R v Johnson
[2018] ACTSC 242
•31 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnson |
Citation: | [2018] ACTSC 242 |
Hearing Date: | 23 August 2018 |
DecisionDate: | 31 August 2018 |
Before: | Murrell CJ |
Decision: | The evidence is admitted. |
Catchwords: | EVIDENCE – ADMISSIBILITY –section 138 of Evidence Act 2011 (ACT) – whether evidence obtained in consequence of a contravention of an Australian law – whether evidence obtained in contravention of an Australian law – whether discretion should be exercised POLICE AND EMERGENCY SERVICES – WARRENTLESS SEARCH – section 190 of Crimes Act 1900 (ACT) – whether there is imminent danger of injury – whether a person has suffered physical injury – whether it is necessary to enter the premises immediately CRIMINAL LAW – SEARCH WARRANTS – warrant issued via telephone – sections 185, 194 and 205 of Crimes Act 1900 (ACT) – warrant issued when the issuing officer is outside of the ACT – whether warrant was validly issued |
Legislation Cited: | Court of Petty Sessions Ordinance 1930 (ACT) s 8 Court Procedures Act 2004 (ACT) s 54 Statute Law Amendment Act (No 2) 2001 (ACT) |
Cases Cited: | Gill v Department of Industry, Technology and Resources [1987] VR 681 Grollo v Palmer (1995) 184 CLR 348 Tobacco Leaf Marketing BD v Corte [1983] 3 NSWLR 10 |
Texts Cited: | Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) |
Parties: | Jake Alexander Johnson (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr P Edmonds (Applicant) Ms R Christensen (Respondent) |
| Solicitors Canberra Criminal Lawyers (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 96 of 2018; SCC 97 of 2018; SCC 104 of 2018; SCC 105 of 2018 |
MURRELL CJ:
The Application
In his forthcoming trial, the applicant seeks to exclude firearms and drug evidence that was located by police when they searched his premises at 75/177 Melrose Drive, Lyons (the premises) on 15 November 2017 (the second search).
The applicant faces trial on three counts, which allege that:
(a)Count 1: On 14 November 2017, he possessed a prohibited firearm (that was located in a blue bag outside the premises) without authority to do so. This is an offence against s 42(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) which carries a maximum penalty of 10 years’ imprisonment.
(b)Count 2: On 15 November 2017, he possessed a firearm that was located inside the premises on the second search. This is an offence against s 43(1)(a)(iii) of the Firearms Act which carries a maximum penalty of 5 years’ imprisonment.
(c)Count 3: On 15 November 2017, he trafficked in the trafficable quantity of cannabis that was located inside the premises during the second search. This is an offence against s 603(5) of the Criminal Code 2002 (ACT) (Criminal Code) which carries a maximum penalty of 10 years’ imprisonment.
The evidence that the applicant seeks to exclude relates to Counts 2 and 3 (and minor related charges).
Outline of the proposed Crown case at trial
At about 5:08 PM on 12 November 2017, the applicant was allegedly seen to be in possession of firearms. He travelled in a Mitsubishi Magna in company with another male, Mr Cooper-Lyon. Police obtained CCTV footage of this event.
At about 10:17 PM on 14 November 2017, Police attended an incident at the premises. The applicant and Mr Cooper-Lyon were present. It is alleged that, after noticing the police, the applicant disposed of a blue bag behind a stairwell. Police obtained the blue bag and located a modified wooden bolt action firearm (Count 1).
The Mitsubishi Magna vehicle seen on 12 November was at the scene. Police found a firearm and green vegetable matter within the vehicle. Mr Cooper-Lyon admitted that the vehicle belonged to him. Mr Cooper-Lyon and the applicant were arrested.
At about 11:25 PM on 14 November, police searched the premises (the first search). In the living room they saw green vegetable matter, a set of scales and clip seal bags. At about 11:30 PM, they left the premises.
At about 2:18 AM on 15 November 2018, police applied by telephone to the Chief Magistrate for a search warrant for the premise and the vehicle. The warrant was granted. At about 3:12 AM, police executed the warrant. At the premises, they found a rifle, a quantity of cannabis, a clip seal bag containing 25 rounds of ammunition and a set of digital scales (Counts 2 and 3 and related charges).
Submissions on the application
The applicant contended that:
(a)The first search was unlawful.
(b)The second search was a follow-up to the first search. Consequently, the evidence obtained during the second search was obtained “in consequence of … a contravention of an Australian law” and was prima facie inadmissible under s 138(1)(b) of the Evidence Act2011 (ACT) (Evidence Act).
(c)Further or alternatively, the evidence obtained during the second search was obtained “in contravention of an Australian law” because the warrant purportedly authorising the second search was not validly issued, having been issued outside the ACT.
(d)The evidence was inadmissible under s 138 of the Evidence Act.
10. The respondent submitted that:
(a)The first search was authorised by s 190 of the Crimes Act 1900 (ACT) (Crimes Act).
(b)The evidence obtained during the second search was not obtained in consequence of the first search; the warrant for the second search was not obtained as a follow-up to the first search.
(c)There is no geographical requirement as to where the issuing officer is located when a search warrant is issued.
(d)In any event, the evidence obtained on the second search should be admitted pursuant to s 138 of the Evidence Act.
Was the first search authorised by s 190 of the Crimes Act?
11. Under s 190 of the Crimes Act, a police officer may enter premises in urgent circumstances:
190 Entry in emergencies
A police officer may enter premises where the officer believes on reasonable grounds that—
(a) an offence or a breach of the peace is being or is likely to be committed, or a person has suffered physical injury or there is imminent danger of injury to a person or damage to property; and
(b) it is necessary to enter the premises immediately for the purpose of preventing the commission or repetition of an offence or a breach of the peace or to protect life or property.
12. Although it was not relied upon by the parties, I note in passing that the Firearms Act provides an identical power under s 203(1)(f).
13. Section 190 requires a police officer to hold two reasonable beliefs at the time when he or she enters premises: a belief under s 190(a) and a belief under s 190(b). Each belief must be both subjectively held and objectively reasonable. In New South Wales v Bouffler [2017] NSWCA 185; 95 NSWLR 521, the NSW Court of Appeal considered the meaning of “reasonable grounds” in an equivalent provision in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and, at [87], affirmed the well-known proposition that:
When a statutory provision requires that a state of mind be based or held upon reasonable grounds, the question whether there are reasonable grounds is determined objectively at the time when the relevant power or function is exercised … (citation omitted)
14. The respondent submitted that the first search was conducted because officers believed on reasonable grounds that a person had suffered injury.
15. The evidence that was relevant to the state of mind held by the police officers involved in the first search, S/C Jevtovic and F/C Szabo, was that:
(a)On the night of 14 November 2017, S/C Jevtovic secured a firearm that was near a stairwell. It was a modified .22 calibre bolt action firearm that was loaded with a .22 round. Pulling the trigger would have caused the ammunition to discharge;
(b)S/C Jevtovic removed another loaded firearm from between the driver’s seat and the centre console of a nearby vehicle. It was a blackened and modified .22 calibre bolt action firearm that was in a poor condition. Pulling the trigger would have caused the ammunition to discharge.
(c)F/C Szabo attended the scene in response to a radio transmission seeking assistance as they had two males in custody in relation to a previous incident, as well as a vehicle and a firearm.
(d)When he arrived at the scene, another officer told him that the applicant had been seen to drop a bag in which a firearm was subsequently located. He observed a firearm close to the bag that was a modified .22 rifle. He saw S/C Jevtovic retrieve another firearm from inside the vehicle that was connected to the other male in custody.
(e)At about 11:25 PM, both officers entered the premises. S/C Jevtovic said that he did so “in order to ensure no persons were harmed, given the presence of firearms”. F/C Szabo said that he did so “under section 190 of the Crimes Act”. “Considering the firearms located and no one answering at the unit”, he believed that serious and urgent circumstances meant that police should enter to determine if any person had suffered physical injury.
(f)There was no one inside the residence, but F/C Szabo observed green vegetable matter on a coffee table in the living room.
(g)At 11:30 PM the officers secured the premises.
16. The officers did not assert that they had entered the premises because they had believed that a person “had suffered injury”. Rather, they said that they had entered for the purpose of investigating possible injury to occupants. I accept their evidence. It was unchallenged. Consistent with the stated purpose, the search occupied only five minutes. There was no evidence that anything was seized during the first search, including the green vegetable matter that was observed.
17. Given the proximity of the premises to the two loaded firearms, I accept that it was objectively reasonable to enter for the purpose of investigating possible injury to occupants.
18. However, the evidence falls short of satisfying the requirements of s 190.
19. As to the belief relied upon under s 190(a), there is a difference between entering for the purpose of investigating possible injury and holding a belief that “there is imminent danger of injury to a person” or that “a person has suffered physical injury” (emphasis added). In this case, there was no objectively reasonable basis to believe that there was imminent danger; those likely to be a source of any such danger were under arrest. While there was every reason to believe that a person may have suffered injury, there was no objectively reasonable basis to believe that they had suffered injury. Indeed, the officers did not assert that they held such a belief.
20. Further, there was no evidence of a relevant belief under s 190(b). There was no evidence of a belief that it was “necessary to enter the premises immediately … to protect life” (emphasis added). As stated, there was no prospect of imminent danger because the applicant and Mr Cooper-Lyon were under arrest.
21. I have no doubt that the officers entered the premises in good faith and for the purpose of locating anyone who had been injured and assisting them, but the evidence fell short of establishing compliance with the very strict requirements of s 190.
22. The first search was unlawful.
The search warrant
23. Officer Makings obtained the warrant for the second search. He was aware that the CCTV footage taken on 12 November 2017 showed two men who appeared to be carrying firearms. One was wearing a black singlet with the number “86” printed on the front and the other was wearing a black T-shirt with a rainbow motif on the back. He was aware of the critical events on the night of 14 November 2017, including the fact that the applicant had been seen to walk down the stairwell near his premises and then abandon a blue bag containing an unauthorised loaded firearm. He knew that a second loaded firearm had been found in the vehicle near the premises.
24. Shortly before he applied for the warrant, Makings was told by other police officers that, when they had conducted the first search of the premises, they had seen green vegetable matter on a coffee table.
25. At 2:18 AM on 15 November 2017, Makings obtained the warrant by telephone from the Chief Magistrate, who was at that stage located in NSW. The warrant purported to have been issued pursuant to ss 194 and 205 of the Crimes Act.
26. The warrant purported to authorise a search of the premises for three particular items: a black singlet with “86” on the front in large red print; a black T shirt with a rainbow pattern on the rear; and ammunition, on the basis that there were reasonable grounds for suspecting that those items would afford evidence as to the commission of offences against s 380 of the Crimes Act of possessing an offensive weapon.
27. The warrant also authorised the seizure of any other thing found at the premises in the course of the search that the executing officer believed on reasonable grounds to be evidential material in relation to the nominated offence or any other offence.
Should it be inferred that the evidence obtained in the second search was obtained in consequence of the first search?
28. I infer that an incidental consideration in relation to obtaining the warrant was Makings’ knowledge that cannabis had been observed during the first search. The chronology in his statement indicates that, just before he applied for the warrant, he was told about the cannabis.
29. However, the observation of cannabis at the premises cannot have been Makings’ primary motivator in seeking the warrant, or even a substantial motivator. The warrant authorised the search for three particular items, none of which related to drugs. It is plain that the warrant was obtained primarily for the purpose of obtaining material establishing that the applicant was one of the persons apparently carrying firearms who were depicted in the CCTV footage of 12 November 2017.
30. In Re Lee [2009] ACTSC 98; 212 A Crim R 442 (Lee) at [31], Penfold J observed that:
[E]vidence may be obtained “in consequence of” an impropriety not only where the evidence is an immediate product of the impropriety but also where the evidence can be directly linked to the impropriety (albeit through a process involving several steps). In this case there is a clear chain of causation between the taking of the photograph (in circumstances in which, I have found, it would not have been taken but for the reliance on the defective warrant), the retention of the photograph, and the use of the photograph in the subsequent surveillance operation … I am satisfied that this chain of causation is sufficient to identify the evidence arising from the use of the photograph as evidence that has been obtained “in consequence of” the impropriety associated with the defective warrant. (Citations omitted)
31. The circumstances of the present case differ from those in Lee. In the present case there was a link but no “chain of causation” between the observation of the cannabis during the first search (which was unlawful) and the finding of a trafficable quantity of cannabis during the second search. The warrant authorising the second search was almost entirely motivated by separate considerations, i.e. obtaining evidence of firearms offences on 12 November. There is no doubt that police would have sought a warrant for the second search, regardless of the observation of cannabis during the first search.
32. Although I do not consider that there is a chain of causation linking the unlawful first search during which cannabis was seen to the second search when the drug evidence supporting Count 3 was seized, later in these reasons I will consider how s 138 would operate vis-à-vis Counts 2 and 3, if it was applicable.
Can an ACT Magistrate issue a valid warrant by telephone from NSW?
33. The warrant supporting the second search was issued by the Chief Magistrate signing a s 194 form of warrant in NSW after an urgent telephone application for the warrant was made under s 205 of the Crimes Act.
34. The appellant argued that the warrant was invalid because the Chief Magistrate—logically, any issuing officer—lacks power to issue a warrant pursuant to ss 194 and 205 of the Crimes Act when they are outside the ACT.
Power to issue warrants
35. The source of the Chief Magistrate’s power to issue the search warrant is found in s 194(1) of the Crimes Act, which provides:
194 When search warrants can be issued
(1) An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
36. The term “issuing officer” is defined in s 185 of the Crimes Act as follows:
issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this part, means—
(a) a judge, the registrar or a deputy registrar of the Supreme Court; or
(b) a magistrate; or
(c) if authorised by the Chief Magistrate to issue such search warrants or arrest warrants (as the case may be)—the registrar or a deputy registrar of the Magistrates Court.
37. In part 1 of the dictionary in the Legislation Act2001 (ACT) (Legislation Act), “magistrate” is defined to mean “a Magistrate under the Magistrates Court Act 1930”. The dictionary in the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) defines magistrate to include the Chief Magistrate.
38. Section 205 of the Crimes Act facilitates the obtaining of a warrant in urgent circumstances. It provides:
205Warrants by telephone or other electronic means
(1) A police officer may make an application to an issuing officer for a warrant by telephone, telex, fax or other electronic means—
(a) in an urgent case; or
(b)if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
…
(3) An application under this section shall include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered the further information (if any) that the issuing officer required, is satisfied that—
(a)a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 194.
(5) If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant, the day and the time when it was signed.
(6) The applicant shall then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer, the day and the time when the warrant was signed.
…
39. The “jurisdiction” to issue a search warrant that is conferred on an issuing officer by ss 185, 194 and 205 of the Crimes Act is an administrative function that is given to the issuing officer as a persona designata: see Hilton v Wells (1985) 157 CLR 57; Grollo v Palmer (1995) 184 CLR 348; Love v A-G (NSW) (1990) 169 CLR 307 (Love), at [26]–[27]. The issue of a warrant is a step in an administrative process and thus the issue of a warrant is an administrative function: Love at [27]. It is not a judicial function that is given to a court. Further, in the case of s 185, sub-paragraph (c) of the s 185 definition of “issuing officer” makes it clear that the authority to issue a search warrant is confined neither to the magistrates nor to judicial officers more generally.
40. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Hossain), Kiefel CJ, Gageler and Keane JJ observed at [23] that “jurisdiction” in this context “refers to the scope of the authority that is conferred on a repository”. Their Honours continued:
In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have "such force and effect as is given to it by the law pursuant to which it was made".
41. A warrant is “an instrument made pursuant to a circumscribed statutory authority”: Love at [30]. In order for the warrant to be valid (i.e., to be made “within the jurisdiction” of the issuing officer), there must be compliance with “all of the preconditions which the statute requires to exist” before the warrant is issued, and “all of the conditions which the statute expressly or impliedly requires to be observed”: Hossain at [23].
42. Prima facie, the Chief Magistrate is an “issuing officer” by virtue of her office: see [36]–[37].
43. The issue raised by the applicant is whether, when outside the ACT, the Chief Magistrate (or, logically, any other issuing officer) remains an “issuing officer” within the meaning of s 185 of the Crimes Act.
Is an issuing officer who is located outside the ACT still an issuing officer?
44. Section 185 of the Crimes Act imposes no express statutory precondition that an issuing officer must be an issuing officer who is located within the ACT.
45. However, the applicant argued that, at least in the case of a magistrate, a geographical limit was implied by either or both of s 122 of Legislation Act and s 11 of Magistrates Court Act.
46. I have concluded that neither individually nor together do these provisions require that an issuing officer be an issuing officer who is located within the ACT. Indeed, s 122 supports the contrary position.
Section 122 of the Legislation Act
47. Section 122(1) of the Legislation Act provides:
122.Application to Territory
(1)In an Act or statutory instrument—
(a) a reference to an entity or position by name or description is a reference to the entity or position of that name or description in or for the Territory; and
(b) a reference to a place, jurisdiction or anything else by name or description is a reference to the place, jurisdiction or thing of that name or description in or for the Territory.
48. The applicant contended that, where s 122(1)(a) refers to “in or for the Territory” it means “in and for the Territory”. It was said that the words should be read conjunctively, not disjunctively. Consequently, where s 185 refers to “a magistrate” it means “a magistrate who is both in the ACT and for the ACT”.
49. In R v Lowe [2003] NSWCCA 150; 57 NSWLR 102, the NSW Court of Criminal Appeal considered the equivalent—but different—provision in NSW. In NSW, s 12 of the Interpretation Act 1987 (NSW) uses the expression “in and for New South Wales”. At [34] the Court said:
The definitions of judicial officer, judicial proceeding and judicial tribunal in s 311, which together define the words “any judicial proceeding” in s 322(a), must be read and interpreted in accordance with s 12(1)(a). This means that “judicial officer” in s 311 means a judicial officer “in and for” New South Wales, judicial tribunal means a judicial tribunal “in and for” New South Wales, and a judicial proceeding means a judicial proceeding “in and of” New South Wales.
50. In Tobacco Leaf Marketing BD v Corte [1983] 3 NSWLR 10 at 13 Hunt J held that, in NSW, the words of a statute are to be read as if the words “in and of NSW” were incorporated within the statute, which is then to be interpreted according to its ordinary meaning.
51. In support of his argument, the applicant cited Jumbunna Coal Mine NL v Victoria Coal Miners Association (1908) 6 CLR 309 (“Jumbunna”) at 363. However, Jumbunna is authority for the proposition that legislation is presumed not to have extraterritorial effect: see, e.g., the recent application of Jumbunna in Moore v Scenic Tours Pty Limited (No 2) [2017] NSWSC 733. The principle does not impose a physical or geographical restriction on a repository of statutory power in the exercise of that power, but confirms that, in the absence of express provision, legislation should not be taken to assert extraterritorial effect.
52. Properly understood, the purpose of s 122 is to give statutory recognition to the presumption against legislation asserting extraterritorial effect.
53. The plain words of s 122 deny the applicant’s claim and assist that of the respondent. The expression “in or for the Territory” is disjunctive. It says that, where ACT legislation refers to an entity or position, it means an entity or position of that name or description in or for the Territory, as contextually appropriate. Where ACT legislation refers to a place, jurisdiction or anything else by name or description, it refers to the place, jurisdiction or thing of that name or description in or for the Territory, as contextually appropriate.
54. Applying the contextually appropriate part of the disjunctive s 122 expression, where s 194 empowers an issuing officer to issue a warrant for premises, it means premises in the Territory (not premises for the Territory). And where s 122 empowers an issuing officer who is a magistrate it empowers a person who is a magistrate for the Territory (not a person in the Territory who happens to be a magistrate elsewhere).
55. In order to interpret the expression in s 122, it is not necessary to go beyond the plain words of the section. However, the legislative history confirms that the contentious expression should be read disjunctively.
56. Section 122 was inserted into the Legislation Act when the Interpretation Act 1967 (ACT) was repealed and remade: see Statute Law Amendment Act (No 2) 2001 (ACT). The previous provision, s 23A, provided:
23A References to Territory implied
(1) In an Act—
(a) a reference to an entity or position by name or description is a reference to the entity or position of that name or description in and for the Territory; and
(b) a reference to a place, jurisdiction or anything else by name or description is a reference to the place, jurisdiction or thing of that name or description in and of the Territory.
(2)In an Act, a reference to an entity or position established under an Act whose name includes the words ‘of the Australian Capital Territory’, ‘for the Australian Capital Territory’, ‘(ACT)’, or words having a similar effect, need not include the words.
(emphasis added)
57. It should be inferred that the legislature deliberately changed the expression from “in and for” (in an earlier iteration—“in and of”) to “in or for”. A similar scenario, albeit in a different statutory context, was considered in Gill v Department of Industry, Technology and Resources [1987] VR 681. In that case, the Full Court of the Victorian Supreme Court found that the word “or” should not be interpreted conjunctively where an earlier draft of the legislation had used the word “and”. Murray J said at 686:
Notwithstanding the fact that apparently in early drafts of the legislation paras (a) and (b) were conjunctive, the change from the word “and” to the word “or” appears to have been deliberate.
58. Applying s 122, the expression “issuing officer” in s 185 of the Crimes Act means “issuing officer for the Territory”. Similarly, the expression “magistrate” means “magistrate for the Territory”. The Chief Magistrate was an “issuing officer” when she signed the warrant because she was a magistrate for the Territory. Her Honour did not cease to be the Chief Magistrate for the ACT when she crossed the border into NSW.
Section 11 of the Magistrates Court Act
59. The applicant submitted that the power conferred by s 194 of the Crimes Act should be read down in the context of s 11 of the Magistrates Court Act, which provides:
11 Acts done beyond ACT
(1) An act done by a magistrate, because of his or her office, outside the ACT for the purpose of authenticating the signature of a person to an instrument intended to take effect in the ACT is, unless the act is required by law to be done in the ACT, effective for any territory law.
(2) An oath or affirmation administered by a magistrate, because of his or her office, outside the ACT in any case in which an oath or affirmation may be administered by a magistrate is, unless the oath or affirmation is required by law to be administered in the ACT, effective for any territory law.
60. The applicant argued that, as s 11 expressly empowers a magistrate to perform certain administrative functions outside the ACT, it should be implied that a magistrate is not authorised to perform other administrative functions outside the ACT.
61. I do not accept the applicant’s submission.
62. First, although a magistrate (including the Chief Magistrate) qualifies for membership of the category “issuing officer” under s 185 by virtue of their appointment as a magistrate, the power that is exercised under s 194 is an administrative power conferred by that provision on an “issuing officer”. While there is an overlap in the membership of “issuing officers” and “magistrates”, the roles are distinct in power, function and character.
63. Second, it would be an odd result if one category of “issuing officer” was impliedly restricted to exercising their power only when within the ACT but the other categories of “issuing officer” were not.
64. Third, s 11 has remained substantially unchanged from its original form, found in s 8 of the Court of Petty Sessions Ordinance 1930 (ACT) as ordained in 1930. Later, a comprehensive statutory regime concerning search warrants—including ss 185, 194 and 205 (originally numbered ss 349AA, 349E and 349R)—was inserted in to the Crimes Act in 1994 by the Crimes (Amendment) Act (No 2) 1994 (ACT). Any negative penumbra upon a magistrate’s power created by s 11 was impliedly negated by the subsequent enactment of a comprehensive legislative scheme to specifically deal with the issuing of warrants.
65. In further written submissions, the applicant argued that s 122 is a general provision that should not be read as removing the limitation on the powers of a magistrate that is implied by s 11 of the Magistrates Court Act. As I have found that s 11 does not impliedly limit the administrative power conferred by s 194 of the Crimes Act, it is not necessary to deal with this argument.
66. I note in passing the respondent’s submission that the issue of a search warrant falls within s 11(2) because it involves the administration of an oath within the meaning of s 11(2). I doubt that s 11(2) has that effect. However, for present purposes it is unnecessary to decide the question because the respondent accepted that the warrant for the second search was issued under s 205 of the Crimes Act, i.e. before any information was sworn and any related oath was administered.
Section 54 of the Court Procedures Act
67. The respondent relied on s 54 of the Court Procedures Act 2004 (ACT), which provides:
The business of a court, wherever it is conducted, is taken to be conducted in court.
68. But as stated at [39] above, issuing a warrant is an administrative function that does not involve the exercise of judicial power, or the “business of a court”.
Section 196 of the Legislation Act
69. The respondent also relied on s 196 of Legislation Act, which provides:
196 Provision giving function gives power to exercise function
(1) A provision of law that give a function to an entity also gives the entity the powers necessary and convenient to exercise the function.
(2) The powers given to the entity under subsection (1) are in addition to any other powers of the entity under the law.
70. The respondent submitted that it was “necessary and convenient” to the exercise of the urgent warrant issuing function that it may be exercised from a geographical location outside the ACT and that a geographical limitation would frustrate the issue of such warrants.
71. It is unnecessary to consider this argument.
Should the evidence be admitted under s 138 of the Evidence Act?
72. I have found that there was no chain of causation linking the unlawful first search during which cannabis was seen to the second search; the evidence obtained on the second search was not obtained “in consequence of” a contravention of an Australian law. Further, I have found that as an “issuing officer” the Chief Magistrate was empowered to issue the search warrant when she was in NSW; consequently, the evidence was not obtained “in contravention of an Australian law”.
73. Nevertheless, I will consider whether, if either contention was correct, the evidence should be admitted under s 138 of the Evidence Act.
74. Section 138 of the Evidence Act provides:
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3)Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
75. While the terms of s 138 are mandatory (the evidence “must not be admitted”), the s 138 balancing test (whether the desirability of admitting the evidence outweighs the undesirability of admitting it) is evaluative. The evaluation must have regard to the matters set out in s 138(3). In Heyward v Bishop [2015] ACTCA 58; 73 MVR 426, Refshauge, Penfold and Ross JJ said at [5]–[6]:
A person seeking to rely on s 138 for the exclusion of evidence must first establish, on the balance of probabilities, that there has been an impropriety or contravention of Australian law in the obtaining of that evidence, or that the evidence was obtained in consequence of such an impropriety or contravention (s 138(1)).
Once that is established, the court must weigh the desirability of admitting the evidence and the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained; the evidence may only be admitted if the desirability of admitting it outweighs the undesirability of doing so having regard to how it was obtained.
76. I turn to consider the matters set out in s 138(3) of the Evidence Act.
s 138(3)(a)—the probative value of the evidence
77. The evidence has high probative value. The second search resulted in police locating the firearms and drugs which are the basis for the serious allegations of unlawful conduct contained in Counts 2 and 3.
s 138(3)(b)—the importance of the evidence in the proceeding
78. The evidence of the firearms and drugs found during the second search is the basis of the Crown case in relation to Counts 2 and 3 and there is no other, untainted evidence supporting the core case.
s 138(3)(c)—the nature of the relevant offence…and the nature of the subject matter of the proceeding
79. The alleged offences are serious. Count 3 carries a maximum penalty of 10 years’ imprisonment. Although Count 2 carries a maximum penalty of only 5 years’ imprisonment, there is a high public interest in controlling the unauthorised possession and use of firearms. Consequently, there are significant public policy reasons favouring the prosecution of both counts.
s 138(3)(d)—the gravity of the impropriety or contravention
80. The first contravention was the unauthorised entry by police into residential premises. That was a very serious matter because it involved a serious invasion of privacy. However, it must be understood in the context that the police genuinely believed that they had followed relevant procedures and were authorised to enter. They were motivated to enter for the purpose of assisting anyone who might be injured in circumstances giving rise to a reasonable possibility that someone had been injured.
81. If the second contravention occurred and the search warrant was unauthorised because the Chief Magistrate purported to issue it from NSW, then her Honour’s action in doing so involved a legal error and followed a long-standing and frequently used practice. Nevertheless, it was a serious contravention because it was part of a pattern of conduct that facilitated serious breaches of privacy. On the other hand, the contravention by police of mistakenly acting on a search warrant that they believed had been properly issued was much less serious; police are entitled to assume that issuing officers have followed correct legal procedure in relation to such matters.
82. When there are various instances of illegality, they should be carefully and separately assessed. But regard should also be had to the combined and cumulative effect of all illegal acts: R v Rondo [2001] NSWCCA 540; 126 A Crim R 262 at [137]. The combined and cumulative effect of the contraventions (assuming that they were contraventions – and I have found that they were not) was very serious indeed.
s 138(3)(e)—whether the impropriety or contravention was deliberate or reckless
83. A contravention is deliberate if the contravener is aware that their conduct involves an impropriety or contravention. It is reckless if the contravener is aware of the reasonable possibility that their conduct involves an impropriety or contravention. In this case, the alleged contraventions by the Chief Magistrate and the police were not deliberate and there is no evidence that they were reckless. They were well motivated actions that involved alleged legal error.
s 138(3)(f)—whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the ICCPR
84. Article 17 of the International Covenant on Civil and Political Rights recognises the right to privacy and protection of the law against the arbitrary or unlawful interference with the right to privacy. The right is also recognised in s 12 of the Human Rights Act (ACT). There is a public interest in protecting human rights: Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) at [964].
85. In McElroy v The Queen [2018] VSCA 126 (McElroy), the Victorian Court of Appeal considered the admissibility of evidence obtained during an unlawful search of a mobile phone, which may be contrary to the right to privacy in Article 17. The Court found that the evidence had significant probative value and formed part of a strong circumstantial case alleging armed robbery, a serious offence. At [166], the Court found that:
There is no doubt that [the likely violation of right to privacy] is a consideration that weighs against the admissibility of the evidence of the Facebook messages. However, we do not consider it, by itself or in combination with any other countervailing consideration, to be sufficient to prevent the admission of that evidence.
86. The circumstances of the present case are analogous to those in McElroy. Further, the evidence in the present case is more important than that in McElroy, as it is critical evidence, not merely one part of a circumstantial case.
s 138(3)(g)—whether any other proceeding … has been or is likely to be taken in relation to the impropriety or contravention
87. The Court is not aware of any other proceeding.
s 138(3)(h)—the difficulty of obtaining the evidence without impropriety or contravention of an Australian law
88. The police and the issuing officer had the relevant power and authority to obtain the evidence and issue the warrant lawfully pursuant to the Crimes Act. No doubt, they would have done so had they realised that any conduct was unauthorised.
Conclusion on admissibility under s 138
89. Overall, the circumstances of the present case are analogous to those considered by Burns J in Henderson v Billing [2015] ACTSC 226; 299 FLR 262. His Honour admitted evidence pursuant to s 138 of the Evidence Act where there had been non-compliance with the provisions of s 205 of the Crimes Act. At [27]–[28] his Honour said:
The present case is one where the desirability of admitting the evidence clearly outweighs the undesirability of admitting it. The probative value of the evidence is high, and it is important evidence in the charge against the appellant. Most importantly, this was not a case where police acted with high-handed disregard of the appellant’s rights.
The respondent contacted a Magistrate and, so far as he was aware, was granted lawful authority by the Magistrate to search the premises and to seize any evidentiary material. The respondent did everything he reasonably could to ensure that the search was lawful, and to protect the rights of the appellant.
90. If—contrary to the above findings—any of the alleged contraventions did occur, then I am satisfied that the evidence should be admitted pursuant to s 138 of the Evidence Act. The desirability of admitting evidence of high probative value and critical importance that is the product of well-motivated legal errors far exceeds the significant undesirability of doing so because of the breach of human rights (the right to privacy) associated with the obtaining of the evidence and the fact that the evidence could have been obtained without contravention of an Australian law.
91. The evidence will be admitted.
| I certify that the preceding [91] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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