R v Jesson
[2009] NTSC 13
•7 April 2009
R v Jesson [2009] NTSC 13
PARTIES: THE QUEEN v JESSON, ANTHONY TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORYJURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION FILE NO: 20728892 DELIVERED: 7 April 2009 HEARING DATES: 1–5, 8–9 September 2008 JUDGMENT OF: MILDREN J CATCHWORDS: CRIMINAL LAW – s 26L Evidence Act application – whether search warrant valid – s 120B Police administration Act – whether evidence of admissions not recorded electronically are admissible – whether expert evidence of coded language concerning drug dealing admissible – voice identification evidence.
STATUTES:
Evidence Act 1995 (NSW)
Evidence Act 2007 (NT), s 26L
Misuse of Drugs Act 2008 (NT), s 2(a)(ii)
Police Administration Act 2005 (NT), s 117, s 118, s 118(4), s 118(5),s 118(8), s 120B, s 120B(1)(a), s 120B(1)(b), s 120B(1)(ba), s 120B(4), s 120B(6), s 120C, s 139, s 142(1), s 142(1)(a) , s 143, s 148B(2), s 161
Telecommunications (Interception and Access) Act 1979 (Cth), s 46A
Trespass Act, s 13(1A)
CITATIONS:
Followed:
Bulejcik v The Queen (1995–1996) 185 CLR 375
R v Solomon (2005) 92 SASR 331Ridgeway v The Queen (1995) 184 CLR 19
Referred to:
Bunning v Cross (1977–1978) 141 CLR 54
Carr v Western Australia (2007) 176 A Crim R 555
Chow v The Queen (2007) 172 A Crim R 582Hart v Commissioner of Australian Federal Police & Ors (2002) 124 FCR
384
Johns v Australian Securities Commission & Ors (1993) 178 CLR 408
Nguyen v The Queen (2007) 173 A Crim R 557Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194
CLR 355
R v Cant (2001) 138 NTR 1
R v Inland Revenue Commissioners; ex parte Rossminster Ltd [1980] AC
952
Stapleton v The Queen (1952) S6 CLR 358
The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159
REPRESENTATION:
Counsel:
Crown: E Armitage Accused: J Tippett QC Solicitors:
Crown: Office of the Director of Public
ProsecutionsAccused: Maleys Judgment category classification: A
Number of pages: 44 IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINR v Jesson [2009] NTSC 13
No. 20728892
BETWEEN:
THE QUEEN
Plaintiff
AND:
ANTHONY JESSON
Defendant
CORAM: MILDREN J REASONS FOR RULING (Delivered 7 April 2009)
| [1] | a commercial quantity of cannabis plant material between 16 September and |
The accused is charged with taking part in the unlawful supply of 14 years.
This is an application under s 26L of the Evidence Act 2007 (NT) to determine the admissibility of certain evidence proposed to be lead at the trial. The evidence concerns:
1.
Police Administration Act 2005 (NT) in relation to firstly, the search of
premises, namely cabin 131, Hidden Valley Tourist Park and secondly,
the search of a white Holden Commodore utility SA Registration number
XCF–368, registered in the name of the co–accused John Shillito
(Shillito). It is the submission of counsel for the accused, Mr Tippett QC,The validity of two search warrants issued pursuant to s 120B of the unlawful and that the Court in the exercise of its discretion should exclude any evidence discovered by the police as a result of those searches.
2. Senior Constable (DSC) McKellar and the accused and his co–accused
concerning the ownership of two mobile telephones located in cabin 131.
The Crown concedes that the evidence is inadmissible pursuant toThe Crown intends to lead evidence of a conversation between Detective its discretion to admit that evidence on the ground that it would not be contrary to the interests of justice to do so, vide s 143 of the Police Administration Act.
3. investigation, Detective Senior Constable (DSC) Crawley, concerning
some telephone conversations said to have been between the accused’s
brother, Johne Jesson, and other persons, whom the Crown will invite the
jury to infer were the accused and his co–accused. The Crown intends to
call evidence that the conversations included coded messages about the
supply of cannabis. The Crown intends to call DSC Crawley as to the factThe Crown seeks to lead evidence from the officer in charge of the quantities of money and other matters relevant to the possession and supply of cannabis.
| but only three produced calls of interest to the police. In relation to those three numbers, in excess of 2,000 calls were recorded. All of these calls were monitored by DSC Crawley, who became familiar with Johne Jesson’s voice. The Crown intends to call DSC Crawley to identify Johne Jesson as the speaker on each of the calls in question. | |
| [4] | identified. DSC Crawley formed the opinion that, during this period, Johne |
The Crown Case
Between 7 August and 30 October 2007 a warrant issued under s 46A of the Telecommunications (Interception and Access) Act 1979 (Cth) was issued to Northern Territory Police in respect of telecommunications services used or likely to be used by Johne Jesson. Five service numbers were intercepted,
Between 8 and 15 August 2007, there were 20 calls of particular interest the esky were 32 cryo–vac bags of cannabis weighing 8,748.8 grams. Johne Jesson admitted to being in possession of the cannabis thereby located.
Between 17 September and 26 October 2007, a number of calls were made on one of the numbers allegedly used by Johne Jesson to a mobile telephone service 0415 924 556 (the 556 calls). It is the Crown case that each of the 556 calls was made between Johne Jesson and the accused.
| [6] |
These calls were monitored by DSC Crawley who formed the opinion that she had previously heard used by Johne Jesson in the lead up to the arrest on 15 August 2007. She formed the opinion that the code was consistent with arrangements being made between Johne Jesson and the accused for the supply of an illegal drug and other activities related to illegal drug dealing.
| [7] |
Subsequent monitoring of phone calls between 17 September and 26 October meeting arranged for 25–26 October 2007, consistent with an arrangement being made for 24 pounds of cannabis to be delivered to the accused and Johne Jesson at that time.
On 24 October 2007 a telephone booking was taken by the Hidden Valley Tourist Park in the name of Michael O’Connor. As part of that booking a vehicle detail for a Holden XCE–386 was provided and the 556 service
number was also provided. The booking was for two nights for persons due
to arrive on 25 October 2007 and depart on 27 October 2007.
The Crown alleges that on 25 October 2007, Johne Jesson attended at the Hidden Valley Tourist Park where he obtained the key to cabin 131 and paid for one night’s accommodation. The Crown alleges that Johne Jesson then went to and waited at cabin 131.
The Crown alleges that Shillito is the registered owner of XCF–368. That vehicle was seen by police, who were conducting surveillance, travelling north along the Stuart Highway near the Township of Adelaide River at
1.40 pm on 25 October 2007. It was next sighted by police at 2.10 pm on the Stuart Highway near Coolalinga and at 2.35 pm it was observed turning into Hidden Valley Road and then into the Hidden Valley Tourist Park. The
Crown alleges that the driver of the vehicle was the co–accused, Shillito.
| [11] |
The Crown case is that Shillito, having walked into the reception area of the him at the Hidden Valley Hotel. The Crown alleges that Shillito then drove to the Hidden Valley Hotel, collected the key and then returned to the Hidden Valley Tourist Park where he parked XCF–368 between cabins 130 and 131. He removed items from the rear tray of the vehicle and entered cabin 131.
Later that afternoon, Johne Jesson went to the Hidden Valley Tourist Park with a female companion. Johne Jesson and the female sat on the front deck of cabin 131 drinking beer with Shillito. Whilst there, Johne Jesson received a phone call from the accused, Anthony Jesson. Johne Jesson told Anthony Jesson that he was sitting on the balcony with “old mate” (which the Crown alleges is a code reference to Shillito) and the “fishing trip is arranged for tomorrow” (which the Crown alleges is a coded reference to illegal drug activities).
| [13] |
Shortly prior to this, during the afternoon of 25 October 2007, SC Payne from his superintendent to apply for the warrant. He completed a typed pro forma for a s 120B search warrant. This document was endorsed on the back by the superintendent to signify that he had approved an application being made by SC Payne to approach a Justice of the Peace to apply for a search warrant.
| [14] |
|
At 4.30 pm SC Payne moved into cabin 130 at the Hidden Valley Tourist Park, directly next to the vehicle. At 9.00 pm, Shillito caught a taxi from the front gate of the Hidden Valley Tourist Park.
| [17] | number of other police officers, purported to execute the search warrant in |
On 26 October 2007, the accused arrived at Darwin Airport on Jetstar flight JQ670 from Adelaide, arriving in Darwin at 1.55 am. There he caught a taxi to the Casino where he joined Shillito. Both men returned to the tourist park and entered cabin 131 at 3.40 am on Friday 26 October.
At 4.25 am Senior Constable (SC) Payne, who was accompanied by a driver’s licence in the name of Shillito. In the other wallet he located two driver’s licences in the name of the accused, one licence for the Northern Territory and the other for South Australia. The drivers’ licences had photographs of the licensees which corresponded with the occupants. The wallets were then returned to the place where he found them. DSC McKellar then activated the mobile telephones and searched the call registers. The mobile telephone nearest the accused’s wallet was a pink, silver and black Nokia. McKellar made some notes of some numbers that had been dialled and some numbers received from the call register and also made notes of some business cards found in the accused’s wallet.
| [21] | mobile telephones and the change in separate bags intending that this |
The mobile telephones were then placed with the wallets where they were originally located.
| [19] | telephone warrant from Mrs Wright. The same procedure was gone through |
Subsequently, at 4.50 am, SC Payne made a second application for a executed and the vehicle searched. Located in hidden compartments inside the vehicle were a number of bags of cannabis, weighing in all 10,577 grams or 23.349 pounds. The cannabis was contained in 48 cryo–vac bags.
At 6.00 am on 26 October 2007, Johne Jesson returned to the Hidden Valley Tourist Park and shortly thereafter all three men were arrested. There is no suggestion that any of the accused were cautioned at that time.
After the arrests had taken place, DSC McKellar placed the wallets and that the wallet containing his licences belonged to him and that the pink, silver and black Nokia mobile telephone was his. These items were then put into separate bags and labelled for the purpose of accompanying the accused and Shillito to the watch house as prisoner’s property.
statement in which he made reference to the conversation with the accused
concerning ownership of the pink, silver and black Nokia mobile telephone.
Subsequently, DSC Crawley made a decision that the phones were to be seized and conveyed a message to DSC McKellar through DSC Leafe to that effect. DSC McKellar then seized the phones and put them in two exhibit bags for that purpose. The phones were later sent to the forensic section of the Northern Territory Police for fingerprinting and to see if DNA could be located on them. These results were negative.
No notes were made by DSC McKellar of the conversation he says that he had with either accused concerning the mobile telephones and there is no reference to this conversation in the statement which he made on
3 December 2007. It was not until 11 June 2008 that he made a further occurred. At the time when the statement was made on 11 June 2008 by DSC McKellar, he had no notes in order to refresh his memory of the conversation.
The Searches were Both Unlawful
It was submitted by Mr Tippett QC on behalf of the accused, that both of the searches were unlawful. Essentially the argument of Mr Tippett QC is that there was never a warrant issued.
Section 120B of the Police Administration Act is contained in Part VII Division 2A of the Act. The heading to the Division is “Special provisions about dangerous drugs”.
[26] Section 120B provides as follows:
“120B Search warrants
(1) Where it is made to appear to a justice, by application on
oath, that there are reasonable grounds for believing –
(a)
that there is at a place a dangerous drug, precursor or drug manufacturing equipment;
(b)
that a dangerous drug, precursor or drug manufacturing equipment may be concealed on a person or on or in property in the immediate control of a person; or
(ba) that a dangerous drug, precursor or drug manufacturing equipment may, within the next following 72 hours –
(i) be brought on or into a place; or
(ii) be concealed on a person or on or in property in the immediate control of a person,
the justice may issue a warrant authorising a member of
the Police Force named in the warrant, with suchassistance as the member thinks necessary, to search –
(c) in a case referred to in paragraph (a) or (ba)(i) – (i) the place;
(ii) any person found at the place; and (iii) any person who enters the place while the search is in progress; and (d) in a case referred to in paragraph (b) or (ba)(ii), or in respect of a person referred to in paragraph (c)(ii) or (iii) – (i) the person;
(ii) the clothing worn by the person; or (iii) the property in the immediate control of the person.
(2)
A warrant issued under subsection (1)(a) or (ba)(i) authorises the member to whom it is issued to direct a person referred to in subsection (1)(c)(ii) or (iii) to remain at the place for as
long as is reasonably required for the purposes of the search
of the place and of the person.(3)
Section 112(1) of the Criminal Code applies to and in relation to a person directed under subsection (2) as if the person were in the lawful custody of the member while so directed.
(4) Under this section –
(a)
an application for a warrant and a submission concerning an application may be made in whole or in part;
(b)
information concerning an application may be furnished in whole or in part; and
(c) an oath may be administered,
| [27] | if there is a dangerous drug in certain premises; under s 120B(1)(b) if a |
by telephone, telex, radio or other similar means.
(5) A warrant issued under this section shall remain in force for such period as the justice issuing it specifies in the warrant. (6) Where a warrant is issued as the result of an action taken
under or in pursuance of subsection (4), the justice issuing it
shall send it to the Commissioner within 7 days after it is
issued.(7) Where it is necessary for a member to satisfy a person that a
warrant under this section was issued authorising the member
to conduct a search and, for reasonable cause, the member
cannot, at the time of the search, produce the warrant, the
member may produce a copy of the warrant completed and
endorsed in accordance with subsection (8) and the production
of the copy shall be deemed to be a production of the warrant.(8) For the purposes of subsection (7), a member shall –
(a) complete a form of warrant substantially in the terms of the warrant issued; and (b) write on that form of warrant a statement that a warrant in those terms was issued giving – (i) the name of the justice who issued the warrant; and
(ii) the date, time and place on and at which it was issued.”
It is to be noted that s 120B authorises a search warrant under s 120B(1)(a) place or be concealed on a person or in property in the immediate control of a person.
Under s 120B(4) an application for a warrant and a submission concerning an application for a warrant may be made by telephone.
| [30] | s 118 and s 120B. Under s 118 it is necessary for it to be shown that it is |
Section 120B is to be contrasted with s 118 which also provides for search warrants by telephone. One of the significant differences between a warrant under s 117 or s 118 as contrasted with s 120B is that a warrant may be issued in respect of a dangerous drug that may be brought onto premises or be concealed on the person of an individual within the next following 72 hours.
There are a number of other differences in the drafting of the provisions of difference in that s 118(8) specifically provides that where it is necessary for a court in any proceeding to be satisfied that an entry or seizure was authorised by warrant issued by a Justice and the warrant signed by the Justice is not produced in evidence, the Court shall assume unless the contrary is proved, that the evidence or seizure was not authorised by the warrant. There is no similar provision in relation to s 120B warrants. There are also provisions under s 118 that prevent a police officer from making a second application for a warrant if the first application has been refused. That provision does not apply in relation to s 120B warrants.
It was submitted that in determining the processes required to be undertaken by police officers to obtain a valid search warrant under s 120B regard may be had to the provisions of s 117 and s 118. I agree in general terms with
this submission that in construing s 120B the Court must have regard to the
Act as a whole. As was said in Project Blue Sky Inc & Ors v Australian
Broadcasting Authority[1]:
“[69] The primary object of statutory construction is to construe the
relevant provision so that it is consistent with the language
and purpose of all the provisions of the statute. The meaning
of the provision must be determined “by reference to the
language of the instrument viewed as a whole”. In
Commissioner for Railways (NSW) v Agalianos, Dixon CJ
pointed out that “the context, the general purpose and policy
of a provision and its consistency and fairness are surer
guides to its meaning than the logic with which it is
constructed”. Thus, the process of construction must always
begin by examining the context of the provision that is being
construed.[70]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”
However, I do not accept the submission that, where s 120B makes no specific provision, the requirements of s 118 are impliedly imported. In my opinion, s 120B is a special provision in a different sub–division of the Act and must be construed according to its terms: see also R v Cant[2]. The first question is whether the Justice issuing a warrant under s 120B is required to complete and sign the warrant at the time that the warrant is issued.
| [33] | by the Justice. So much is clear from s 120B(7) and s 120B(8). In my |
I think it is clear that there must be a written warrant completed and signed in R v Inland Revenue Commissioners; ex parte Rossminster Ltd[3]:
“There is no mystery about the word “warrant”: it simply means a
document issued by a person in authority under power conferred in
that behalf authorising the doing of an act which would otherwise be
illegal.” [4]
It is clear on the facts of this case that at the time of the execution of the supposed warrants there was no warrant in that sense in existence.
I turn now to consider the effect of the deeming provision, s 120B(7). In my opinion, that provision does not deem a copy of the warrant completed and endorsed in accordance with s 120B(8) to be the warrant if there is no warrant in existence in the first place. The deeming provision only goes so far as to deem production of a copy to be production of the warrant; it does not deem the copy to be the warrant where there is no warrant in the first place.
The evidence was that in each case at about 9.30 am on 26 October SC Payne attended at the home of Mrs Wright and asked her to endorse the copies of the warrant made by SC Payne, which she did. On the search
warrant relating to cabin 131, Mrs Wright endorsed the warrant as follows:
“Kay Wright JP 26/10/07 9.37 am warrant approved by phone
25/10/07 at 3.10 pm”
| [37] |
In relation to the warrant concerning the search of the vehicle, Mrs Wright 4.50 am”.
The question then arises whether by endorsing the warrants in this way, this was a sufficient compliance with the section. Did this make the duplicate copy of the warrant the original warrant so that the original warrant and the copy of the warrant was the same document?
| [39] |
I have no doubt that a document which is imperfect at the time of its because there was never a warrant in existence at the relevant time. The best that can be said about the warrants is that the Justice by endorsing the copy of the warrants the following morning created a warrant at that time. This was, at best, the creation of the warrants after the warrants had already been executed. I think it is plain from the wording of s 120B that a warrant must be issued, ie signed by the Justice, prior to its execution.
In R v Cant[5], Thomas J held that a supposed warrant issued in identical circumstances to that which occurred here required the Justice of the Peace to create a document which was the original warrant and required it to be in existence at the time that the warrant was executed. In arriving at her conclusions, her Honour referred to George v Rockett[6]. I note that in that case the full bench of the High Court said[7]:
“To insist on strict compliance with the statutory conditions
governing the issue of search warrants is simply to give effect to thepurpose of the legislation.”
| [41] | Hart v Commissioner of Australian Federal Police & Ors[8] where their Honours dealt with the construction of statutes authorising the search of premises and |
Counsel for the respondent referred me to the observations in passage[9]:
to the use of search warrants as an important and legitimate tool in
the detection and prosecution of criminal offences. Where the
language of the statute authorising their use offers choices between
one construction requiring fine legal judgments in the issue and/or
execution of warrants and another which is more likely to be
consistent with operational realities then the latter construction is
generally to be preferred. The need to recognise the operational
realities in which warrants are executed was acknowledged by the
learned primary Judge, who referred in that connection to Dunesky v
Commonwealth (1996) 89 A Crim R 372, at 382–383, per Lockhart J.“… effect must be given to the importance attached by the legislature The tension between the public and private interests involved in the issue and execution of search warrants was referred to by Lockhart J in Crowley v Murphy (1981) 52 FLR 123, at 141–142 (Northrop J agreeing at 132). His Honour cited the observation of Lord Cooper in Lawrie v Muir [1950] SLT 37, at 39–40: “From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict – (a) the interest of the citizen
to be protected from illegal or irregular invasions of his
liberties by the authorities, and (b) the interests of the State to
secure that evidence bearing upon the commission of crime
and necessary to enable justice to be done shall not be
withheld from Courts of law on any merely formal or
technical ground. Neither of these objects can be insisted
upon to the uttermost. The protection of the citizen is
primarily protection for the innocent citizen against
unwarranted, wrongful and perhaps high–handed interference,
and the common sanction is an action of damages. The
protection is not intended as a protection for the guilty citizen
against the efforts of the public prosecutor to vindicate the
law. On the other hand the interest of the State cannot be
magnified to the point of causing all the safeguards for the
protection of the citizen to vanish, and of offering a positive
inducement to the authorities to proceed by irregularmethods.”
See also Trimboli v Onley (No 3) (1981) 56 FLR 321, at 332–333, per
Holland J. These remarks relate more to attacks upon the scope of
warrants and action under them than to the construction of the
statutes authorising the issue of such warrants. They nevertheless
expose adequately the policy issues and legislative purposes which
should inform construction. In particular, there is no requirement that
the Court approach that task armed with a prima facie hostility to the
invasion of privacy that is necessarily involved in the exercise of
investigative powers. Privacy is but one of the interests to be taken
into account in construing legislation authorising the exercise of such
power.”
However, I would not regard the failure to issue a warrant at all as a mere quillity. In my opinion, it is fundamental that there must be a written warrant in existence at the time of its execution. In the result, I agree with her Honour’s decision in R v Cant[10].
In relation to the search of the vehicle, s 120C of the Police Administration Act provided at the time as follows:
“120C. Searching vehicles, &c.
| [45] |
|
A member of the Police Force may stop and search, and detain for the purposes of that search –
(a) an aircraft, ship, train or vehicle if the member has reasonable grounds to suspect that a dangerous drug, precursor or drug manufacturing equipment may be found on or in it; (b) a person found on or in the aircraft, ship, train or vehicle; or (c) a person in a public place if the member has reasonable grounds to suspect that the person has in his or her possession, or is in any way conveying, a dangerous drug, precursor or drug manufacturing equipment.”
No submissions were made originally in reliance upon s 120C that the search of the vehicle was valid notwithstanding the warrant may be invalid. I therefore invited counsel to provide written submissions.
It is to be noted that s 120C does not specifically refer to the need to have a warrant. By subsequent amendment to s 120C it is now clear that no warrant is required as the opening words of the section now provide:
“A member of the police force may, without warrant, stop, detain and
search the following…”It was submitted by Mr Tippett QC that the power of a police officer to search under s 120C is limited to a vehicle which is in motion and then stopped and does not apply to a vehicle which is already stopped. In my opinion the power should not be so constrained. It would not enhance the
purpose of s 120C to require that a police officer, who reasonably suspects officer to prevent a stationary vehicle from departing. I accept that submission. In my view the words “stop and search, and detain” apply whether the aircraft, ship, train or vehicle is in motion at the time or not.
that a vehicle which was stationary, but which he believed on reasonable
grounds contained a dangerous drug, to have to wait until the vehicle was
put in motion in order to search it. All the more so with an aircraft, ship or
train. In the case of an aircraft, it may be difficult for a police officer to
mobilise a vehicle in order to stop an aircraft which is taxiing to an airstrip.
| [48] |
| ||
| [49] | believing that the vehicle contained cannabis when he applied for the s 120B |
It was not suggested that SC Payne did not have reasonable grounds for the search of the vehicle was lawfully carried out.
| [50] |
|
So far as civil liability is concerned, s 161 of the Police Administration Act provides that in certain circumstances when an action is brought against a member of the police force for any act done by that member in accordance with the terms of a warrant issued by a Justice or Magistrate, such member shall not be responsible for any irregularity in the issue of such a warrant. However, the police could not rely upon s 161 in this case as there never was a warrant in the first place.
| [52] |
Alternatively, it may be suggested that the police were protected by officer is not civilly liable for an act done or omitted to be done in good faith in the performance or purported performance of his or her duties as a member.
Counsel for the accused, Mr Tippet QC, submitted that all s 148B(2) does is to provide statutory protection to the police for commission of a tort such as trespass; it does not go so far as to make it clear that the act was not
tortious. In other words, in his submission, the act was still a tort; it was just that it was not amenable to a claim for damages if the member acted in good faith, etc.
Counsel for the Crown did not seek to rely upon s 148B(2).
In any event, it seems to me that s 148B(2) does not apply as that is a general provision and s 161 is a special provision relating to protection of members of the police force purporting to carry out a search in accordance with the terms of a warrant.
which he was led to believe was required. He did not first read the
provisions of the Act nor did he look up any police standing orders before
applying for the warrant. He was unaware of the decision of Thomas J in R v
I therefore conclude that the search of cabin 131 was unlawful.
Counsel for the accused submitted that I should, in the exercise of my discretion, reject any evidence obtained by the police as a result of the search of cabin 131 on public policy grounds. The relevant principles are
| discussed in a number of authorities including Bunning v Cross[13]; Ridgeway v The Queen[14]; The Queen v Swaffield; Pavic v The Queen[15]. | |
| [58] | Bunning v Cross[16] |
In , Stephen and Aitken JJ, with whom Barwick CJ agreed, discretion. The first of these considerations is whether the illegality was deliberate or reckless or arose only from a mistake.
So far as SC Payne’s evidence is concerned, I accept that he believed that he was executing a valid warrant. According to his evidence this was one of the first occasions on which he had applied for a telephone warrant under
s 120B of the Police Administration Act and he followed the procedure until shortly before the hearing in this matter.
| [60] |
|
According to Superintendent Gordon, the police provide to Justices of the Peace forms of warrants so that they may be filled out, but that there are times when a Justice may not have a warrant form to complete available to them. According to his evidence this could occur on about 20 per cent of the occasions that such warrants were sought.
[62] In R v Cant[18], Thomas J, when considering the criteria relevant to the application of her discretion in that case, said:
“The fact that the Justice of the Peace and to a lesser extent the encouraged or tolerated by those in higher authority in the police force. For future reference I suggest that the reasons for ruling in this matter be drawn to the attention of the Commissioner of Police.”
police officer who obtained the warrant had such a fundamental lackof understanding of the requirements of the Police Administration
| [63] |
That is a warning by a member of this Court that should have been taken are invalid have been tolerated by those in higher authority. This point was made in the joint judgment of Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen[19] when their Honours said:
“Thus, the weight to be given to the public interest in the conviction
and punishment of those guilty of crime will vary according to the
degree of criminality involved. The weight to the given to the
principle considerations of public policy favouring the exclusion of
the evidence – the public interest in maintaining the integrity of the
Courts and ensuring the observance of the law and minimum
standards of propriety by those entrusted with powers of law
enforcement – will vary according to other factors of which the most
important will ordinarily be the nature, the seriousness and the effect
of the illegal or improper conduct engaged in by the law enforcement
officers and whether such conduct is encouraged or tolerated by
those in higher authority in the police force or, in the case of illegal
conduct, by those responsible for the institution of criminal
proceedings.”
On the basis of the evidence of Superintendent Gordon, I am compelled to the conclusion that he was well aware that it was the duty of the Justice to complete a warrant at the time when the application was approved over the telephone and to subsequently forward it to the Police Commissioner. He
was also well aware that this was not always being done and it appears that
no training was given to police officers which specifically dealt with the
problems which were identified in R v Cant[20], despite the fact that Thomas J
considered the matter of sufficient importance to suggest that her judgment
should be referred to the Commissioner. Mr Tippett QC submitted that in all
of the circumstances this Court should not tolerate or be seen to tolerate a
continuing and fundamental failure by the police to ensure that proper
warrants were obtained.
Ms Armitage submitted that the police officer applying for the telephone warrant does not have x–ray vision and cannot see whether the Justice is properly filling out the warrant. Mr Tippett QC submitted that the matter was easily remedied. The police officer seeking the warrant should ask the
Justice if the Justice has a blank copy of the warrant available to be completed and if so should verify with the Justice the precise terms of the warrant and that the warrant has been signed. Ms Armitage in response submitted that the police had no such responsibility based on the doctrine of the separation of powers.
In my opinion, the submission of Mr Tippett QC is correct. The matter is able to be easily verified by the police officer and in my opinion it is his duty to ensure, before executing a telephone warrant, that a proper warrant,
| [69] |
in the same terms as the copy warrant which he has written out, has been
created and signed by the Justice. This he can only do by asking the Justice
questions of the kind to which I have referred. It would be unlikely in the
extreme that a Justice would lie about such matters. If the Justice did not
have a form of warrant to complete, the police officer could then apply to
another Justice and go through the same procedure again.
So far as calling in aid the doctrine of separation of powers, the act of a Justice in granting a warrant is an administrative act and not a judicial one. There is certainly nothing improper, in my opinion, in seeking to ensure that the Justice has in fact complied with the Act. The ease with which the law might have been complied with in procuring the evidence in question is one of the relevant factors to be considered[21].
Another factor of relevance is whether there is equally cogent evidence, untainted by any illegality available to the prosecution at the trial. If so the case for the admission of evidence illegally obtained will be weaker[22].
So far as the search of cabin 131 is concerned, the only evidence of from them. By itself this represents a small part of the prosecution case. If the evidence is excluded no doubt the prosecution case will be weakened, but as I understand it there is other evidence available to the prosecution at the trial, or other evidence could be obtained, upon which the prosecutor may rely.
Another important factor is the nature of the offence charged[23]. The offence with which the accused is charged is no doubt a serious one, but not in the most serious category of offending, neither by reference to the maximum penalty available nor by reference to the facts and circumstances of the case itself. No doubt if there is a conviction, the accused is likely to spend some considerable time in prison.
| [71] | warrant to the Commissioner within seven days after it is issued. I would not |
I should also refer to s 120B(6) which requires the Justice to send the produced if necessary. I do not consider that the purpose of that subsection was intended by the Legislature to have the effect that a breach of the provision should render a valid warrant invalid[24]. Whether or not the Justice complies with that subsection is entirely a matter over which the police have no control. Furthermore it would be a strange outcome if a perfectly valid warrant and a lawful search carried out in pursuance of the warrant were subsequently to be held to be invalid simply because the Justice issuing the warrant failed to send it to the Commissioner within seven days. There may also be good reasons why a warrant was not sent within the relevant time frame; the Justice may have died or mislaid the warrant or simply forgot to do it. I do not consider it would enhance the purposes of the legislation to interpret the subsection to have that consequence.
In the end I have concluded that the balance of considerations must come down in favour of the exclusion of the evidence.
R v Cant[25] was published on 25 May 2001. Her Honour specifically requested that her judgment be referred to the Commissioner no doubt intending that appropriate steps would be taken by the police to remedy the situation. Not only has this not occurred, but the same practices continue to be tolerated. It is a practice which must stop and which can be easily remedied.
| [74] |
If I am wrong in my conclusion that the search of the vehicle was lawful, of my discretion because without that evidence, the prosecution case would collapse and I consider that I have sufficiently exercised my discretion on public policy grounds by rejecting the evidence obtained as a result of the search of cabin 131.
The Admissibility of the Conversation between the Accused and
Detective Senior Constable Chris McKellar
Clearly the conversation is inadmissible under s 142(1)(a) of the Police Administration Act. That provision provides as follows:
“142. Electronic recording of confessions and admissions
(1) Subject to section 143, evidence of a confession or
admission made to a member of the Police Force by a
person suspected of having committed a relevant offence
is not admissible as part of the prosecution case in
proceedings for a relevant offence unless –
(a)
where the confession or admission was made before the commencement of questioning, the substance of the confession or admission was confirmed by the
person and the confirmation was electronically
recorded; or(b)
where the confession or admission was made during questioning, the questioning and anything said by the person was electronically recorded,
and the electronic recording is available to be tendered in
evidence.”
It is common ground that the offence was a “relevant offence” as defined by s 139; that the admissions to be relied upon were made before the commencement of questioning; and that the substance of the admission was not confirmed by an electronic recording. The Crown conceded that the evidence was inadmissible unless the Court exercised its discretion to admit the evidence under s 143. That section is in the following terms:
| [79] | be in the interests of justice to admit this evidence notwithstanding the way |
“143. Certain evidence may be admitted A court may admit evidence to which this Division applies even if the requirements of this Division have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non–compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.”
It is clear that not only had the police failed to comply with s 142 of the Police Administration Act, but that no caution had been administered. Indeed the evidence is that after the police had cautioned the accused, he exercised his right of silence.
| [78] | is inadmissible, but it enlivens a discretion to exclude the evidence[26]. |
The failure to administer a caution does not by itself mean that the evidence about the mobile telephones he believed that the mobile telephones were not to be seized, but were merely to be taken to the police station as prisoner’s property and that was the reason why he asked the accused and his co– accused, Shillito, to identify their mobile telephones.
However, there are a number of considerations as to why I think it would not that the accused denies that any such conversation took place. I accept that it is not part of my function to decide whether or not there was such a conversation as that is a jury question, but I consider it relevant to whether or not the accused can have a fair trial on the issue. The difficulty with the state of the evidence is that no notes were made of this conversation at the time; DSC McKellar’s memory is such that he is unable to remember the precise conversation except in a general way and there is really no supporting evidence which tends to corroborate the police version.
There is some evidence from DSC Leafe, who remained on the veranda with the accused and his co–accused during the search as the security officer, about this subject:
“Q: Did you hear any conversation concerning the phones? –––
At one point, Detective McKellar, Chris McKellar, he asked
Mr Shillito and Anthony Jesson to identify some property.
I believe Shillito just went inside the doorway, I’m not – I can
recall that Mr Anthony Jesson did, but Mr Shillito indicated
some property on the table, which included – I recall seeing a
wallet and I believe there was a phone there as well.Q: Alright, did you hear Mr Jesson say anything? ––– I don’t
recall anything Mr Jesson said.Q: Okay, do you recall whether he said anything, even if you
can’t recall the words? ––– I know he went inside, but
whether he said anything I can’t recall.Q: Where did he go when he went inside? ––– Well I was just in
the doorway, and he moved over towards the table, which is
just inside, where the exhibits officer was located.Q:
Did he move inside before or after Officer McKellar inquired about whose property was whose? ––– He moved inside after he inquired.
Q: Where was McKellar, Officer McKellar? ––– He was situated
on a table, just inside the door to the cabin, on the interior,
and as you walk in the door, to the left, a very short distance
from the door.Q: Where was the property that Mr Shillito was indicating was
his? ––– On that table, well that’s the direction I saw
Mr Shillito indicate.Q: Did you see what the property was that Mr Shillito was
indicating was his? ––– Other than being aware that there was
some, like a wallet and a phone, and that’s the direction I saw
Mr Shillito point, I assumed that’s what he was referring to.Q: Are you able to describe the wallet or the phone that you saw
Mr Shillito point to? ––– I recall the wallet being dark, but
other than that I can’t recall.”
DSC Leafe said that he made no notes of the conversation and did not include any of this information in his statement.
DSC Leafe’s version of the conversation does not marry with the version given by DSC McKellar.
In cross examination DSC McKellar changed his evidence somewhat. He originally said that he was unsure whether he was sitting at the table or whether he went to the doorway to the veranda when this alleged conversation occurred. Subsequently, he seemed to accept that he either went to the doorway to the veranda or went out onto the veranda when he had this conversation and that he picked up the mobile telephones and took them with him.
Secondly, DSC McKellar ought to have realised that it is likely that the phones would be seized. This investigation heavily depended in the first place upon telephone intercepts, a matter which he well knew; and he had
searched the call registers of the phones looking for evidence. Whilst it ought to have crossed DSC McKellar’s mind that the mobile telephones would be seized and taken into evidence.
It seems to me that also the fact that no caution was given is relevant. Having regard to the fact that the accused subsequently exercised his right of silence, I think it is likely that had he been cautioned and had he realised that any admissions he made about the mobile telephone might be used in evidence against him, he would not have said anything about which mobile telephone was his.
Finally, as I have excluded the evidence covering the seizure of the telephones under the s 120B warrant, any evidence about the conversations relating to the telephones would not make sense.
For these reasons I have concluded that it would not be in the interests of justice to admit the conversations relating to the mobile telephone as against the accused.
Voice Identification
| [88] |
As noted earlier, DSC Crawley monitored all of the intercepted calls listened to more than 2,000 calls. It is alleged that during this period she became very familiar with the sound, intonation and manner of speech of the voice making and receiving calls from the intercepted service numbers. It is submitted that the voice was distinctive.
| [89] | Police Administration Act conversation and an electronically recorded |
On 15 August 2007, Johne Jesson participated in an audio recorded s 140 identified himself as Johne Jesson on 18, 19, 23 and 24 October 2007 and also spoke to him in person on 14 October 2007.
The Crown proposes to lead evidence from DSC Crawley that, in her opinion, the voice which she heard on each of the recorded calls was that of Johne Jesson. Alternatively, the Crown proposes to tender into evidence recordings of Johne Jesson’s voice obtained by police of a conversation which the Crown says Johne Jesson had with Shillito. The purpose of tendering into evidence these recordings would be to put before the jury sufficient recorded material for the jury to make their own comparisons between Johne Jesson’s voice recorded on the s 140 tape and the electronic record of interview recordings and the recordings of the voice on the intercepted telephone calls.
| [94] |
|
It is not intended by the prosecutor to lead evidence of voice identification from DSC Crawley as to the other persons to whom Johne Jesson was speaking on the intercepted phone calls.
Counsel for the accused does not object to this evidence so long as there is no attempt to identify through this witness the identity of the other persons involved in the telephone intercepts.
I consider that the evidence of DSC Crawley is admissible. So far as the telephone intercept calls are concerned which relate to the alleged offence which took place between 16 September and 27 October 2007, by this time DSC Crawley was very familiar with the voice, having listened to it on many occasions both prior to and during the relevant period, both through the telephone intercepts and by speaking to Johne Jesson over the telephone herself and by her having been present during a record of interview.
Opinion Evidence as to the Code Used During Telephone Conversations
The Crown also proposes to lead through DSC Crawley evidence that Johne Jesson and others involved in the telephone intercepts were using code to refer to an arrangement to bring into the Territory a large quantity of cannabis.
DSC Crawley commenced employment with the Northern Territory Police in July 1997. In August 2004 she commenced duties in the Drug Enforcement section. Her duties have been solely dedicated to serious drug investigations since then.
She has been involved in numerous drug investigations, both as an investigator and as the officer in charge of an investigation. A number of these investigations have resulted in seizures of dangerous drugs including cannabis, methyl amphetamine, heroine, ketamine, MDMA, cocaine, LSD and steroids. Her experience over the years has provided her with insight as to the argot and codes often used by persons involved in the sale and distribution of illicit substances.
She has also completed a number of courses specifically relating to the field of drug investigation. In 2004 she completed surveillance training conducted with a number of Commonwealth agencies including the Australian Federal
Police, the Australian Defence Force, the Australian Tax Office and the Australian Customs Service. As a result of that training she gained background knowledge on the types of drugs used by drug offenders and their methods of operation. The latter included not only how people involved in the trade carry out anti–surveillance measures, but also include how they use codes in order to avoid detection.
| [99] | undercover police operatives. She has been both an undercover operative |
Since 2004 she has also been involved in the insertion and utilisation of aware that telephone calls could be intercepted by law enforcement agencies.
[100] In 2005, she attended the Ninth National Chemical Diversion Congress in Darwin where she obtained training as to the methods used and adopted by persons involved in the manufacture, transportation, distribution and sale of illicit substances. Additionally, she has completed a clandestine laboratory course with the Northern Territory Police Force in 2006 and has read a wide range of literature which specifically relates to dangerous drug use, production and distribution.
| [101] | quickly identify terminology used by persons involved with dangerous drugs |
As a result of her training and experience she has acquired the ability to illicit activities. Part of her experience has been gained when performing duties listening to conversations as the result of lawfully obtained listening devices and also from speaking with registered and unregistered informers.
[102] In addition, in the course of her daily duties, she has interaction with drug users, drug suppliers and drug informants.
[103] As a result of listening to the telephone intercepts involving Johne Jesson, she formed the opinion that he had been using coded language consistent with him referring to marijuana and the distribution of marijuana. Part of this opinion is based upon intelligence that she had received from a drug informant.
[104] It is proposed that she will refer to a number of these conversations which will be played to the jury and offer the opinion that certain words used by the speaker are consistent with a reference to marijuana, that other words are
| consistent with the quantity of marijuana being spoken about, that other words are consistent with being a reference to the arrangements for the distribution of drugs, that other words are consistent with references to money being sent through the post to pay for drugs and that other words are consistent with references to the amount of money involved. |
| [105] |
The telephone conversations to which she refers cover periods between accused, Shillito) and subsequent conversations which were made between 17 September and 25 October 2007 which the Crown alleges do involve both accused.
| [106] | code and ascribing a meaning which may be consistent with the distribution, |
As is apparent from her statement, the methodology involved in identifying the quantities being discussed. Reference to an amount of money such as 26½ dollars is consistent with being a reference to a sum of $26,500. There are also a number of fishing references, some of which are consistent with a reference to cannabis and some of which are consistent with references to arrangements for the distribution of the cannabis. There are also references to videos being sent which in context are consistent with money being sent through the post.
[107] As a result of her understanding of the coded telephone calls made by Johne Jesson in the period between 8 and 15 August 2007, she formed the opinion that Johne Jesson intended to carry a large quantity of cannabis by vehicle
along the Stuart Highway to Darwin on 15 August 2007. At 12.30 pm on Mataranka whilst travelling northbound on the Stuart Highway. There was an esky on the rear tray of the vehicle which he was driving. Secreted in the walls of the esky police located 32 cryo–vac bags of cannabis weighing 8,748.8 grams. This evidence will be relied upon as supporting evidence confirming that the words used by Johne Jesson in the intercepted telephone calls in August 2007 were consistent with references to cannabis and their methods of distribution, etc as understood by the witness.
[108] A similar but not identical code was used in the intercepted telephone calls between 17 September and 25 September 2007. Some of the coded words are different, but nevertheless the principles remain the same.
| [109] | Appeal of the Supreme Court of New South Wales, namely Chow v The |
Counsel for the Crown referred me to two decisions of the Court of Criminal decision in Chow v The Queen30 is not really helpful as the question of admissibility was not discussed. However in the case of Nguyen v The Queen31, there was a detailed discussion of the relevant principles by James J (with whom Spigelman CJ and Hislop J agreed).
[110] There is no doubt that a police officer who has acquired relevant knowledge and experience is able to give evidence that persons involved in the sale and distribution of illegal drugs often use coded language in order to avoid
detection. An officer with relevant experience is entitled also to give
evidence that certain well known words are commonly used to refer to
specific drugs.[111] As a review of the authorities by James J reveals, in some cases the police officer may have sufficient background experience to even give an opinion that certain words have a particular meaning, but usually if the officer is
able to explain the process of reasoning adopted, the officer will be limited to providing an opinion to the effect that a particular reference is consistent with being a reference to drugs or a reference to distribution of drugs or a
reference to the quantity of certain drugs as the case may be.
| [112] |
The statement prepared by DSC Crawley, which became exhibit P13 in these experience and specialised knowledge to enable her to give evidence of the kind which is proposed to be lead. I think it is significant in this case that the officer had the opportunity to test her assumptions about what the codes meant as a result of the August conversations and as a result of the subsequent interception of the drugs at Mataranka. This provided her with a strong basis for saying, in my opinion, that words used in the first group of conversations are consistent with references to cannabis, the distribution of cannabis, amounts of money, weights, etc.
[113] However, there are some references in the second group of conversations to words and expressions which do not appear in the first group of conversations. In the second group of conversations there are references to “bores” which DSC Crawley considers to be a substitution for “videos”. Although the process of reasoning is not fully disclosed in her statement as to how she arrived at this conclusion, I think it is reasonable to infer from her statement that she arrived at the conclusion by reference to the context which included references to other words and expressions familiar to her as part of the argot being used.
| [114] |
In a number of passages in exhibit P13, DSC Crawley states that she formed Counsel for the Crown does not seek to lead evidence in this form, but rather to lead evidence in the form that the words were consistent with having that meaning. In my opinion, DSC Crawley is qualified to give evidence as long it is limited in this way.
[115] I note that the prosecution intends to play the relevant tapes to the jury, the proposal being that by this means the jurors will be able to determine for themselves with the assistance of DSC Crawley’s evidence whether the conversations have the meanings which the Crown submit that they have. No objection was taken to these tapes being played.
[116] Subject to the qualification abovementioned, the evidence of DSC Crawley
[1] (1998) 194 CLR 355 at 381–382 para 69–70 per McHugh, Gummow, Kirby and Hayne JJ
[2] (2001) 138 NTR 1 at 10–11 para [41]
[3] [1980] AC 952 at 1000 per Lord Wilberforce
[4] This passage was cited with approval by the full Federal Court in Hart v Commissioner of Australian
Federal Police & Ors (2002) 124 FCR 384 at 400 para [66]
[5] (2001) 138 NTR 1
[6] (1990) 170 CLR 104 at 110–111
[7] George v Rockett (1990) 170 CLR 104 at 111
[8] (2002) 124 FCR 384 at 399–401 [pars 64–68] per French, Sackville and RD Nicholson JJ
[9] Hart v Commissioner of Australian Federal Police & Ors (2002) 124 FCR 384 at 401 para 68
[10] (2001) 138 NTR 1
[11] (2002) 124 FCR 384 at 410 para 104
[12] See Johns v Australian Securities Commission & Ors (1993) 178 CLR 408 at 426 per Brennan J and
cases cited.
[13] (1977–1978) 141 CLR 54
[14] (1995) 184 CLR 19
[15] (1997) 192 CLR 159
[16] (1977–1978) 141 CLR 54 at 79–80
17 (2001) 138 NTR 1
[18] (2001) 138 NTR 1 at 10 para 40
[19] (1995) 184 CLR 19 at 38
[20] (2001) 138 NTR 1
[21] See Bunning v Cross (1977–1978) 141 CLR 54 at 99
[22] See Bunning v Cross (1977–1978) 141 CLR 54
[24] See the discussion in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194
[23] See Bunning v Cross (1977–1978) 141 CLR 54 at 80
CLR 355 at 388–391 pars 91–93
[25] (2001) 138 NTR 1
[26] See Stapleton v The Queen (1952) 86 CLR 358 at 375–376; Carr v Western Australia (2007) 176 A
Crim R 555, at 557–558; 556–557 (High Court)
[27] See Bulejcik v The Queen (1995–1996) 185 CLR 375; c.f R v Solomon (2005) 92 SASR 331.
[28] (2007) 172 A Crim R 582
[29] (2007) 173 A Crim R 557 30 (2007) 172 A Crim R 582 31 (2007) 173 A Crim R 557
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