R v Gary Shane Austin (No 2)
[2010] ACTSC 136
•5 NOVEMBER 2010
HUMAN RIGHTS ACT
R v GARY SHANE AUSTIN (NO 2)
[2010] ACTSC 136 (5 NOVEMBER 2010)
PRACTICE AND PROCEDURE – proper certification of affidavits relied upon by a represented party.
CRIMINAL LAW – search warrants – warrant authorising search of residential premises.
CRIMINAL LAW - nature and extent of search under the warrant – power of police under the search warrant to: use forcible entry without warning or announcement, search the residence, search any person on the residence and seize items not specified in the search warrant.
ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) - application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant - “exigent circumstances” unclear meaning in Australian law – “exigent circumstances” found to permit entry to premises to execute search warrant without prior announcement – application dismissed.
ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) - application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant - “exigent circumstances” exception includes the need to ensure evidence in the contemplation of the search warrant is not destroyed – application dismissed.
Crimes Act 1900 (ACT), Div 10.3
Criminal Code 2002 (ACT), ss 603(5) 603(7)
Drugs of Dependence Act 1989 (ACT), ss 187, 187(2), 187(7)
Evidence Act 1995 (Cth), s 138
Human Rights Act 2004 (ACT), ss 12, 28
R v Collins [1987] 1 SCR 265
Funke v France (1993) 16 EHRR 297
McLeod v United Kingdom (1999) 27 EHRR 493
Camenzind v Switzerland (1999) 28 EHRR 458
George v Rockett (1990) 170 CLR 104
R v Austin [2010] ACTSC 47
Rogers v Moore & Ors (1992) 39 FCR 201
Rogers v Moore & Ors (1993) 41 FCR 301
Jacobsen v Rogers (1995) 182 CLR 572
Coco v The Queen (1994) 179 CLR 427
Crowley v Murphy (1981) 52 FLR 123
Semayne’s Case (1604) 5 Co Rep 91; 77 ER 194
Entick v Carrington & Ors (1765) 2 Wils KB 275; 95 ER 807
Feather v Rogers (1909) 9 SR(NSW) 192
Jones v German [1897] 1 QB 374
Lippl v Haines (1989) 18 NSWLR 620
Wilson v Arkansas 514 US 927 (1995)
R v Cornell [2010] SCC 31
Richards v Wisconsin 520 US 385 (1997)
Scott v CAL No 14 Pty Ltd & Ors (2007) 17 Tas R 72
Carrick v J (1989) 39 A Crim R 233
Marshall v Watt [1953] Tas SR 1
O’Neill (2001) 122 A Crim R 510
Director of Public Prosecutions (NSW) v Nassif (2002) 135 A Crim R 391
Eccles v Bourque (1974) 50 DLR (3d) 753
Halliday v Nevill (1984) 155 CLR 1
Swales v Cox (1981) 72 Cr App R 171
R v Cant (2001) 138 NTR 1
King v The Queen [1969] 1 AC 304
Crowley v Murphy (1981) 34 ALR 496
Simpson v Attorney-General [1994] 3 NZLR 667
Six Carpenters’ Case (1610) 8 Co Rep 146a; 77 ER 695
Chic Fashions (West Wales) Pty Ltd v Jones [1968] 2 QB 299
Ghani v Jones [1970] 1 QB 693
Applebee (1995) 79 A Crim R 554
Coward v Allen (1984) 52 ALR 320
Bartlett v Weir & Ors (1994) 72 A Crim R 511
Reynolds & Anor v Commissioner of Police of the Metropolis [1985] 1 QB 881
Challenge Plastics Ltd v Collector of Customs (1993) 42 FCR 397
No. SCC 297 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 5 November 2010
IN THE SUPREME COURT OF THE )
) No. SCC 297 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
V
GARY SHANE AUSTIN
ORDER
Judge: Refshauge J
Date: 5 November 2010
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
Background
On 20 April 2009, an information on oath was laid before a Magistrate alleging that there were reasonable grounds for suspecting that on, or in the clothing that is being worn by, or in any property in the apparent control of the accused, Gary Shane Austin, the applicant in the proceedings before me, there may be found ‘methylamphetamine, utensils used in the administration of methylamphetamine, syringes, spoons, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies, accounts or documents’ being things connected with an offence of trafficking in a controlled drug other than cannabis under s 603(7) of the Criminal Code 2002 (ACT).
As a result, the Magistrate, apparently being satisfied that there were such reasonable grounds as alleged, issued a warrant under s 187(2) of the Drugs of Dependence Act 1989 (ACT), authorising 66 named members of the Australian Federal Police, with the assistance and by the force that is necessary and reasonable, to:
(a) enter any place in the Australian Capital Territory which a police officer named in this warrant believes on reasonable grounds to be occupied by the person authorised to be searched by this warrant; and
(b) search the person named in this warrant, or the clothing that is being worn by, or property in the apparent control of the person named in the warrant; and
(c) seize any such clothing or property, specified in paragraph (b), that a police officer named in this warrant believes on reasonable grounds to be connected with the offence described in this warrant.
This warrant was subject to the following conditions:
A. Enter or search is authorised at any time.
B. The warrant will cease to have effect no later than 17 May 2009.
The preservation of a person’s privacy and the unviolability of his or her home are not only important common law rights but also preserved and requiring respect under s 12 of the Human Rights Act 2004 (ACT). A search warrant is an interference with that right, statutorily authorised under appropriate conditions and apparently thereby justified in a free and democratic society: s 28 of that Act. See R v Collins [1987] 1 SCR 265 (at [23]); Funke v France (1993) 16 EHRR 297; McLeod v United Kingdom (1999) 27 EHRR 493; Camenzind v Switzerland (1999) 28 EHRR 458.
As a unanimous High Court said in George v Rockett (1990) 170 CLR 104 (at 110):
A search warrant ... 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 [of the Queensland Criminal Code], 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.
Their Honours noted at 110-111:
State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying 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.
On 23 April 2009, Mr Austin and his daughter, who is profoundly deaf and intellectually disabled, were in the front lounge room of their home at about 1.00 pm when there was a sudden noise and vibration from the direction of the front door and several crashing sounds as a ram rod smashed through the door.
There had been no prior knock on the door, ring on the door bell, announcement or other request for entry.
Mr Austin says that three people dressed in plain clothes burst through the broken door and yelled “Get down.” Mr Austin says he did not know who the people were and resisted them.
Those three were followed by six more people, all dressed in plain clothes. One of them produced the search warrant and Mr Austin says he then realised that they were police.
This was the execution by various police officers of the search warrant referred to above that had been issued three days earlier. The police officers were all named in the warrant.
The police officers then searched the premises. This included the seizing of a quantity of green vegetable matter that appeared to be cannabis, including bags of compressed green vegetable matter discovered in ammunition tins in a cavity between the back of a kitchen cupboard with a false backing and the wall.
In the back yard was a dog, apparently a bull mastiff ridgeback cross or similar. It was sprayed with oleoresin capsicum spray to prevent it attacking police officers who had attempted to enter the backyard.
Police officers asked Mr Austin to decontaminate the dog’s eyes. He did so. He says that when he returned from doing so, he believed that police had searched his daughter and seized items that she had been carrying “like my personal ID and phone”.
Mr Austin made contact with his son who attended at the premises at about 1.30 pm and took charge of Mr Austin’s daughter after the police satisfied themselves that it was appropriate that he do so.
It appears that no methylamphetamine was found on the premises nor other items mentioned in the search warrant. The items of green vegetable matter were seized by police and Mr Austin was then arrested and charged with trafficking in a traffickable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT).
On 6 August 2009, Mr Austin was committed for trial to this Court.
The application
On 7 April 2010, Mr Austin applied for a stay of the proceedings. See R v Austin [2010] ACTSC 47. Among the grounds for the stay, Mr Austin included the manner of execution of the search warrant. I declined to grant a stay. I said (at [37]):
The absence of evidence from the prosecution about the execution of the search warrant leaves the state of the evidence on the application as being that Mr Austin’s evidence has not been contradicted. The nature of the application, however, is for a stay of the proceedings, not merely to exclude the evidence obtained through the improper execution of the search warrant. The latter application may be made before trial, but needs to be made expressly so that the prosecution knows what is alleged and can be ready with appropriate evidence, if any, in reply.
Mr Austin has now applied for an order that the evidence obtained from the execution of the search warrant be excluded on two grounds:
(1) that the warrant did not expressly authorise the seizure of cannabis and the police did not have reasonable grounds for departing from the terms of the warrant or, alternatively, they did not provide grounds, and have not demonstrated that they had reasonable grounds, for departing from the terms of the warrant; and
(2) that the manner of execution of the warrant was improper.
Mr Austin relied on s 138 of the Evidence Act 1995 (Cth) to claim that these improprieties (or contraventions of the law) meant that I had a discretion to exclude this evidence and that I should exercise that discretion.
Mr Austin swore an affidavit deposing to, inter alia,
(1) the forcible entry to his premises without prior request for entry and refusal or denial;
(2) the fact that the police were in plain clothes and did not identify themselves;
(3) the apparent search of his disabled daughter; and,
(4) the costs charged to him of $1500 by ACT Housing for repairs “to the premises”.
A number of documents purporting to be affidavits were sought to be tendered by the respondent prosecution. Two were in proper form. Two referred to two annexures said to be marked “A” and “B” but had only one annexure note which was not marked either “A” or “B” and nor were the annexed documents themselves marked. Three were signed by the Justice of the Peace apparently as a qualified witness but neither had been signed by the deponent, notwithstanding that the qualified witness signed that the affidavit had been sworn or affirmed “in the presence of” the qualified witness.
This is the more troubling since the qualified witnesses were what one might call “in-house” witnesses, namely both persons who performed this task were said to be from the Winchester Police Centre.
It is especially important for qualified witnesses, who are in this way associated with the deponents to affidavits, to take their duties very seriously because there is otherwise a real basis for suspecting that the compliance with the necessary formalities have been disregarded, thus undermining the integrity of the system. If the Court cannot rely on the propriety of such processes, it cannot be satisfied that the evidence of such persons can be received.
I had occasion to refer to the problem of unsatisfactory witnessing of affidavits in the earlier decision, R v Austin, but this is the more serious for the affidavits were to be relied upon by a represented party, as Mr Austin was not in the earlier proceedings. A legal practitioner owes a duty to the court to ensure that the documents, especially affidavits, tendered to the court, are in a proper form to be so tendered and have been properly prepared and in the case of witnesses, made and witnessed as required.
The problem for the prosecution was resolved at the hearing when a number of the persons in whose name the affidavits were prepared were called to give evidence and be cross-examined and their statements which had been the purported annexures were tendered without objection.
Facts
From the evidence, both written and oral, I make findings of the following facts for, of course, the purpose of this application only.
The police involved in this operation sought approval from a more senior officer for “hard entry” when executing the search warrant on Mr Austin’s premises. This was apparently a procedure required by and in accordance with the AFP Practical Guide on Search Procedures. “Hard entry”, as I understand it, means a forced entry, if necessary, without a prior warning or announcement.
The application was based on the fact that the police were searching for methylamphetamine, a powdered substance and, as such, easily able to be disposed of by flushing it down a sink or toilet if warning is given of the imminent arrival of police officers. Approval was given by the senior officer for this reason.
In seeking that approval, the senior officer was not told that Mr Austin had a profoundly deaf and intellectually disabled daughter. He indicated in evidence to me that this factor would not have changed his decision. That appears to accord with the approach approved in Rogers v Moore & Ors (1992) 39 FCR 201 (at 217). I note that this decision was reversed on appeal (but not on a relevant ground) in Rogers v Moore & Ors (1993) 41 FCR 301 but that decision on appeal was itself reversed in Jacobsen v Rogers (1995) 182 CLR 572.
Some police, being, it appears, only officers named in the warrant, then assembled at a shopping centre a short distance from Mr Austin’s house. A female officer was directed to be responsible for attending to Mr Austin’s daughter during the search and she was one of the three officers to enter the house first.
The police then proceeded to Mr Austin’s house. One of the officers attempted to open the door but the handle would not turn and he assumed, not unreasonably, that it was locked. Mr Austin said that it had, in fact, been unlocked. Whether that was so or not, I cannot say, but I find that the police attempted to open the door and genuinely thought it was locked. Mr Austin said in evidence that he had told police this. He may have done so, though the only reference in the transcript of the tape recording of the execution of the search warrant was when he said to his son (who had come to collect and look after his daughter) “put a few clutches up against this [presumably the front door], and, um ... (indistinct) ... it’s unlocked anyway, so it’s unlocked.” (Answer 100).
Without any announcement, knock on the door or ringing the door bell, an officer then rammed the door, smashing it sufficiently for the officers to gain entry. They were, at the time, wearing vests. The first three officers through the door were wearing ballistics vests. These are dark blue in colour with the word “Police” in white fluorescent letters about 3 cms high surrounded by a rectangular border strip of the same white fluorescent material. These were worn over plain clothes. The other police were wearing yellow fluorescent bib-type vests yellow in colour with the word “Police” in red prominently and in large letters on the front and back, again worn over plain clothes. The witnesses for the respondent said that the officers who first entered called “Police” and “Police Search Warrant”. I am satisfied that this is what happened.
Mr Austin said that the police were wearing plain clothes and denied that they were wearing the vests described above. He also said that all they called out was “Get down”. Having heard the evidence of Mr Austin and three of the police officers involved in the search, I am satisfied that they were wearing the vests described above, though over plain clothes, and that they announced their presence by saying “Police”.
There was also a dispute about certain other features of the search but it is not necessary to resolve these issues as they do not affect the matters on which Mr Austin relied in seeking exclusion of the evidence obtained from the search.
Mr Austin also claimed that his deaf and disabled daughter had been searched by police. I am satisfied that, had that occurred, it would have been unauthorised by the warrant and in contravention of Australian law.
Mr Austin, however, did not actually see it occur. His allegation was based on the following circumstances. Mr Austin was asked to decontaminate his dog following the spraying of it with oleoresin capsicum spray (as noted at [11] above). He says he handed his bag to his daughter. Inside it was his wallet containing certain identification, including his driver’s licence, Medicare card and the like. When he returned inside, these items had been seized.
All the police officers denied that Mr Austin’s daughter had been searched. The police officer looking after Mr Austin’s daughter did not see her with a bag until she left the house with her brother as arranged.
It seems to me that, being Mr Austin’s bag, of which he had custody of until he left to decontaminate the dog, it was an item coming within the authority that the warrant gave for it to be searched, since it would be an item that was in the apparent control of Mr Austin.
As noted above (at [10] and [14]) a quantity of cannabis was found and seized. It was estimated to weigh about 2-3kg. The only mention of cannabis in the search warrant was in the description of the specified offence referred to, namely, “Traffic in a controlled drug other than cannabis pursuant to section 603(7) of the ACT Criminal Code 2002”.
It is on these facts that consideration of the challenges raised by Mr Austin falls to be considered.
Search warrants
The basic principles which underpin the question of what right police have to enter into private property are not in doubt. The law was reviewed by the High Court in Coco v The Queen (1994) 179 CLR 427 where the plurality, with whom Deane and Dawson JJ agreed, said (at 435-6):
Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortuous conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. (Footnotes omitted).
There is, thus, no common law right for any person, including police officers, to enter private property and search them without the owner’s permission: Crowley v Murphy (1981) 52 FLR 123. A constable, however, has a common law power to enter premises to arrest or otherwise execute the process of the Crown. In Semayne’s Case (1604) 5 Co Rep 91; 77 ER 194, the Court of King’s Bench resolved:
In all cases where the King is a party, the sheriff may break the house, either to arrest or do other execution of the King’s process, if he cannot otherwise enter. But he ought first to signify the cause of his coming, and make request to open the doors.
The courts, however, have carefully regulated the issue of such warrants. See, for example, Entick v Carrington & Ors (1765) 2 Wils KB 275; 95 ER 807; Feather v Rogers (1909) 9 SR(NSW) 192.
The common law did permit a common law warrant to issue where there was reasonable suspicion that stolen goods were concealed on premises: Jones v German [1897] 1 QB 374.
More recently, statutory provisions have been made to authorise the issue of search warrants. See, for example, Div 10.3 of the Crimes Act 1900 (ACT). Other legislation sometimes makes specific provision, as in the case of the search warrant here issued: s 187 of the Drugs of Dependence Act 1989 (ACT). The relevant provisions of that section are:
(1)In this section:
issuing officer means –
(a)a judge, the registrar or a deputy registrar of the Supreme Court; or
(b)a magistrate; or
(c)the registrar, or a deputy registrar, of the Magistrates Court authorised, in writing, by the Chief Magistrate to be an issuing officer for this section.
private place does not include a place ordinarily private that is for the time being –
(a) used for a public purpose; or
(b) a place of common resort; or
(c) open to the public, on the payment of money or otherwise.
(2)If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be a thing or things of a particular kind connected with a particular offence on, or in the clothing that is being worn by, or in any property in the apparent control of, a particular person and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable –
(a)to enter any place the police officer believes on reasonable grounds to be occupied by the person; and
(b)to search the person, or the clothing that is being worn by, or property in the apparent control of, the person; and
(c)to seize any such clothing or property that the police officer believes on reasonable grounds to be connected with the offence.
...
(7)If, in the course of searching in accordance with a warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds any thing that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.
Clearly this is a statutory authorisation for entry into private premises, if a warrant is issued, and authority to use force in such entry.
The four questions for consideration on this application are:
(1) Was the entry of the police to the premises authorised by the warrant?
(2) Did the police search Mr Austin’s daughter and, if so, was that unauthorised?
(3) Was the search conducted improperly?
(4) Were the police authorised to seize the cannabis found?
If any are answered in the affirmative, then some or all of the items seized during the execution of the warrant may have been evidence obtained improperly or in contravention of an Australian law.
Entry to the premises
Mr J O’Keefe, who appeared for Mr Austin, submitted that the law requires police who seek to enter premises under a search warrant to announce their intention prior to entry. He relied on Semayne’s Case and also Lippl v Haines (1989) 18 NSWLR 620, where Hope A-JA, with whom Meagher JA agreed, said (at 633-4):
The application of the common law rules as to entry by constables holding a warrant to arrest to constables exercising statutory powers to effect arrests without warrant was considered by the Supreme Court of Canada in Eccles v Bourque. There a bench of nine justices sat, and eight agreed, in relation to the matter under consideration, with the judgment of Dickson J. Dickson J described the common law as I have done and then went on to consider whether a police officer exercising a power of arrest without warrant conferred by s 450 of the Canadian Criminal Code had a right to enter, or to enter by force, and if so whether there were conditions upon that power. He concluded that there was nothing in the section which conferred a power to commit a trespass and that therefore the authority must be found in the common law. He concluded that a person exercising a statutory power to arrest had a power to enter a house against the will of the householder but only if:
(a)there were reasonable and probable grounds for the belief that the person sought was within the premises; and
(b)proper announcement is made prior to entry.
In relation to the first question, he concluded that the fact that the fugitive was not found on the premises did not make the entry unlawful, provided that the police officer had reasonable and probable cause to believe that the person sought was in the premises. As regards the second condition he said (at 758; 133-134):
Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.
This decision was re-affirmed by the Canadian Supreme Court in Landry (1986) 26 DLR (4th) 368.
To the same effect was what was said by the third member of the court, Gleeson CJ (at 622). His Honour explained the rationale for prior announcement as follows:
A number of authorities have explained the reasons for this second condition. They are also expressed in the words of Police Instruction No 31, which observes that the breaking of outer doors is so dangerous that it should only be resorted to in extreme cases. Obviously, the danger referred to is that of physical injury which is likely to follow when armed men burst into a house. The facts of the present case provide a vivid example of what is likely to result from such an occurrence, even when the occupants of the house are completely innocent persons sitting at home minding their own business.
Mr O’Keefe submitted that as there had been no prior announcement by the police of their intention to enter and that they had a warrant, the entry was not in accordance with the common law.
In response, Mr M Thomas, who appeared for the prosecution, submitted that the situation was covered by the exception for exigent circumstances. In his careful written submissions, he canvassed a number of US and Canadian authorities, including Wilson v Arkansas 514 US 927 (1995) and R v Cornell [2010] SCC 31. In Richards v Wisconsin 520 US 385 (1997) the US Supreme Court, building on what had been said in Wilson v Arkansas, held
We recognised in Wilson that the knock-and-announce requirement could give way ‘under circumstances presenting a threat of physical violence,’ or ‘where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.’ 514 U.S., at 936. It is indisputable that felony drug investigations may frequently involve both of these circumstances.
In R v Cornell, the plurality of the Canadian Supreme Court held (at [18]-[20]):
[18]Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In the ordinary case, they should give: ‘(i) notice of presence by knocking or ringing the door bell; (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry: Eccles v Bourque [1975] 2 S.C.R. 739, at p 747.
[19]Neither the wisdom nor the vitality of the knock and announce principle is in issue on this appeal. Experience has shown that it not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public: Commission of Inquiry into Policing in British Columbia, Closing the Gap: Policing and the Community – The Report (1994), vol 2, at pp. H-50 to H-53. However, the principle, while salutary and well established, is not absolute: Eccles v Bourque, at pp 743-47.
[20]Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justification: see R v Genest [1989] 1 S.C.R. 59 at pp 89-91; R v Gimson [1991] 3 S.C.R 692 at p 693.
Their Honours went on (at [23]-[24]):
[23]First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R v DeWolfe 2007 NSCA 79, 256 N.S.R (2d) 221 at para 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed ‘through the “lens of hindsight”’: Crampton v Walton 2005 ABCA 81, 40 Alta L R (4th) 28 at para 45.
[24]Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R v Asante-Mensah 2003 SCC 38, [2003] 2 S.C.R. 3 at para 73; Crampton at para 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.
Nevertheless, Mr O’Keefe submitted that the “exigent circumstances” exception was a North American doctrine that did not apply in Australia. He cited no authority.
In the light of the adoption of that exception by all three judges in Lippl v Haines, that was a bold submission by Mr O’Keefe. Certainly, I should not depart from a decision of an intermediate court of appeal in Australia, even though not strictly bound, and should ordinarily follow it: Scott v CAL No 14 Pty Ltd & Ors (2007) 17 Tas R 72 (at 83 [35]); Carrick v J (1989) 39 A Crim R 235 (at 250-1); Marshall v Watt [1953] Tas SR 1 (at 14-15).
In any event, the approach has been reaffirmed on a number of occasions. In O’Neill (2001) 122 A Crim R 510, the New South Wales Court of Criminal Appeal had occasion to visit the question again. Mason P (with whom Sully and Dowd JJ agreed) made it clear (at 515 [25]) that there was an exigent circumstance exception to the requirement for a proper announcement to precede entry. What was at issue in that case, however, was whether a proper prior announcement had been made such that no consideration was given to the nature of exigent circumstances.
See also Director of Public Prosecutions (NSW) v Nassif (2002) 135 A Crim R 391 (at [14]). Indeed, the statement of the law in Canada set out in Eccles v Bourque (1974) 50 DLR (3d) 753, which was accepted in Lippl v Haines, and in which Dickson J (on behalf of the court) enunciated in R v Cornell (at 133-4) the exigent circumstances exception (as set out at [51] above), has been accepted as good law in this country in Halliday v Nevill (1984) 155 CLR 1 per Brennan J (at 16).
Further, there is some UK authority which clearly suggests that there are exceptions to the “prior announcement” rules, though I cannot find there the use of the term “exigent circumstances”. The principle, however, seems to be the same. See Swales v Cox (1981) 72 Cr App R 171 (at 176).
Accordingly, I am satisfied that exigent circumstances do permit entry to premises for the purposes of executing a search warrant without a prior announcement.
Regrettably, however, there is little jurisprudence in this country on the meaning of ‘exigent circumstances’. Given the express adoption by cases such as Lippl v Haines, O’Neill and Halliday v Nevill of the Canadian jurisprudence, I see no reason why I should not have regard to that.
In the first place, Lippl v Haines addresses some of these issues. For example, Hope A-JA said (at 636-7):
It would not be practicable to list all possible exigent circumstances. Chasing a person who has committed a felony into his house could be one’ as obviously could be a case where someone was at a window or other aperture with a gun, firing or ready to fire at police outside.
It is to be noted, however, that this was a case of an arrest warrant rather than of a search warrant.
In the most recent Canadian decision of R v Cornell, the reference to harm to those executing the search warrant or the occupants and the destruction of evidence seems to be reasonably included in the legitimate circumstances that would be exigent. This seems to me also to accord with common sense.
Accordingly, I am satisfied that the “exigent circumstances” exception includes a need, based on reasonable grounds, to ensure that evidence, for which it is in the contemplation of the warrant to authorise a search and seizure, will not be destroyed.
Here, I am satisfied that the relevant officials gave proper and reasonable consideration to this question.
Mr O’Keefe submitted that a prior announcement followed by an almost instantaneous (he said after a few seconds) entry would almost certainly prevent substantial destruction of evidence. “How much powder can you flush down the toilet in a few seconds?” he rhetorically asked.
There are, however, a number of answers to this.
1. The fact that the question was rhetorical is a problem for Mr O’Keefe. There was simply no evidence to suggest that such opportunity for destruction was de minimis. I cannot take much judicial notice of relevant facts relating to this, but I believe I can accept that once a toilet, perhaps filled with powder, begins to flush it is difficult to stop before the cistern is emptied and the contents of the bowl flushed away. In addition, it is not the seconds between announcement and entry that are only at stake. The announcement may put an occupant on notice. That occupant will, unlike the police in all probability, know the layout of the house and be at the toilet (or sink) well before the police, who must find where it is in order to interdict the destruction which may take time well in excess of the few seconds Mr O’Keefe said was reasonable between announcement and entry.
2. In any event, a mere shout of “Police” followed by an almost instantaneous entry may well not be a proper announcement. Mason P in O’Neill adopted a statement of the proper content of such an announcement from Eccles v Bourque (1974) 50 DLR (3d) 753 (at 758) consisting of “(1) notice of presence by knocking or ringing the doorbell; (ii) notice of authority, by identifying themselves as law enforcement officers; and (iii) notice of purpose, by stating a lawful reason or entry. This would take some few seconds in itself.” Gleeson CJ added in Lippl v Haines (at 622) that “the occupier ... is given an opportunity to permit entry without force”. If that is so, then the scenario painted by Mr O’Keefe would not be a proper prior announcement in any event.
3. Similarly, it seems to me that there is little difference, as a matter of policy, between a shout of “Police” followed by an almost instantaneous entry and an entry during or immediately after which there is an announcement of “Police”. Having regard to the stated rationale for prior announcement, and as described above, the risks that prior announcement are intended to minimise are unlikely to be better managed by the first option than by the second.
Accordingly, I am satisfied that the entry to Mr Austin’s house by the police on this occasion was lawful and there is no occasion for the exclusion of the fruits of the search by reason of the way entry was effected.
Search of Mr Austin’s daughter
I have already set out above (at [12] and [34] – [36]) the facts, allegations and issues surrounding the alleged search of Mr Austin’s daughter.
I find that she was not searched. I find that, if she was holding Mr Austin’s bag after he handed it to her, the warrant authorised the police to search it without that amounting to a search of her. See R v Cant (2001) 138 NTR 1 (at 19).
I confirm that a search of Mr Austin’s daughter was not authorised by the warrant. See King v The Queen [1969] 1 AC 304 (at 311). If the police had proposed to arrest her, the position may have been different. The search of his bag, however, was not a search of her.
The items seized from Mr Austin’s bag are, therefore, not subject to exclusion from being given in evidence and no issue under s 138 of the Evidence Act 1995 (Cth) arises.
Was the search conducted improperly?
It is clear that reasonable execution is an inherent restriction imposed by a warrant: Crowley v Murphy (1981) 34 ALR 496 (at 502, 505, 510, 525). As Hardie Boys J said in Simpson v Attorney-General [1994] 3 NZLR 667 (at 694) “[A] search that is carried out unreasonably exceeds the authority conferred by the warrant.”
The issue here was not clearly articulated by Mr O’Keefe. Mr Austin deposed that his landlord had charged him $1,500 for the costs of repairs for damage done during the execution of the search warrant. Without, however, precise details of that charge, it is not possible to say whether this is excessive and whether it made the execution of the search unreasonable.
It appears from the terms of Mr Austin’s affidavit that the damage was done to furniture as well as to the door. Given that some of the drugs ultimately found were hidden in a false backed cupboard, it is easily conceivable that the searching which located the false-backed cupboard could have caused damage to the property and fittings in it. That, together with damage to the door may have caused damage to the amount claimed. I cannot say. All I can say is that there is nothing inherently unreasonable in the facts as I have found them, though with different evidence the situation may have been different.
On the state of the evidence, I cannot say that the search was conducted improperly.
Were the police authorised to seize the cannabis?
Originally at common law, police or similar enforcement officers were only authorised to seize items that were specified in a warrant: Six Carpenters’ Case (1610) 8 Co Rep 146a; 77 ER 695.
Over time, the common law, as it does, incrementally developed the jurisprudence and explored and, quite frankly, extended the rights of investigators to search and seize. This history is outlined in Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 (at 309-12). At 313, Lord Denning MR described the position in relation to what a police officer could seize when executing a search warrant as follows:
In my opinion, when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him. Test it this way: Suppose the constable does not find the goods mentioned in the warrant but finds other goods which he reasonably believes to be stolen. Is he to quit the premises and go back to the magistrate and ask for another search warrant to cover these other goods? If he went away, I should imagine that in nine cases out of ten, by the time he came back with a warrant, these other goods would have disappeared. The true owner would not recover them. The evidence of the crime would have been lost. That would be to favour thieves and to discourage honest men. Even if it should turn out that the constable was mistaken and that the other goods were not stolen goods at all, nevertheless so long as he acted reasonably and did not retain them longer than necessary, he is protected. The lawfulness of his conduct must be judged at the time and not by what happens afterwards.
His Lordship repeated the position in Ghani v Jones [1970] 1 QB 693 (at 706):
I would start by considering the law where police officers enter a man’s house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford LC in Pringle v Bremmer and Stirling (1867) 5 Macph HL 55, 60 and Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299.
Although the authority of Ghani v Jones in Australia is in some doubt with different jurisdictions taking a different view about its application in this country, this disagreement, it appears to me, relates only to the powers of search and seizure without a warrant at common law and does not detract from the statement of the law I set out above (at [77]) so far as search warrants and searches under them are concerned.
There are, however, some constraints on the search under a search warrant. Thus, for example, a police officer must reasonably believe that the items named in the warrant are to be found in the premises. A search warrant cannot be used as a cover for a search intended to be conducted to discovering and seizing items not named in the warrant: Applebee (1995) 79 A Crim R 554. See, however, Coward v Allen (1984) 52 ALR 320. Thus, there must be a reasonable belief at the time of seizure that the items seized are connected with a crime: Bartlett v Weir & Ors (1994) 72 A Crim R 511. Similarly, it is impermissible to seize documents or other items without that reasonable belief in the hope that later sifting through them may produce items that are within the terms of the warrant or otherwise seizable: Reynolds & Anor v Commissioner of Police of the Metropolis [1985] 1 QB 881; Crowley v Murphy (1981) 52 FLR 123 (at 156).
None of these matters were put in issue in these proceedings. None of the police officers were cross-examined to suggest that:
(a) they did not have a reasonable belief that methamphetamines and the other items referred to in the warrant were at the premises;
(b) they intended to search not for methamphetamines and other items mentioned in the warrant but other items, whether including cannabis or not; nor
(c) they had no reasonable belief on finding the cannabis that it was an item which s 187(7) of the Drugs of Dependence Act 1989 (ACT) authorised them to seize if they held that belief.
Of course, it would be difficult to suggest that the reasonable belief referred to in (c) (at [80] above) was not held, as possession of cannabis is in itself an offence.
Mr O’Keefe’s written submissions address this point as follows:
The police did not indicate at the time of the execution of the warrant, nor have they indicated since, what their belief was, or what their reasonable grounds were, for relying on subsection 187(7). There appears to be a tension between the policy intent of paragraph 187(2)(c) and that of subsection 187(7), so that if paragraph 187(2)(c) is to provide any protection from unwarranted seizures the police must establish compliance with the terms of subsection 187(7).
I have to say, I find no tension between s187(2)(c), which permits seizure of clothing and other property “connected with the offence” (namely, the one specified in the warrant as the subject “particular offence”) and therefore statutorily provides for the extent of the authority to seize related items (cf Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397) and s 187(7) which authorises the seizure of items much more broadly, namely connected with the offence but not specified or, alternatively, connected with another offence.
While there is clearly a potential overlap between the two provisions – items may fall into both categories – there does not seem to me to be an inconsistency or other tension.
The statements of a number of the police officers which were tendered referred to them finding cannabis. This was not challenged in the cross-examination of any of them. It seems to me that this is sufficient to bring the provisions of s 187(7) into operation. The possession of cannabis, except in quite limited, and here irrelevant, circumstances, is an offence. To say that officers who find what they say, unchallenged, is cannabis cannot seize it because they have not used some formula such as “which I believe on reasonable grounds to be connected with an offence and which I believe on reasonable grounds is necessary to seize to prevent its concealment, loss, destruction or use in committing, continuing or repeating an offence” is to prefer form for substance.
That is not to say that there will not be circumstances where such a statement will be essential to justify seizure. The seizing of documents or computer items would be important examples where some more express advertence to the requirements of s 187(7) is likely to be required. In the case of items the possession of which are illegal in themselves, it does not seem to me that the important preservation of the rights of occupants and citizens are infringed when the identification of the seized material as such items is the basis used to justify seizure under s 187(7).
Accordingly, this challenge also must fail.
Conclusion
As a result, I cannot find any basis for the items seized during the search at Mr Austin’s premises to be excluded under s 138 of the Evidence Act 1995 (Cth) from admission into evidence.
This application is dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 November 2010
Counsel for the applicant: Mr J O’Keefe
Solicitor for the applicant: Mr J O’Keefe
Counsel for the respondent: Mr M Thomas
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 12 October 2010
Date of judgment: 5 November 2010
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