R v Brown
[2014] TASSC 18
•3 April 2014
[2014] TASSC 18
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Brown [2014] TASSC 18
PARTIES: R
v
BROWN, Noreen Joyce
PIERCY, Garry Myles
FILE NO/S: 246/2011
339/2011
DELIVERED ON: 3 April 2014
DELIVERED AT: Burnie
HEARING DATE/S: 31 March, 1 – 4 April 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Search warrants – Execution – Requirement that copy of warrant be made available to occupier – Occupier given brief opportunity to look at warrant but not given a copy to keep.
Crimes Act 1914 (Cth), s3H(1).
Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441, followed.
Zhang v Commissioner, Australian Federal Police (2009) 260 ALR 580, referred to.
Aust Dig Criminal Law [2969]
REPRESENTATION:
Counsel:
Crown: I M Arendt, S Wilson
Accused Brown: G A Richardson
Accused Piercy: P Sullivan
Solicitors:
Crown: Director of Public Prosecutions (Cth)
Accused Brown: G A Richardson
Accused Piercy: P Sullivan
Judgment Number: [2014] TASSC 18
Number of paragraphs: 23
Serial No 18/2014
File Nos 246/2011
339/2011
THE QUEEN v NOREEN BROWN and GARRY MYLES PIERCY
REASONS FOR DETERMINATION BLOW CJ
3 April 2014
The two accused, Mrs Brown and Mr Piercy, are each charged with defrauding the Commonwealth. The Crown contends that Mrs Brown was the principal offender and that Mr Piercy was knowingly concerned in defrauding by her. The two accused began living together as a couple in Ulverstone in late 1988. Early in June 1994 Mr Piercy moved interstate to look for work, which he found. He was gone for months. The evidence suggests that he did not provide any financial support to Mrs Brown while he was away. Upon his departure she applied to the Department of Social Security for a pension. No such pension would have been payable to her if she and Mr Piercy had continued to be a couple for the purposes of the Social Security Act 1991 (Cth). The pension was granted to her. The Crown contends that she obtained it fraudulently and, as I have said, that Mr Piercy was knowingly concerned in the fraud.
In April 2010 the two accused were living together in a house in Ulverstone. As a result of an investigation by Centrelink officers, a search warrant was issued pursuant to the Crimes Act 1914 (Cth) by a magistrate to an officer of the Australian Federal Police ("AFP"), Federal Agent Higgins. On 10 April 2010 that warrant was executed. A search of the house was conducted by two AFP officers and a number of Centrelink officers. The Crown wished to rely at the trial on a number of documents that were seized during that search. Counsel for both accused objected, contending that certain requirements of the Crimes Act relating to search warrants had not been complied with, that the documents had therefore been obtained in contravention of an Australian law, and that s138(1)(a) of the Evidence Act 2001 made them inadmissible. The Crown contended that there had been no such contraventions and, in the alternative, that the evidence should be admitted pursuant to s138(1) on the basis that the desirability of admitting it outweighed the undesirability of admitting evidence that had been obtained in the way in which this evidence was obtained.
On 2 April 2014 I determined that the evidence had been obtained in contravention of an Australian law, that the desirability of admitting the evidence was not outweighed by the undesirability of admitting evidence obtained in the way that this evidence had been obtained, and that the evidence was therefore not to be admitted. These are my reasons for that determination.
In my view neither the warrant holder nor his assistants complied with s3H(1) of the Crimes Act. That subsection reads as follows:
"(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant."
There was conflicting evidence on the voir dire as to what was done by way of making available a copy of the warrant. The warrant holder, Mr Higgins, gave evidence that he gave Mr Piercy a copy of the warrant when he entered the premises; that Mrs Brown was out shopping; that Mr Piercy phoned her and got her to come home; that she was shown the copy of the warrant that had been given to Mr Piercy; that the two of them sat down; and that it was explained to both of them why the officers were there and what their rights were. Mr Piercy gave evidence that he was shown the warrant; that he quickly scanned the first page; that Mr Higgins then asked where Mrs Brown was; that he said she was up town shopping; that Mr Higgins asked him to ring her; that he handed the warrant back to Mr Higgins, walked into the kitchen, and rang her; and that he did not ever see the warrant again. Mrs Brown gave evidence that no one gave her a warrant or showed her any documentation. The only other witness to give evidence on the voir dire was a Centrelink officer named Donna Brown. She gave evidence that she did not see the warrant when she was at the house.
I prefer the evidence of the two accused to that of Federal Agent Higgins. The evidence on the voir dire establishes that the two accused are very neat people. I saw video footage of every room in their house. Their papers were well organised and kept in drawers. There is no possibility that a warrant could have been given to them and lost, mislaid or overlooked. The documents seized pursuant to the warrant appeared to me to be so insignificant that the two accused would have had little incentive to tell lies about the warrant. There was nothing about their evidence or the way they gave it to suggest that it was unreliable. Mr Higgins, on the other hand, plainly had very little recollection of the search, and based much of his evidence on reconstruction, often answering questions by saying what would have happened rather than basing his answers on any memory. I am satisfied that Mrs Brown was not provided with a copy of the warrant, and that Mr Piercy had no opportunity to read the warrant or a copy of it, except for a very brief period when he had the original warrant in his hand.
In my view Mr Higgins did not "make available" a copy of the warrant to either of the accused within the meaning of s3H(1). In my view the subsection requires a copy of the warrant to be given to the occupier of the premises, or the occupier's representative, to keep, not just to look at for a brief period. My reasons for that conclusion are as follows.
Section 3H(3) requires that, if a person is searched under a warrant in relation to premises, "the executing officer or a constable assisting must show the person a copy of the warrant". Since the word "show" is used in that subsection, the words "make available" in subs(1) must require something greater.
It would be absurd if making available a copy of a warrant temporarily was sufficient to satisfy s3H(1). If that were sufficient, there would be no need for the subsection to require the creation of a copy.
An interpretation of s3H(1) that would best achieve the purpose or object of that provision is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth), s15AA.
In Zhang v Commissioner, Australian Federal Police (2009) 260 ALR 580 at [25] Flick J made comments relevant to the purpose of s3H. His Honour said:
"One purpose achieved by provisions such as ss 3H and 3P is to ensure that the occupier or other person is fully informed as to the extent of the authority conferred by a warrant. He is thereby placed in a position whereby he can observe that the terms of a warrant are not being exceeded. The statement in the warrant of those matters required by s 3E(5)(a) and (c), and the requirement that a copy of the warrant be made available, ensure that the occupier or other person is not reduced to a mere bystander."
I agree with those comments. In my view the purpose of s3H(1) would best be achieved by interpreting the words "make available" as requiring a copy of the warrant to be made available to the occupier or other person for him or her to keep. The execution of a search warrant can be a stressful experience for an occupier. An opportunity for the terms of the warrant to be studied calmly afterwards is therefore highly desirable.
The Full Court of the Federal Court of Australia has held that failure to comply with s3H(1) renders the execution of a warrant unlawful: Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441 at [39]. It follows that the execution of the warrant at the home of the two accused was unlawful. It follows that the evidence obtained during that search was obtained in contravention of an Australian law within the meaning of the Evidence Act, s138(1).
As I have said, counsel for the Crown submitted that the evidence should still be admitted even if it had been obtained in contravention of an Australian law. The provisions in s138 that are relevant to that submission read as follows:
"(1) Evidence that was obtained —
(a)improperly or in contravention of an Australian law; or
(b)… —
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) …
(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."
The evidence in question is of little probative value and of little importance. It consists of letters, cards, photographs and a book of poems, all of which tend to prove that the two accused were living together as a couple in April 2010 and had been for years. The charges relate to allegedly fraudulent acts in early June 1994. The Crown contends that the two accused continued to be a couple for the purposes of the Social Security Act while Mr Piercy was interstate, and that both accused acted dishonestly at that time in making representations to the effect that they were no longer a couple. Evidence that their relationship was an enduring one in 2010 is of little significance in assessing the nature of their relationship in June 1994, and is of little relevance to the questions of whether they acted dishonestly in June 1994.
The alleged crimes are serious. The Crown contends that, as a result of the alleged fraud, the Commonwealth paid Mrs Brown instalments of pension totalling over $160,000 between 1994 and 2010.
I regard the contravention of s3H(1) as serious. The search amounted to a substantial intrusion into the home of two people aged 63 and 74 during which all rooms were thoroughly searched, and personal correspondence and items likely to have sentimental value were seized. The two occupiers should have been provided with a copy of the warrant so that they could make some assessment as to whether any of the items seized were outside the scope of the warrant. It appears from the evidence on the voir dire that some of the seized items were outside of the scope of the warrant – a personal letter to Mr Piercy from a friend in Korea and a book of poems given to him by Mrs Brown.
I have no reason to think that the contravention of s3H(1) was deliberate. However I am satisfied that the warrant holder, Federal Agent Higgins, was recklessly indifferent to his duty to provide a copy of the warrant to the occupier of the premises. And that is disgraceful.
Leading counsel for the Crown, Mr Arendt, submitted that there was nothing of relevance to this matter in the International Covenant on Civil and Political Rights. That submission revealed an unfortunate level of ignorance about human rights. Article 17 of Part III of that instrument reads as follows:
"1No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2Everyone has the right to the protection of the law against interference or attacks."
Because s3H(1) was not complied with, the two accused suffered unlawful interference with their privacy, home and correspondence within the meaning of Article 17.
I do not know whether any disciplinary action might be taken within the AFP in relation to Mr Higgins' contravention of s3H(1), but I very much doubt that any significant proceeding will be instituted against him.
The subsection could very easily have been complied with, by Mr Higgins bringing a copy of the warrant to the premises for the occupier, handing it over, and leaving it there.
Courts have consistently taken the view that a strict approach should be taken to compliance with statutory provisions relating to the issue and execution of search warrants. See, for example, George v Rocket (1990) 170 CLR 104; Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384. In all the circumstances, I concluded that the undesirability of admitting evidence that had been obtained during a search at which s3H(1) was not complied with was not outweighed by the desirability of admitting the evidence obtained during the search in question.
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