R v Chorley

[2000] TASSC 30

[2000] TASSC 30

CITATION:             R v Chorley [2000] TASSC 30

PARTIES:  R
  v
  CHORLEY, Alan William

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  262/1999
DELIVERED ON:  7 April 2000
DELIVERED AT:  Launceston
HEARING DATE/S:  5 April 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Prosecution:  C Rheinberger
             Accused:  D Grey
Solicitors:
             Prosecution:  Director of Public Prosecutions
             Accused:  Zeeman Kable & Page

Judgment ID Number:  [2000] TASSC 30
Number of paragraphs:  12

Serial No 30/2000
File No 262/1999

THE QUEEN v ALAN WILLIAM CHORLEY

REASONS FOR JUDGMENT  SLICER J
RULING GIVEN ORALLY  APRIL 2000

1. The accused seeks to exclude evidence of the finding and seizure of cannabis from a property situate at Bridgenorth in Tasmania.  On 9 September 1998 police officers acting in accordance with the terms of a warrant went to premises situate at 888 Bridgenorth Road and located a quantity of cannabis which had been stored in a shed situate on that property.  The warrant had been issued by Mr David Cullen, a Justice of the Peace, in Launceston.  At 8.46am Constable Edwards placed before the Justice an application for the issue of a warrant in the following terms:

"I am an Inspector pursuant to section 23 of the Poisons Act 1971.

I have received information from an informant that Alan "Bill" CHORLEY of Bridgenorth Rd, Bridgenorth is currently in possession of cannabis at his residence.  My informant states that he was at CHORLEY'S residence recently, and observed a quantity of cannabis in the loungeroom.  My informant also states that CHORLEY informed him that he was attempting to sell a large quantity of cannabis.

I have known my informant for six (6) months, and during that time he has proved reliable, and able to identify Cannabis to me.

Checks reveal that Alan William CHORLEY currently resides at 887 888 Bridgenorth Rd, Bridgenorth.

Checks reveal that Alan William CHORLEY has prior Poisons Act convictions.

Cannabis is a prohibited substance under the provisions of the Poisons Act 1971."

1. The Justice did not question the officer in relation to the contents of the application but relied upon its internal material as forming sufficient cause for him to issue the warrant.

1. Police officers went to Bridgenorth Road and on examining the contents of a letterbox ascertained that the correct address was 888 Bridgenorth Road rather than 887.  At about 10.13am the officers returned to the Justice of the Peace and Detective Constable Stewart informed him of the altered address and requested that the warrant be amended.  The Justice did so and the officers returned to the premises where the cannabis was located. 

1. The basis on which the accused seeks to exclude the evidence is that the Justice did not exercise his own judgment in the decision to grant the warrant.  Counsel for the applicant claimed that the Justice did not act in accordance with the principles of law as discussed in The Queen v McLeod [1991] Tas SR at 144 and Dean v White A13/1996.

1. The application to exclude the evidence is rejected.  The Justice stated that he was satisfied that there was sufficient evidence to justify the issue of the warrant.  The fact that he asked no further questions nor that he challenged the contents of the application is immaterial.  He stated that he relied on the following material:

1That the officer had received information from an informant who was a person known to the officer for some period of time and who had proved reliable and able to identify cannabis.

2The fact that the informant stated that he had been to the home or residence of the accused recently.

3That the informant had stated that at those premises he had observed a quantity of cannabis.

4That the informant had told the maker of the application that Chorley had said that he was attempting to sell a quantity of cannabis. 

1. The currency of the information was a significant matter in the exercise of the administration officer's discretion.  The Justice stated that he excluded from his consideration material that the accused had convictions for offences against the Poisons Act.  In his view he could not see how those convictions were relevant. 

1. The Justice did not ask Constable Stewart how he had known the informant.  He did not ask the identity of the informant nor ask how, in the past, information provided by the informant had proved reliable.  He was not obliged to so do.  He was obliged to make his own assessment on the basis of the material contained in the application.  If, in his opinion, the information was not sufficient to enable him to exercise a reasonable judgment, then he was obliged to reject the application and decline to issue the warrant.  The Justice gave evidence that he had, in the past, rejected such an application because it did not contain, internal to the application, sufficient information. 

1. The principle is that a warrant can only be issued by a judicial officer after such officer has been satisfied that there is reasonable ground for suspicion.  In doing so a Justice of the Peace is exercising both an administrative and judicial function (Baker v Campbell (1983) 153 CLR 52). That function requires a Justice to exercise judgment on the basis of the material placed before him or her (R v Tillett ex parte Newton (1969) 14 FLR 101. As was said in Crowley v Murphy (1981) 34 ALR 496 at 515, "It is for the Justice himself who must be satisfied … he must ensure that a finding of reasonable grounds is supported by credible facts and circumstances". The reasonable grounds must induce a state of mind of suspicion and belief of the existence of facts which are sufficient to bring about that mental state (George v Rocket (1990) 170 CLR 104). The Justice must be satisfied that there is reasonable ground for suspecting that there are things as to which there are reasonable grounds for belief. The dominant standard therefore is one of suspicion. That standard is lesser than a state of belief. It is necessary that the suspicion be supported by some foundation of fact. The information must state the reasonable grounds for suspicion. In Tasmania the information need not be made under oath.

1. In this case there is clear evidence that the Justice exercised his own judgment.  There is clear evidence that the material placed before him was sufficient to enable him to properly exercise a judgment so as to permit the issuing of a warrant.  The following exchanges show the basis on which the Justice made his decision to issue the warrant:

"MR GREY:  And it's correct, is it not, that you don't apply any other test, you don't check, ascertain any other information, you don't assess yourself as to the reasonableness or otherwise of the information of the informant; that's correct?  …  I make that assessment from the information that's contained in the application and, if the applicant says that he's known the informant for a particular period of time and that he's proved reliable and that he can identify the particular drug, then yes, I accept what he says.

…

And you don't believe that it's necessary for you to make any further inquiry of the officer?  ...  In this particular case, no, but if the case involved, there was insufficient evidence, or what I considered insufficient evidence or insufficient information, then that would be an entirely different matter.

…

WITNESS:  I take every application on its merits, I don't - it's impossible for me to give you a hard-and-fast rule of what I look for because every application is different.  Sorry, quite often the application's completely worded differently.

…

WITNESS:  Just let me get it clear, your Honour.  What you are saying is the informant is saying that he hasn't been there and he hasn't sighted drugs there?

HIS HONOUR:  Or the information is silent about that.  You have simply got, I have received information from an informant?  ...  Right.

HIS HONOUR:  And I trust the informant?  ...  Oh, I see.

HIS HONOUR:  That is all you have got, say?  ...  Well, under those circumstances, your Honour, your Honour no.  Because there is nothing to suggest that there is currently drugs there or has been in the past, in the immediate past.  And under those circumstances, if a police officer came to me with a warrant just with that bare necessity, well, then I would refuse straight away.  The integral part or one of the integral parts are the factors that the person named in the information is currently in possession.

…

MR GREY:  Can you recall any incident where you have not accepted the information on an application form?.....Yes."

The fact that the applicant returned to the Justice to have it amended (albeit in the most minor way) shows that there was proper supervision of the process and an appropriate exercise of judgment on the part of the Justice of the Peace.  In relation to the amendment of the address stated in the warrant the relevant questions and answers were:

"MR GREY:  And subsequently, when the officer returned, you didn't ask him any questions at all as to what his information was in relation to any change of address?  …  No, because he told me that their inquiries had shown the address, as stated at 887, was incorrect and that the correct one was 888, and I accepted that.

…

You didn’t ask him whether he had been to 887 and found that‑?  …  Well, I understand that they had been there.

…

Were you told that by the officer?  …  I was told by him that the address of 887 was not correct, and that the proper address was 888.

…

So you didn't think that it was appropriate that you inquire further as to what his inquiries were?  …  No.  I mean all we were changing was the number, wasn't changing the whole address, I mean if the whole thing had changed and he said that it was a completely different road, yes, but not with a number.

HIS HONOUR:  What's yes mean, I would have done what?  ...  Well, your Honour, if he'd come back to me and said it was a road other than Bridgenorth Road, an address, well then I would have possibly asked him then how he arrived at that.  I mean I can't really say exactly what I would say because that situation never arose, but all we were doing, all he was changing was one numeral, from 887 to 888 and I saw nothing wrong with that and I allowed the amendment.

HIS HONOUR:  Have you had cases where they have come - supposing they had said, I know it's hypothetical but we will go backwards - supposing he comes back and says, oh, it's in fact South Street, Campbell Town?  ...  Well, with such a large difference in geography, your Honour, I think I would have to suggest that he makes out another application.  Yes.

…

MR GREY:  So you accept that if an officer tells you something that he has suspicions or information, you accept his suspicions, his information?  ...  He came back to me and told me that he'd made, that the address, or the number on the warrant was incorrect and that instead of 887, it should have been 888.  I accepted his word without any further question from me, because it was just what I considered a genuine mistake, nothing dramatic about it - changing one numeral.

…

Because you don't perceive it to be your role to test the officer in relation to his information?  ...  No.  If I consider that the application that is presented to me contains sufficient information to warrant the issuing of a warrant then I will do so and therefore I don't bother questioning him because there is nothing to question him on.  If I consider that it doesn't contain sufficient information then I'll tell him and the warrant won't be issued."

1. The determination is that the warrant was validly issued and the evidence may be admitted into evidence.

1. The accused was not present at the property at the time the search was conducted in accordance with the warrant.  Some days later, the investigating officer spoke by telephone to a person who identified himself as Alan Chorley, and requested him to come to the police station.  The request and response was to the mutual convenience of the parties in that the police could see the person at the station and Mr Chorley did not have to undergo an unannounced arrival and had some say in a mutually convenient time, and was afforded the opportunity of obtaining legal advice.  When he later attended the police station, he introduced himself by name to Constable Edwards.  The constable informed Mr Chorley of his desire to conduct an interview in relation to the search of a seizure of items (which included firearms and prohibited plants) from the property on 9 September.  Mr Chorley declined to be interviewed stating that he did so on the basis of legal advice.  As of the time he declined the request, there existed an evidentiary nexus between the warrant, the person named on the warrant, the premises searched, the person spoken to on the telephone and the man present at the station.  There is an evidentiary nexus between the man present at the police station (who was the person charged) and the accused.  The Crown seeks to lead evidence of the conversation between the officer and the accused following the rejection of the request for interview.  The conversation concerned the presence of exotic fauna on the property and the officer's interest in the parrots, emu and deer kept by Mr Chorley.  The import of the conversation is that the accused accepted that he was the occupant of the property which had been searched.  The accused contends that the evidence ought be excluded in the exercise of a discretion based on the principles of fairness as stated by the High Court in Cleland v R (1982) 151 CLR 1 and subsequent cases. There is no unfairness. Matters relevant to that conclusion are:

1The conversation was directed at a matter of partial interest to the officer.  There was no process of entrapment or subterfuge.

2The officer was required to establish a nexus between the man standing in the police station and the search.  The accused was not personally known to him.  The presence of the accused in response to the telephone call, the reference by the officer to the purpose of the interview sought, and the statement by the accused that he wished to decline the opportunity to be interviewed constituted an implicit agreement that the man present was the occupier of the premises at the time of the search.

3The statement by the accused that he had not been present at the time of the search because of illness was relevant to the inquiry and was not sought improperly.

4Had the statement that he was the occupier of the property been made before the request for interview, there would have been no obligation to warn.  The officer, in any event, was entitled to identify the person by reference to name and address (Police Offences Act, s55A). Had the officer inquired whether or not the person standing in front of him was the person in relation to whose property a search had been made before the request for interview, there would have been no unfairness in any failure to warn. This was not a case of abuse of statutory power.

5The statement was made by a person who had received legal advice and had exercised a right not to be interviewed.

6It had been open to the investigating officer to return to the premises following the search for the purpose of seeking an interview with the accused.  It was open to the investigating officer to go to the premises following the telephone call.  It is not unfair to facilitate the method of setting up contact in a manner and at a time convenient to both parties.  A conversation occurring in the course of such contact is not one unfairly obtained.

1. Evidence of the conversation may be led on the trial.