to Michael Spiropoulos, those directly involved in the disappearance of the deceased were two Crown witnesses – Danny Harris and Philip Lancaster.
The Warrants, Affidavits and the evidence about them
Having obtained detailed information from Spiropoulos both in his record of interview and in a later statement, police obtained a number of search warrants pursuant to s 465 of the Crimes Act1958. Those warrants were executed by Homicide Squad investigators and they are summarised in the following table:
DATE ISSUED PREMISES AFFIDAVIT 14 April 2010 Driven Engineering, 22 Glenbarry Road Campbellfield. Warrant executed by Detective Senior Constable Rowe on 15 April 2010 The application for this warrant was supported by an affidavit of Detective Inspector Edwards dated 14 April 2010. The affidavit was signed by Edwards and an oath was taken by him in the presence of Detective Senior Sergeant Snare. 22 April 2010 65 Arcadia Avenue, Mickleham. Warrant executed by Detective Senior Sergeant Snare on 23 April 2010 22 April 2010 20 Ivanhoe Court Thomastown. Executed by Sergeant Upton on 23 April 2010 22 April 2010 Storage Unit 7C, 72 Kyabram Street Coolaroo. Warrant executed on 23 April 2010 by Detective Acting Sergeant Ronke. The application for these three warrants was supported by an affidavit of Detective Senior Sergeant Iddles dated 21 April 2010. The affidavit was signed by Iddles but no oath was taken. 28 April 2010 52 Technology Drive Sunshine West. Warrant executed on 29 April 2010 by Detective Senior Constable Rowe. The application for this warrant was supported by an affidavit of Detective Senior Sergeant Iddles dated 28 April 2010. The affidavit was signed by Iddles but no oath was taken.
(The Crown do not contend that any evidence of value was obtained pursuant to this warrant. If the matter were being determined as an exercise of judicial discretion, the Crown indicated that they would not seek to uphold this warrant[2]).6 May 2010 20 Ivanhoe Court Thomastown. Warrant executed on 7 May 2010 by Detective Acting Sergeant McLean. The application for the warrant was supported by an affidavit of Detective Acting Senior Sergeant Cheesman dated 6 May 2010. The affidavit was signed by Cheesman but no oath was taken. 19 May 2010 National Australia Bank for banking records. Warrant executed on 25 May 2010 by Detective Senior Constable Simpson. 19 May 2010 Westpac Bank for banking records. Warrant executed on 31 May 2010 by Detective Senior Constable Simpson. The application for both warrants was supported by an affidavit of Detective Acting Senior Sergeant Cheesman dated 18 May 2010. The affidavit was signed by Cheesman but no oath was taken. [2]Submissions as recorded in transcript at 131.
The affidavits in contention during the debate before me were therefore the two affidavits sworn by Detective Senior Sergeant Iddles and the two affidavits sworn by Detective Acting Senior Sergeant Cheesman.
The evidence on the voir dire consisted of statements that the relevant police had made concerning the manner in which their affidavits had been sworn, and viva voce evidence.
Senior Sergeant Iddles gave evidence that he has been a member of the Victoria Police for some 33 years and has spent much of that time in the Homicide Squad where he holds the rank of Senior Sergeant. He is a very experienced police officer. He said in his statement that he ensured the information in his affidavits of 21 and 28 April 2010 was correct and then signed the documents without swearing them in any way. He then provided the signed affidavits to Detective Inspector Edwards who was the officer in charge of the Homicide Squad and who was expected to also sign the affidavits as the person before whom they were purported to have been sworn. Iddles said that the affidavits were later returned to him, signed by Edwards.
In his statement, Senior Sergeant Iddles said that since 1994, when he rejoined the police force after being away for five years, he has not sworn an affidavit or asked anyone to swear an affidavit in his presence. He said, “it became custom and practice that the affidavits were not sworn”.[3]
[3]Additional trial materials at 1290.
In his evidence before me in relation to the first of the affidavits, Detective Senior Sergeant Iddles was asked by the prosecutor, Mr Gibson, the following:[4]
[4]Transcript at 55.
Can I ask this: when you came to sign that affidavit, Exhibit H, what obligations did you feel were upon you in terms of the accuracy of the material within that affidavit?---To ensure that the information contained in it was truthful and accurate.
In terms of what you say as to your conscience, whether you were bound by your conscience when you came to sign that affidavit?---When I signed the affidavit, I was signing it believing that all the information in it, I'd checked that it was accurate, that it was truthful, and that had I had had something in that affidavit which was wrong, it could have led to criminal charges, such as attempt to pervert the course of justice, so I took it seriously about signing it.
As to the second affidavit, he was asked:
Exhibit N. Again, what do you say about what obligations you faced within your mind when you signed that affidavit? ---That I made sure prior to signing it that the information contained in it was accurate, correct and truthful.
Did you feel bound by your conscience to tell the truth?---Yes.
Was that the same with Exhibit H?---Correct.
In answer to questions from me, Detective Senior Sergeant Iddles said that although he considered he was amenable to being charged with the offence of attempting to pervert the course of justice if the contents of his affidavit were false, he did not think about whether he also risked being charged with perjury.
Iddles was asked by me about his awareness of the nature of the document:[5]
HIS HONOUR: You used the word "affidavit". You knew that an affidavit was being signed? --- Yes.
Did you know that an affidavit was a document that was a document to be sworn by the deponent? --- Yes, I did.
Did you see on the first page of the affidavit that it is said that you "make oath and say", and so on? --- Yes.
Did you know what those words meant in the context of this document? ---I probably honestly didn't think about it. I've thought about it probably in the context of signing a statement, "I hereby acknowledge that the contents are true and correct." Whilst the word says "oath", I still made sure that the information was accurate. It became, what I say, custom and practice not to swear them, so it was about making sure the information was accurate, so you made sure that the address was right, you didn't sit there and read "on oath" all the time.
But I take it you now accept that the affidavits that you signed turn out not to have been sworn?---Correct, and I say that.
[5]Transcript at 57.
When Iddles was cross examined on behalf of the accused, he was questioned about the steps he took to ensure that the information in the document was correct. In answer to those questions, among other things, he said that because he was required to oversee the investigation he read all the statements made by witnesses before he signed the affidavits.[6]
[6]Transcript at 60.
It was also made clear in cross examination that Iddles signed his affidavits but not in the presence of the person before whom they were each purported to have been sworn. Iddles was asked about earlier times when it was necessary to go to a Magistrate in person and, in support of an application for a search warrant, take an oath and give evidence about the basis on which a warrant was sought.
Iddles gave the following further evidence about his assertion in his statement that “it became custom and practice that the affidavits were not sworn”:[7]
[7]Transcript at 69-70.
I've been at the Homicide Squad now for 16 years. I have never sworn an affidavit. I have never been asked to swear an affidavit. I have never seen anyone swear an affidavit in our office. My view was that once we went to faxing them through to the court, it became custom and practice, in other words, accepted practice, that they were sent off, they were made sure that they were truthful and accurate and they were sent off but they weren't sworn.
You weren't troubled by the wording, the fact that it appeared to contain a requirement that you make oath before you signed the affidavit?---At that particular time and through until now, no.
Was it ever the subject of discussion or instruction? Were members of the Homicide Squad, for example, say younger police coming to the squad, given an instruction as to what the requirements were?---No, and I have never been spoken to by anybody in the crime department in 17 years about my practice.
But you're an experienced policeman. Did anyone in recent – say the last 10 or 15 years, someone who was new to the Homicide Squad, come to you and say, for example, "Look, I think we should get a warrant to search a particular set of premises. What is the procedure here for doing that?" No sort of inquiry like that?---That was a common inquiry, prepare an affidavit. If it's a 465 warrant, it has to be a senior sergeant, "Give me the affidavit, I'll read it and make sure it is accurate," and then we would arrange it, but not me saying, "Listen, this needs to be sworn."
You've been around a long time. Are you saying that, in effect, what's happened is that because of the change of procedure, an impression was created that it was no longer necessary for an oath to be taken before an affidavit was signed? Is that what - - - ? ---What I'm basically saying, in essence, is yes, and I think - well, I accepted it, and I know the majority of the other members accepted that by checking it, making sure it was accurate, it was just similar to the jurat on a statement or a stat dec without swearing it, and we didn't look at "and sworn", we looked at is the address right, is the information in it correct, and then it was faxed off.
Iddles added that if his procedures were not up to scratch he would have expected Detective Inspector Edwards (as he then was) to “pull [him] aside and say, Ron this is not up to scratch. Start swearing them”. That, he said, never occurred.[8]
[8]Transcript at 71.
Asked by counsel for the accused whether he had ever turned his mind to the likelihood that if a Magistrate had been aware of the circumstances in which the affidavit was signed rather than sworn, the warrant would not have been issued, he said he did not.
It is appropriate to deal next with the evidence of Detective Acting Inspector Cheesman who has been a member of Victoria Police for some 25 years. He said he knew from the beginning that there was a requirement to swear affidavits but, he said, “for the majority of [his] career [he] has not met this requirement”. He said he had never been asked to swear an affidavit by another police officer and has never seen another police officer swear an affidavit in his presence. The following, somewhat remarkable, passage then appears in his statement:
I can only explain this by saying that perhaps, due to our organisational culture, we don’t view the swearing component as an important part of the process. We rely on the content, we have knowledge of the content and we trust our colleagues who present it.
Detective Acting Inspector Cheesman then referred in his statement to the two affidavits he swore on 6 May 2010 and 18 May 2010. Cheesman did not prepare either affidavit but he said that he read them both to satisfy himself that the content was true and correct. In each case he signed the affidavit and handed it to Edwards in whose presence it purported to have been sworn. No oath was taken.
During the voir dire, the effect of Cheesman’s evidence was consistent with his statement. Affidavits, he said, were never sworn but he always ensured that the content was correct. He was then asked, as follows:[9]
HIS HONOUR: Why not just swear it? If it says "make oath and say", why not swear it? It is clear that it requires some sort of oath, isn't it?---I agree with you wholeheartedly, Your Honour, but as my own practice, we just don't do it and I have no explanation why we don't do it.
Why not?---From the time I was a junior constable, I was never asked to do it, it wasn't part of our daily practice. You would simply sign the content of it and discuss it. I don't know whether we get embarrassed in front of each other that we have to go through the formality of swearing, I don't know whether it is the fact that maybe society has changed and we don't put emphasis on the oath part of the swearing. Generally in society today, when we sign a document for other purposes, we are relying that the content is truthful and we're bound by our signature to that document. Perhaps all these things and the culture of the police force, where there's been no requirement, has contributed to the failure of practice.
[9]Transcript at 107.
He then said, “I'll be honest. We don't see the oath as an important part of the process.” On any view this is a most unfortunate and thoroughly misguided attitude and such an attitude is capable of having broader consequences. A particular formality of swearing to the truth of the document, which these police officers must have believed was required,[10] was simply dispensed with. It was almost as though they were saying that they were members of Victoria Police and they believed that these documents were true and correct, and that that should be enough.
[10]I will shortly deal with the question of whether as a matter of law it was required (see [59] and ff., below).
However, as to his perception of the consequences of not telling the truth in such a document, he said:
MR GIBSON: Mr Cheeseman, what was your belief as to whether you were bound by your conscience to tell the truth at the time you signed those affidavits?---There is no doubt that I am bound by the contents of the document that I sign and it is truthful. We often include in affidavits all evidence that goes before the court, before a magistrate. That could be evidence that supports our application and evidence that does not support our application, because the application is simply a matter for the court to decide on. So we include all the evidence and we sign it as being true and correct and we know the consequences of putting up a false document to the court.
Which are?---Which are - I guess if the content is incorrect, we're looking at perverting the course of justice. If we then give that evidence in court under oath, which we do quite often, then it becomes a more serious matter of perjury, so we're well aware of that.
In the course of cross-examination, Cheesman said that he “had never seen a police member swear an affidavit”.[11] He said that the issue was never discussed as far as he knew and that it “really [was] a silent issue”.[12] He accepted that the police attitude was wrong but said that they did not mean to deceive. He acknowledged that a Magistrate reading affidavits such as these would have relied on the apparent swearing of the document although he said he regarded himself as bound by the content of the document.
[11]Transcript at 112.
[12]Transcript at 114.
Acting Superintendent Edwards is also a very experienced member of the Victoria Police having been a member for some 31 years. He had also made a statement about which he was questioned on the voir dire. At the time these affidavits were prepared and signed he was the Detective Inspector in charge of the Homicide Squad.
Edwards first referred to his affidavit of 14 April 2010 which, in all likelihood, was sworn correctly – it is not contended otherwise. In his statement he said he swore the affidavit in the presence of Detective Senior Sergeant David Snare. Though not called as a witness during the voir dire, in his statement (which was tendered as an exhibit by consent) Snare agreed that is what occurred.
In evidence before me when asked about the procedure he followed, Edwards said:[13]
So when you say you swore it, what do you mean by that?---To say the words, "I swear by Almighty God that the contents of this, my affidavit, is true and correct."
But you were not holding a Bible at the time?---No.
[13]Transcript at 86.
It is clear that at the time this affidavit was sworn there was no requirement to involve a religious text in the process.[14]
[14]Evidence (Miscellaneous Provisions) Act 1958, s 103.
As to the affidavits of Senior Sergeant Iddles on 21 and 28 April 2010, Edwards said in his statement that he agreed he had signed them but he could not be certain whether the affidavit was left for him on his desk or handed to him. After signing he could not say whether they were returned to Iddles personally or left for him. His memory was in the same condition in relation to the two affidavits of Cheesman, dated 6 and 18 May 2010.
Curiously, the effect of Edwards’ evidence was that he regarded himself as required to take an oath when he was the deponent of an affidavit but did not insist that others do so when he was requested to take the affidavit of another police officer. When asked why that was the case, he said:[15]
I think my main priority was to make sure everything was true, nothing was excluded from the document. In hindsight, I wish I had, but my main priority was everything was true in the document and the document was signed.
[15]Transcript at 101.
This is not a satisfactory explanation. Making sure everything was true was not a requirement that was mutually exclusive to taking an oath. Both are required and a police officer of Edwards’ seniority and experience must surely have known that. However, unlike the other police officers that gave evidence before me, Edwards said that some members did utter the oath and some did not. He estimated the breakdown between the two groups at “50/50”.[16]
[16]Transcript at 103.
Evidentiary Conclusions
In my opinion each of these police officers realised that an oath was necessary to be sworn in completing these affidavits. In the case of Edwards, when he was the deponent, he gave effect to that realisation. However, he did not insist on it when requested by other members to take their affidavits. In my view each of Iddles and Cheesman realised that an oath was required but both succumbed to what they described as some form of culture that the ritual of speaking the oath in the presence of a person authorised to take the affidavit was not important and could be dispensed with. I accept that they held that view for a long time and believed that it was a common practice within Victoria Police. It may well have been. It may be that such a belief was encouraged by amendments in 1989 which no longer required police investigators to attend personally upon a Magistrate and give evidence in support of the issue of a search warrant. Since September 1990 it has been a permitted practice for an application for a warrant to be made on affidavit and sent by facsimile machine to the Court.[17]
[17]Magistrates Court Act 1989, s 75(3).
I accept, and there was no serious challenge to this conclusion, that both Iddles and Cheesman went to some trouble to ensure that what was contained in the document was correct and accorded with the information that the Homicide Squad then had about this case. No attempt was made on behalf of the accused to demonstrate otherwise. I also accept that they regarded themselves as bound by the contents of the documents and that in the event that they contained false information both Iddles and Cheesman were of the view that they exposed themselves to the risk of an allegation that they had attempted to pervert the course of justice.[18]
[18]Transcript at 55 & 108.
In those circumstances, there appears to have been no advantage gained by not swearing these affidavits other than avoiding a minor inconvenience in doing so.
Whether the evidence obtained under the warrants was improperly or illegally obtained
Unlike the circumstances in Marijancevic where the issue did not arise, in this case the issue of whether or not the evidence obtained pursuant to the search warrants in contention was obtained “improperly or in contravention of an Australian law”[19] requires resolution. I must consider whether it has been established that the procedure followed by both Detective Senior Sergeant Iddles and Detective Acting Inspector Cheesman in this case were in breach of the requirements of the Crimes Act 1958 in relation to the issue of search warrants. The onus on this question is on the accused and, in my opinion, it has been discharged.
[19]Evidence Act2008, s 138(1)(a).
Mr Gyorffy SC, on behalf of the Director of Public Prosecutions, essentially argued that although it was clear on the evidence that Iddles and Cheesman did not swear an oath as to the truth of the documents they signed, from 1 January 2010 there was no legal requirement for them to do so. This submission was based on an analysis of the development of the relevant legislation, in particular the various iterations of the Victorian Evidence Act. As will become clear, I reject that submission and consider it is without merit.
In support of his submissions, Mr Gyorffy referred to earlier iterations of the Evidence Act. In particular he pointed out that s 93 of the Evidence Act 1928 specified the procedure by which an oath was taken, including by quoting the required opening words, “I swear by Almighty God that…”. Those provisions were repeated in s 100 of the Evidence Act1958.
Mr Gyorffy then referred to the Evidence (Consequential Provisions) Act 2009. That Act revises certain statutory provisions as a consequence of the introduction of the Evidence Act 2008. The result is that in the Evidence (Miscellaneous Provisions) Act 1958, Part IV now contains amended provisions in relation to oaths, affirmations, affidavits and declarations.
I will return to these provisions in more detail shortly but the effect of them, according to Mr Gyorffy’s submissions, is that they repealed the requirements of the earlier legislation and split the subject matter into two. The conclusion he urged from those provisions was that the current legislation does not describe how the oath is to be taken and that “all that is left is a ceremony”.[20] What Mr Gyorffy describes as an absence of procedure and requirements leads to the conclusion that merely signing the document in a way which acknowledges the truthfulness of it is sufficient. If the deponents were of the view (and they were) that they were bound by the contents of the affidavits, on his reasoning, that is enough. “Bound” in that context, Mr Gyorffy argued, meant an understanding that it was a serious undertaking and they were required to tell the truth. If they were of that view then that amounts to “swearing” the document.[21]
[20]Transcript at 134.
[21]Transcript at 141.
Mr Gyorffy referred to s 24 of the Evidence Act in support of the general contention that the requirements of an oath have been diminished to the point that a signature on the document accompanied by a belief that the particular individual is bound by the contents of the document is sufficient to treat the document as having been “sworn”. Section 24 is in Division 2 of the Act dealing with oaths and affirmations. It is true, as Mr Gyorrfy submitted, that under s 24:
(1)A person may take an oath even if the person's religious or spiritual beliefs do not include a belief in the existence of a god.
(2)Despite anything to the contrary in this Act, the form of oath taken by a person—
(a)need not include a reference to a god; and
(b)may instead refer to the basis of the person's beliefs in accordance with a form prescribed by the regulations.
However he did not refer to s 21 which provides:
(1)A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.
(2)Subsection (1) does not apply to a person who gives unsworn evidence under section 13.
(3)A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(4)The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.
Thus, under these provisions an oath or affirmation must be taken by a person who is a witness in a proceeding even although that person has no spiritual belief and a religious text is not required to be used, unless they are permitted to give unsworn evidence.
The next matter that Mr Gyorffy dealt with was whether, in effect, having followed the procedure they did, Iddles and Cheesman would be liable to be found guilty of perjury (as opposed to attempting to pervert the course of justice) if it were demonstrated that their affidavits contained lies and, in his submission, they would. Having reached the conclusion I have, which is that the relevant law requires an oath or affirmation to be uttered by each deponent in the presence of another authorised person, I am not persuaded that I need to resolve the issue of whether they could be charged with perjury if deliberate lies formed part of these documents.
I would observe at this point that it was well established at common law[22] and by statute[23] that an oath is binding even if the person had no religious belief or did not have a religious belief of a particular kind.[24] Likewise, irregularities such as to the place and date of the declaration appearing in the jurat to an affidavit[25] or failure to use the usual words in swearing an affidavit[26] will not necessarily represent a bar to conviction for perjury. In R v Sossi,[27] a case on which Mr Gyorffy relies, it was sufficient that the person taking the affidavit had asked the deponent whether they swear the contents of the affidavit are true to the best of their knowledge and belief and they agreed:
The party to whom those words were addressed should have appreciated that he was being asked to make an oath that the contents of the affidavit were true to the best of his knowledge and belief. The very words of the affidavit by the use of the word “sworn”, in the jurat and the opening words “make oath and say as follows” reinforce further the solemnity of the occasion. The word “oath” is a common word in ordinary every language the meaning of which would be reasonable clear to the ordinary person as being an appeal to God, or to some reverend person or thing, to witness the truth of a particular statement. The words used by Manolas (the commissioner) are capable of being understood as the act of administering an oath and this is particularly so when reference is made to the passages of the affidavit to which we have already referred. There is also sufficient evidence to suggest Sossi (the deponent) assented to the form in which the oath was administered to him as binding him to tell the truth.[28]
[22]Omichund v Barker (1744) 125 ER 1310; R v Deleph Sing (1901) 18 WN(NSW) 81; R v Kemble [1990] 1 WLR 1111.
[23] Evidence (Miscellaneous Provisions) Act 1958, s 103 and its predecessors.
[24]Cf R v Singh [1958] 1 WLR 143 where there was a directed acquittal on a charge of perjury on the basis that an affirmation was administered to the defendant contrary to the requirements of the relevant legislation.
[25] R v Shing Duck (1901) 7 ALR(CN) 96.
[26] R v Sossi [1986] WAR 163.
[27] Ibid.
[28]Ibid at 166-167.
However such cases do not address the situation where an oath has not been verbalised at all. In a Queensland Full Court decision concerning the swearing of an affidavit before marriage in a bigamy trial, Real J stated (in obiter):
I think that if any form is used, and the person accepts the form when it is tendered to him by way of an oath, for the purposes of giving solemnity to his declaration, the mere acceptance of it involves a declaration that it is binding upon his conscience. There must be some form of oath tendered. The mere signing of a document would not constitute an oath. That document purports to be given on oath and the oath is something outside the document. If the prisoner were prosecuted for perjury, it would be of course at once essential to decide whether or not he had taken an oath.[29]
[29] R v Whitehouse [1900] QLJ 325.
While the affidavits in question in this case each had the standard wording referred to in Sossi and both Iddles and Cheesman still considered themselves bound to tell the truth, in my opinion, and without finally deciding the matter, in circumstances where no oath had been uttered it is by no means clear that they could be prosecuted for perjury if their affidavits had contained knowingly false statements.
Analysis
In this case we are concerned with applications for search warrants pursuant to s 465 of the Crimes Act1958. Although it did not feature in the submissions of Mr Gyorffy, it is necessary to pay some attention to the terms of that section. It provides that:
(1)Any magistrate who is satisfied by the evidence on oath or by affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place—
(a)anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b)anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c)anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant—
may at any time issue a warrant authorizing some member of the police force or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law. (Emphasis added)
The Magistrates’ Court (Consequential Amendments) Act 1989 amended the warrant provisions of both the Crimes Act 1958 and the Drugs Poisons and Controlled Substances Act 1981 to remove reference to ‘an information laid on oath‘ and to substitute the present language of ‘evidence on oath or affidavit’. As noted above, the Magistrates’ Court Act 1989 repeated in s 75 that ‘an application for a search warrant must be supported by evidence on oath or by affidavit’ and allowed for a copy of an affidavit to be transmitted to the Magistrates’ Court via facsimile machine.
The Magistrates’ Court Act 1989 also amended the Evidence Act 1958 to include certain police as persons before whom an affidavit may be taken.
Thus, from 1 September 1990 onwards, police could swear an affidavit in support of a search warrant, they could submit it to the Magistrates’ Court by fax, and they could swear such affidavits before another member of the police force above the necessary rank or in change of a police station.
In my opinion, the alternative of providing that evidence by affidavit was not intended to provide a less solemn means of doing so but rather a more convenient and time efficient process because personal attendance is not required. That alternative was provided with the intention that the information brought before a Magistrate would continue to be information which is sworn to by the relevant police officer, albeit without the requirement for personal attendance and the giving of viva voce evidence. I therefore regard a police officer providing evidence on affidavit to a Magistrate in support of the issue of a search warrant pursuant to s 465 of the Crimes Act1958 as a person who is required to take an oath for that purpose.
In George v Rockett,[30] the High Court made the following observations about the significance and effect of search warrants:
A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s. 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol. 10 (1938), pp. 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v. Money; Entick v. Carrington. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986), pp. 1-2.
State and Commonwealth statutes have made many exceptions to the common law position, and s. 679[31] is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
[30](1990) 170 CLR 104 at 111, citations removed.
[31]Of the Queensland Criminal Code.
In Marijancevic, the Court of Appeal referred to what their Honours described as the “endemic” practice of not requiring oaths or affirmations for affidavits supporting the issue of warrants, and made the following observation in relation to search warrants:[32]
An affidavit is the written form of sworn oral testimony. It is an ancient method of providing evidence in court. Until 1989, whenever police needed to obtain a warrant they were required to physically attend court and give sworn oral evidence before a magistrate as to the facts relied on to support the granting of a warrant. This was a clear and long standing indicator of the significance and gravity of obtaining a warrant. The 1989 Act amended the provision to enable evidence to be given orally on oath or on sworn affidavit. The new alternative methods from 1989 onwards did not justify or contemplate a derogation of standards – the evidence was still required to be sworn.
The fundamental role which oaths and affirmations play in our system of criminal law is readily apparent. The requirements of s 81 of the Act are not a mere technical ancillary to obtaining a search warrant. Just as courts proceed upon the basis of testimony sworn or affirmed, so do magistrates issue search warrants on the basis of testimony sworn or affirmed.
A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights.
[32][2011] VSCA 355 at [55] – [57].
Against the background of those statements of principle, in my opinion s 465 of the Crimes Act 1958 contemplates that the “evidence” to be provided to a Magistrate in support of the issue of the warrant must be in a form which has been sworn to by the police officer concerned, whether that be oral or written evidence. In interpreting s 465(1) I read the section to mean, “any magistrate who is satisfied by the evidence [either] on oath or by affidavit…”, both being types of sworn evidence.
Moving to the other relevant legislation concerning what is required for an affidavit, the Evidence (Miscellaneous Provisions) Act 1958 contains a number of provisions concerning the taking of oaths and the taking of affidavits:
101Manner of administration of oaths and affirmations
(1)A person may take an oath, or make an affirmation in accordance with the appropriate form set out in Part 1 of the Third Schedule or in a similar form.
(2)Such an affirmation has the same effect for all purposes as an oath.
(3)An oath or affirmation may be administered to and taken, or made, by 2 or more persons at the same time.
The relevant portion of the Third Schedule for this purpose is:
Form of oath
I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that (followed by the words of the oath prescribed or allowed by law).
Section 123C sets out the requirements for the taking of affidavits. Relevantly, the section says:
123C Affidavits in Victoria how sworn and taken
(1)Affidavits for use in any court or for any purpose or in any way whatsoever authorized by law whether by or under any Act of Parliament or by custom or otherwise may be sworn and taken within Victoria before—
…
(ga)a member of the police force of or above the rank of sergeant or for the time being in charge of a police station;
Sub section (3) provides:
(3)The person before whom an affidavit is sworn or taken must legibly write, type or stamp his or her name and address below his or her own signature where it appears on the affidavit.
Penalty applying to this subsection: 1 penalty unit
Finally, ss 126 and 126A contain the following relevant provisions:
126 Jurat to state where and when oath is taken
Every person authorized by or under this Act to take affidavits before whom any affidavit is sworn or taken shall state truly in the jurat or attestation at what place and on what date the affidavit was sworn.
126A Jurat etc. to affidavit to be prima facie evidence of execution
The signature of a person authorized by or under this Act to take affidavits when appearing in any jurat or attestation to an affidavit shall be prima facie evidence that the affidavit was duly sworn or taken (as the case requires) before the person purporting to have attested the affidavit and on the day and in the place attested to.
I do not accord to the developing legislation the same significance that Mr Gyorffy does. The legislative history indicates that the lack of precision about oaths is not new but does not indicate an intention that the utterance of an oath can be lawfully dispensed with. There has never been a precise legislative prescription of how an affidavit oath was to be taken apart from the opening words. This was referred to in the Victorian Parliament Law Reform Committee Inquiry into Oaths and Affirmations with Reference to the Multicultural Community in 2002:
In contrast to other States, the Evidence Act 1958 does not set out the precise wording of the oath, a fact which the following passage extracted from the Guidelines for Oaths, Affidavits and Declarations produced by the Legal Policy and Court Services Units of the Department of Justice acknowledges:
Requests are frequently made to officers of the Department of Justice as to the precise form of administering an oath or affirmation. The Evidence Act provides some clue to this, but the actual wording which should be used depends on the circumstances of a particular instance.
Section 100 of the Evidence Act prescribes the words which may be used in administering an oath (including taking an affidavit). Criticisms are made that the Act fails to give sufficient direction to the person administering an oath as to the form of words to be used. Because of the variable nature of the circumstances in which an oath may be administered, it is up to those empowered to administer an oath to use their discretion and to determine the appropriate form of words for use on a particular occasion. Subsequent parts of this article suggest a suitable form of words; these should not be taken as a strict rule, they are simply an indication of the form in which an oath could suitably be taken.[33]
[33]Parliament of Victorian Law Reform Committee, Inquiry into Oaths and Affirmations with Reference to the Multicultural Community (2002) at 35-36.
Conclusion
In my opinion, Detective Senior Sergeant Iddles and Detective Acting Inspector Cheesman were required to follow the procedure of uttering an oath in the presence of an authorised person under the Evidence (Miscellaneous Provisions) Act 1958 when these affidavits were completed. The fact that they did not do so means that the warrants were not obtained in compliance with s 465 of the Crimes Act 1958 and the evidence obtained pursuant to the warrants was evidence that was obtained in contravention of an Australian law. This, in turn, requires the Director of Public Prosecutions to demonstrate that the desirability of admitting the evidence outweighs the undesirability of doing so.
It remains the case that in relation to affidavits, the form of oath has not been prescribed by legislation. The omission of the words:
The person taking the oath shall hold the Bible or the New Testament or the Old Testament in his uplifted hand and shall repeat after the officer administering the oath or otherwise say the words…”[34]
can readily be seen as a reflection of the removal of the requirement of the use of a religious text. It does not evidence a legislative intention to fundamentally alter what has been, for centuries, the law’s understanding of what it is to take an oath in the context of an affidavit.
[34]Evidence Act 1958, s 100.
Sections 123C, 126 and 126A all use the language of affidavits “sworn or taken before”. Signing is not mentioned. The requirement that the date and place of the act of swearing be recorded on the affidavit by the person before whom it is sworn further reinforces the ongoing understanding of the act of swearing as an oral one done in the presence of the authorised person.
Section 138 of the Evidence Act 2008 and the exercise of discretion
Section 138(3) identifies the matters that I must take into account in deciding whether the Crown have established that, notwithstanding that the particular evidence was obtained unlawfully, the desirability of admitting the evidence outweighs the undesirability of doing so. I will deal with them in the order in which they appear in s 138 which is, as follows:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
(a) The Probative Value of the Evidence
The phrase “probative value” is defined the Dictionary of the Evidence Act as follows:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;
It is of course important to bear in mind that s 56 of the Evidence Act is concerned with “relevant” evidence. That being evidence that “could rationally affect [directly or indirectly] the assessment of the probability of the existence of a fact in issue in the proceeding”. As the meaning of “probative value” makes clear in the Dictionary of the Evidence Act, that phrase is concerned with the “extent to which” the evidence could have that effect. Thus the test is not just whether the evidence is relevant, but a measure of its probative value. The greater the probative value, the more persuasive the argument for the exercise of my discretion in favour of admission.
It is also important to note that I must make this judgment in advance of the trial commencing. It should be understood that as the trial proceeds, the value of evidence may vary depending on the manner in which the issues in the case develop. However, doing the best I can, I will make some assessment of the probative value of this evidence.
The probative value of the evidence is in contest between the parties. For the purpose of this issue, the evidence led from Senior Detective Paul Rowe, who is an investigator attached to the Homicide Squad and one of the investigators in this matter, coupled with a document[35] produced by the Crown that summarises the evidence obtained under each warrant and describes its significance, is the evidence that I have relied upon. I have extracted sections of that exhibited document for the purpose of this ruling, as I endeavour to summarise the evidence and my conclusion as to the probative value of the evidence.
[35]Exhibit X on the Voir Dire.
Before doing so, I should endeavour to identify the way in which this aspect was in dispute. Broadly, the Crown submission was that Michael Spiropoulos is a centrally important witness in this case. The Crown have accepted that certain pieces of evidence obtained pursuant to the contested warrants have no relevance and will not be put before the jury. When one examines the remaining product of the warrants, most are items which, by virtue of their nature and where they were found, are pieces of evidence capable of supporting the evidence of Spiropoulos. He is, after all, an accomplice and so the evidence is of significance.
Ms Randazzo’s argument is possibly best summarised by the following:
In this case, the evidence is not circumstantial evidence in the traditional way that we understand circumstantial evidence, either on its own or in combination. It's really to be characterised as evidence tending to support or corroborate an account of a co-accused, effectively. Ultimately, the difficulty that we have here is that Michael Spiropoulos is the only one who can give direct evidence about any of this and he could be saying whatever he wants, effectively. What the police have obtained or seized from each of those locations, none of it, either on its own or in combination, is going to tend to prove that Mr Borg was involved in the killing or the disappearance of - involved in the disappearance of Mr Rule, none of it. So this is not a situation where were that evidence excluded, there wouldn't be a case. There clearly still would be a case.[36]
[36]Transcript at 180.
And further, the evidence would:
….support a story or an account that [Spiropoulos] has given, none of which would indicate - even tend to establish that in fact what he is saying is the truth.[37]
As will become apparent, I do not accept that submission.
| 22 April 2010 | Warrant executed at 20 Ivanhoe Court Thomastown on 23 April 2010. Affidavit in support by Detective Senior Sergeant Iddles dated 21 April 2010. Warrant executed by Sergeant Upton. |
[37]Transcript at 181.
In summary, under this warrant a large number of items were seized. The items relevant to the issues in this case included:
(a)Equipment relevant to a hydroponic cannabis crop;
(b)Holden Commodore motor vehicle and ignition keys;
(c)Firearm ammunition with 10 rounds missing found in a jacket;
(d)Bags of “Blaze” firewood and pine kindling;
(e)Hammer
(f)Shovel
(g)Chain from the roof of premises;
(h)Block and tackle;
(i)Cut up number plates from the blue Volvo;
(j)Coco plant medium and bag;;
(k)Paint tin containing paint roller;
(l)Paint sample from the floor;
(m)Two fired cartridge cases;
(n)Letters, driver’s licence and rental documents showing occupation of the premises by the accused;
(o)White King bottle;
(p)Red and tallow “jerry” cans containing petrol; and
(q)White bone fragments located in the Commodore containing human DNA.
Considering the location of these items and their nature, I consider each of them to have probative value for the following reasons. The Crown say, based on the evidence of Spiropoulos, that the Thomastown factory was the premises to which the body of Rule was taken after he had been murdered at Campbellfield. It was here that Rule’s body was said to have been burnt. The factory is clearly connected with the accused. The hydroponic cannabis equipment goes directly to the issue of motive and the belief the Crown say the accused had that Rule had previously informed on him about such matters and his consciousness that he might do so again. Items (b) & (m) each go directly to the murder of Rule and the involvement of Borg, at whose premises these items were found, in that killing. All of the remaining items found at the accused’s premises go to the concealment of the body of the deceased by burning and destroying it and the connection of Borg in that activity. Item (q), the bone fragment containing human DNA, is quite clearly an important piece of evidence.
For this evidence to be regarded as probative, it is not necessary that it, of itself, either individually or in combination, prove that the accused was involved in the killing of the deceased separately from the evidence of Spiropoulos, as Ms Randazzo seemed to submit. In my opinion the evidence, being the combination of all the items located along with the evidence of Spiropoulos, is probative of the central issue in this case: can the Crown prove beyond reasonable doubt that the accused Borg caused the death of Peter Rule? I am satisfied that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in this trial to a considerable extent given that the evidence is, in a sense, independent and, in some detail, appears to support the evidence to be given by Spiropoulos.
| 22 April 2010 | Warrant executed at 65 Arcadia Avenue, Mickleham on 23 April 2010. Affidavit in support by Detective Senior Sergeant Iddles dated 21 April 2010. Warrant executed by Det Senior Sergeant Snare. |
65 Arcadia Avenue, Mickleham is the home of the accused’s parents and the accused also lived there on occasions. Under this warrant several items were seized. The items relevant to the issues in this case included:
(a) Three 20 litre tins of “Speedie Blue” paint;
(b) Flight itinerary and other travel documents for the accused to Malta;
(c) Two photos of the Great Ocean Road area; and
(d) A pair of red Lbay” shorts.
The relevance of item (a) is that Spiropoulos will say that the factory at Thomastown, where he claims that Rule’s body was dismembered was later cleaned by he and Borg and then the floor re-painted with blue paint supplied by Borg. As I understand it, item (b) relates to the trip that the accused made to Malta between 21 November 2009 and 15 January 2010. Items (c) and (d) both connect the accused with the Great Ocean Road area where Spiropoulos alleges that various items including the incinerated body of the deceased were taken to be disposed of. The contents of the black tub were disposed of in the ocean and afterwards they both purchased a pair of red “Lbay” shorts at a shop in Lorne because their clothes were wet. Spiropoulos later gave the pair that he had purchased to the police. The location of a pair of those shorts at the home of the accused is a piece of evidence to suggest that the accused also purchased his shorts at the particular shop in Lorne, which is consistent with him being there with Spiropoulos for the main purpose of disposing of various items used in connection with the killing of Rule and his burnt remains.
There was some considerable argument about this piece of evidence as to what it may or may not establish. The conclusion remains that it is a piece of evidence which is, in combination with other evidence, probative of the issue of whether the accused was in the Lorne area at that time and the reasons for him being there if he was:
| 19 May 2010 | Warrant executed on National Australia Bank for banking records. Warrant executed on 25 May 2010. | |
| 19 May 2010 | Warrant executed on Westpac Bank on 31 May 2010 for banking records. | The application for both warrants was supported by an affidavit of Detective Acting Senior Sergeant Cheesman dated 18 May 2010. The affidavit was signed by Cheesman but no oath was taken. |
The relevance of the documents obtained from the National Australia Bank (“NAB”) is that police had been told by Spiropoulos that on 29 June 2010 a loan, which was his second bank loan, was obtained from the NAB. It was a loan for $10,000.00 and the bank records confirm that. Spiropoulos told police that he gave that money to the accused by way of a bank cheque made payable to LB Extreme Engineering. The bank records also confirm that, showing that on 29 June 2010, $9,850 was paid to LB Extreme Engineering.
The records confirmed what police were told by Spiropoulos. This money was being borrowed so that Spiropoulos could assist the accused to fund the cannabis growing project – a project which was of some consequence and which the accused feared Rule had already informed police about and may do so again. It is therefore both relevant and probative in connection the Crown’s allegation about the motive, or an aspect of it, that the accused had for killing the deceased.
| 6 May 2010 | Warrant executed at 20 Ivanhoe Court, Thomastown on 7 May 2010 by Detective Acting Sergeant McLean. | The application for the warrant was supported by an affidavit of Detective Acting Senior Sergeant Cheesman dated 6 May 2010. The affidavit was signed by Cheesman but no oath was taken. |
This was the second warrant executed at these premises. The items seized included some white PVC pipe which is said to match the PVC pipe in which a firearm was located in the back of the utility vehicle of the accused on his arrest, some cable ties and an invoice book which links the premises to the accused via the business LB Extreme Engineering. The significance of these items remains to be seen as the trial proceeds. All I can say at present is that if these items are argued by the Crown to have become important to a fact in issue, I will consider their probative value at that point.
| 14 April 2010 | Warrant executed at Driven Engineering, 22 Glenbarry Road Campbellfield on 15 April 2010. Detective Senior Constable Rowe | The application for this warrant was supported by an affidavit of Detective Inspector Edwards dated 14 April 2010. The affidavit was signed by Edwards and an oath was taken by him in the presence of Detective Senior Sergeant Snare. |
In my opinion, the affidavit in support of this warrant complies with the requirements and therefore none of the evidence seized as a result has been obtained unlawfully. There is, therefore, no occasion to consider it in connection s 138 of the Evidence Act.
(b) The Importance of the Evidence in the Proceeding
The evidence obtained under these warrants, which appears to me to be probative, would not be available to the prosecution from any other source if I were to exclude it. It is thus important evidence in the proceeding.
(c) The Nature of the Relevant Offence
Given that the accused man is charged with murder and the allegation is that this was a carefully planned killing followed by a methodical process of concealing the body of the deceased and concealing the involvement of the accused, this is as serious a matter as the Court is ever called upon to deal with.
(d) The Gravity of the Impropriety or Contravention
As I have earlier concluded, each of these police officers realised that an oath was necessary to be sworn in completing these affidavits but succumbed to what they described as some form of culture in which the oath was not important and could be dispensed with. I have concluded that this was a common practice within Victoria Police. I have also concluded both Detective Senior Sergeant Iddles and Detective Acting Senior Sergeant Cheesman went to some trouble to ensure that what was contained in the document was correct and accorded with the information that the Homicide Squad then had about this case, and that they regarded themselves as bound by the contents of the documents. Both Iddles and Cheesman were of the view that they exposed themselves to the risk of an allegation that they had attempted to pervert the course of justice if the document contained deliberately false statements.
Counsel for the accused effectively submitted that the impropriety in this case was very serious and referred to the importance of the protection that it is intended people have against unlawful or improper interference with their property. As I followed it, counsel were urging me to take a view of this matter similar to that of the trial judge in Marijancevic. Counsel also relied on the obvious fact that the affidavits purported to be something were not – evidence which was sworn. A Magistrate, it was submitted, would make the assumption that the document had been sworn and act on that assumption in issuing the warrant.
In Marijancevic,[38] the Court of Appeal reviewed the conclusions of the trial judge in that case. After discussing the judge’s conclusions, the Court said:
[38][2011] VSCA 355 at [65]-[68].
At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety.
In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal.
At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct. Cases such as Ridgeway exemplify this category of impropriety.
There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread.
Those categories having been identified by the Court and I regard the conduct of the police in this case as falling into the second category. That is, I conclude that it was conduct known by the police to be improper or, more accurately, a breach of the law, but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. There is no question that the conduct was serious and it appears to have been widespread but I do not regard it as conduct of the highest order. The police gave evidence of the obligation that they felt to be truthful and accurate and they regarded themselves as bound by the content of the documents with a potential criminal consequence for them if that turned out not to be so. However misguided their view about the need to take an oath, particularly given their extensive experience, that is my opinion as to the gravity of the conduct.
(e)Whether the impropriety or contravention was deliberate or reckless.
My conclusion as to the circumstances under which these affidavits were signed leads inevitably to the conclusion that what was done in this case was deliberate. In my opinion, these police knew the affidavits should have been sworn but chose not to swear them in the mistaken and misguided belief that other considerations such as their belief in the need for accuracy in the document and the consequence of a false statement was more important than an oath. In the giving of their evidence they left an impression that there was some kind of choice to be made. Either the affidavit is checked carefully for its accuracy or it is sworn; and they chose the former. As I have already said, both are required. In addition, the evidence of Detective Inspector Edwards, in particular, seems to suggest that some police regarded themselves as required to take the oath while others, such as Iddles and Cheesman, felt they could dispense with doing so. The fact that a culture had arisen where this view was apparently widely held within Victoria Police adds to the seriousness of the conduct. As the Court of Appeal in Marijancevic said:[39]
The fundamental role which oaths and affirmations play in our system of criminal law is readily apparent. The requirements of s 81 of the Act are not a mere technical ancillary to obtaining a search warrant. Just as courts proceed upon the basis of testimony sworn or affirmed, so do magistrates issue search warrants on the basis of testimony sworn or affirmed.
(f)Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (ICCPR)
[39]Ibid, at [56].
This aspect of s 138 was not the subject of any argument on behalf of the accused and received only passing reference by senior counsel for the Director of Public Prosecutions.[40] He did note that the relevant section of the ICCPR was Article 17 which is as follows:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
[40]Transcript at 158.
The warrants that have been challenged in this case were directed at aspects of the activities of the accused, including where he worked and where he lived. Although it is correct to say that the warrants were obtained without lawful compliance with the pre-conditions for their issue, they stood and have not been set aside. There is now little utility in attempting doing so. Whether what occurred in this case was a contravention of Article 17, in that it was an unlawful interference with his privacy, family or home, was a matter which was not argued and which I am not able to conclude. I am of the view, however, that what occurred is inconsistent with the right described in that Article and I have taken that into account.
(g)Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention
Under this heading in his submissions, Mr Gyorffy outlined the efforts by the police to both reveal and ameliorate the widespread practice of not swearing affidavits. I do not regard s 138(3)(g) as the appropriate heading for that submission. I will refer to it below as an additional factor that I have taken into account in the exercise of my discretion.
Section 138(3)(g) appears to me to be more concerned with other proceedings against these police including the prospect of disciplinary action. There is no evidence before me about that and I am unable to say whether such a step will be taken.
(h) The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Compliance with the lawful requirements under s 465 of the Crimes Act 1958 would have been a very simple matter. The only difference between what happened and what could have happened is the time it would have taken to swear the oath. As Detective Inspector Edwards said when cross examined:
You didn't think that there was a difficulty in the different practices that were occurring? --- Well, in hindsight, it wouldn't have taken much to do it.
In terms of that, seconds, effectively, for them to utter the appropriate words? --- Yes, 15 seconds.
In dealing with this aspect of the argument in Marijancevic, the Court of Appeal said:[41]
His Honour considered s 138(3)(h), which required him to take into account the difficulty of obtaining the evidence without impropriety. The trial judge found that there would have been no difficulty in properly swearing the affidavits. Differing arguments were briefly advanced on appeal as to how this subsection should be construed. We do not consider it necessary to address this question, which should await an occasion when more substantial consideration can be given to the issue.
[41][2011] VSCA 355 at [64].
With that very limited assistance from the Court of Appeal, I have also considered the reasoning of the trial judge on this issue in that case.[42] His Honour referred to an extract from a paper of the Australian Law Reform Commission[43] which is, in turn, quoted in Uniform Evidence Law in Victoria.[44] The passage draws the contrast between a deliberate cutting of corners that supports the exclusion of the evidence on the one hand, and the ease of compliance perhaps indicating that the breach was trivial, on the other. Judge Montgomery rejected any notion that the breach in the case before him was trivial and appropriately so. I agree that this is not a trivial matter.
[42]Transcript of the ruling of Judge Montgomery (18 October 2011) at 1253.
[43]Australian Law Reform Commission paper No. 26 at [964].
[44]Stephen Odgers, Uniform Evidence Law in Victoria, (Thomson Reuters (Professional) Australia Limited, 2010) at 765.
However, his Honour continued to outline a further submission which had been put to him on behalf of the accused which he appears to have accepted:
….the application by police for search warrants are made ex parte. They are entrusted by the courts and the community to exercise great care and propriety in making such applications. The courts rely on integrity of police in there [sic] is a heightened duty of police in these circumstances to ensure that the material they put before the court complies with the law.[45]
[45]County Court transcript (18 October 2011) at 1253.
True as that is, the evidence before me suggests that despite the formal oath not having been uttered before an authorised person in the case of Iddles and Cheesman, the content of the documents was carefully considered on the basis that both men regarded themselves as bound by the contents, and they set out to tell the truth. No contrary proposition was put to me. In my opinion, the result is that the documents would have had the same content whether sworn or unsworn. It would be quite a different and more serious situation if, hypothetically, I had concluded that the police members did not take the oath because they had little or no confidence in the content of the document and wished to avoid the risk of being charged with perjury or some other offence.
Thus, whilst these breaches were not trivial, the ease of compliance in the circumstances of this case as I have just described, mitigates the seriousness of the breach.
Other Relevant Considerations
In my opinion, it is significant that as the facts of Marijancevic gained notoriety, Victoria Police and the Office of Public Prosecutions established procedures to discover other examples of these problems having occurred. They have also ensured that directions have been given to all police officers about the proper swearing of affidavits.
After the publication of the judgment of the Court of Appeal in Marijancevic on 11 November 2011, a number of steps were taken, some of which I will refer to. The documents which I mention are attached as appendices to this ruling. They include:
1.9 December 2011 – Guideline from the Director of Public Prosecutions, Mr John Champion SC, concerning Victoria Police affidavits (Appendix 1);
2.15 December 2011 – Government Gazette containing the Director’s guideline (Appendix 2);
3.VP Form 1407A – Affidavits – General Disclosure Form (Appendix 3);
4.VP Form 1407 – Notification to Prosecutions Unit (Appendix 4); and
5.6 October 2011 - Talking Points for Information (Appendix 5).
In addition to these documents, I was provided with a number of others which can be summarily described as evidencing a widespread discussion of these issues within Victoria Police after the matter was the subject of significant publicity. At the beginning of this ruling I noted that this issue only arose because of disclosure by police which was ultimately also made to the accused and to the Court.
In evidence leading to the tender of those documents on the voir dire, the informant, Detective Senior Constable Rowe, gave the following evidence:[46]
[46]Transcript at 45.
In documents 13, 14 and 18, just to summarise, is the message that is being conveyed by force command to its members one that force command should ensure that courts are properly advised in all cases as to the status of affidavits, that there be full disclosure? --- Yes.
That the integrity of the criminal justice system needs to be preserved, that the credibility of the members of the police who have acted in good faith be protected? --- Yes.
And the need for there to be total transparency on this topic? --- Yes.
The documents to which the witness was being referred were emails from the Acting Deputy Commissioner to other senior police on the topic, a global email from the Chief Commissioner to all police members and a chart-type document instructing members as to how to complete the disclosure documents, those documents being 1407A and 1407 (referred to above and annexed as Appendices 3 and 4).
The relevance of this evidence was stated by Mr Gibson of counsel for the Director of Public Prosecutions before me, as follows:[47]
It comes back to the discretion, that you might have to make a qualitative assessment as to where on the scale of seriousness, if there is a breach, which we don't concede, but if Your Honour was to find that, where it sits, is it a serious one or is it a technical irregularity? One of the factors relevant to that is that these policy directives were brought out to ensure transparency and it's relevant to that qualitative assessment of the extent of the irregularity, if there be one. So rather than the police sitting on their hands and doing nothing, then Your Honour can take that on board as well. It's also relevant to whether or not the court needs to take any curial steps itself, and we would be submitting that these documents go a long way to avoiding that necessity.
[47]Transcript at 43.
With respect, I agree with that submission. This is the evidence that Mr Gyorffy sought to refer to under s 138(3)(g). The evidence on this topic does demonstrate that Victoria Police have been concerned to ensure full disclosure in these matters and appear to have taken steps to end the “custom” of not properly swearing affidavits in support of search warrants. That does diminish the need for any further curial steps in the circumstances as I have found them to be and I take that into account in the discretion I exercise.
Conclusion
In my opinion, the warrants executed at 20 Ivanhoe Court Thomastown and 65 Arcadia Avenue, Mickleham on 23 April 2010, the National Australia Bank and Westpac Banking Corporation on 25 & 31 May 2010 and the further warrant executed on 20 Ivanhoe Court Thomastown on 7 May 2010 produced evidence which was obtained in contravention of an Australian law – in particular s 465 of the Crimes Act 1958 and the various provisions of the Evidence (Miscellaneous Provisions) Act 1958, to which I have referred.
In my opinion, the combination of these provisions require that a police officer wishing to present an affidavit to a Magistrate in support of the issue of a search warrant under s 465 of the Crimes Act 1958 must have verbally sworn or affirmed that the contents of the document are true and correct and that an oath or affirmation must have taken place in the presence of another person authorised under the relevant legislation to take the affidavit. The deponent and authorised officer must sign the document in each other’s presence. In this case that did not occur.
However, having considered the matters that s 138 of the Evidence Act 2008 require me to take into account, I am satisfied that in this case the desirability of admitting the evidence obtained pursuant to these warrants outweighs the undesirability of admitting it and I exercise my discretion accordingly. The evidence will be admitted.
4