R v M C-N; R v Andy
[2021] ACTSC 129
•30 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v M C-N; R v Andy |
Citation: | [2021] ACTSC 129 |
Hearing Date: | 28 – 29 April 2021 |
DecisionDate: | 30 June 2021 |
Before: | Burns ACJ |
Decision: | See [73] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – s 138 of the Evidence Act 2011 (ACT) – invalid search and surveillance warrant – where items seized under invalid warrant – application that evidence be excluded as illegally or unlawfully obtained – where warrant invalid due to omitting offence to which warrant related – where applicants charged with aggravated burglary – where police became aware of warrant invalidity while on property subject of warrant after items had been seized – consideration of “rule of strictness” in relation to discretion under s 138 – whether police conduct deliberate or reckless – consideration of whether conduct of police amounted to deliberate contravention of Australian law or deliberate impropriety – consideration of probative value of evidence |
Legislation Cited: | Crimes Act 1914 (Cth) s 3E |
Cases Cited: | Bunning v Cross (1978) 141 CLR 54 |
Parties: | The Queen (Respondent) M C-N (Applicant) Damien Thomas Andy (Applicant) |
Representation: | Counsel K Lee (Respondent) B Morrisroe (Applicant) J Cooper (Applicant) |
| Solicitors ACT Director of Public Prosecutions (Respondent) KG Criminal Law (Applicant) Aboriginal Legal Service (Applicant) | |
File Numbers: | SCC 298 of 2020; SCC 20 of 2021 |
BURNS ACJ:
Background
The three co-accused Damien Andy, M C-N and Alexander Warne are charged with the following counts:
i. one count aggravated burglary by joint commission, contrary to ss 45A and 312 of the Criminal Code 2002 (ACT) (the Criminal Code);
ii. one count damaging property by joint commission, contrary to ss 45A and 403 of the Criminal Code; and
iii. one count theft by joint commission, contrary to ss 45A and 308 of the Criminal Code.
It is alleged that on 3 September 2020, the three co-accused forced entry into a premises in Taylor, ACT, while carrying baseball bats and sticks and shouted threats at the homeowner. The homeowner then fled the premises with her baby and young child after seeing the co-accused. The co-accused used the weapons to cause damage to property within the premises including two televisions, shelving units and various internal walls, doors and glass windows. The co-accused also stole a white Xbox One-S gaming console and a glass smoking implement being a “bong”.
Later that day, police executed a search warrant on a premises in Karabar, NSW,
(the Karabar premises) the residence of the co-accused Mr Andy. During the execution of the search warrant, Closed-Circuit Television (CCTV) footage was seized which included footage of Mr Andy and Mr C-N driving the same car which was used during the alleged offending at the Taylor premises and carrying a white Xbox console and bong. During the search, police also located two baseball bats and a hammer. Subsequent forensic analysis revealed that samples of glass and paint from these items matched samples taken from the premises in Taylor.
The matters have been listed for trial in the ACT Supreme Court on 13 September 2021.
The application
A Pre-Trial Application dated 16 April 2021 was filed on behalf of Mr Andy and
Mr C-N. The application sought orders that the evidence obtained as a consequence of the search warrant executed at the Karabar premises be excluded on grounds that it was improperly or unlawfully obtained under s 138 of the Evidence Act 2011 (ACT) (the Evidence Act), due to the search warrant being invalid because it did not state the offence to which it related as required by s 3E(5)(a) of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act).
In an affidavit filed 16 April 2021 on behalf of the applicant, Mr C-N, it was asserted that on 3 September 2020 Senior Constable Andrew Murray prepared a search warrant for the premises in Karabar. At 4:48pm on that date, Senior Constable Murray attended the ACT Law Courts and a search warrant for the premises was issued. At a time shortly after executing the warrant, Senior Constables Murray and John Badman became aware the warrant was defective. The items seized by police under the defective warrant were: a CCTV hard drive, a silver baseball bat with glass shards, a wooden broken baseball bat and a wooden handled hammer. At some point later that day, and after they had discovered the warrant was defective, Senior Constable Murray viewed the CCTV footage.
Mr Taylor, representing the third co-accused in the proceedings, Mr Warne, sought to be excused from the present application. Mr Taylor said his client supported the application, on a first principle basis, for the evidence to not be admitted in the trial against him. However, Mr Warne was not involved in the present application as he had filed a notice of alibi, therefore had limited interest in the application as he was not there. I excused Mr Warne and his solicitor from attending the second day of the hearing of this application.
Applicable statute
The relevant parts of s 138 of the Evidence Act are set out below:
138 Exclusion of improperly or illegally obtained evidence
(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.
The relevant section of the Commonwealth Crimes Act reads:
3E 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 or affirmation, that there are reasonable grounds for suspecting there is, or there will be within the next 72 hours, any evidential material at the premises.
…
(5)If an issuing officer issues a warrant, the officer is to state in the warrant:
(a)the offence to which the warrant relates; and
(b)a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c)the kinds of evidential material that are to be searched for under the warrant; and
(d)the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
(e)the time at which the warrant expires (see subsection (5A)); and
(f)whether the warrant may be executed at any time or only during particular hours.
Evidence of Senior Constable Murray
Senior Constable Murray was called to give evidence at the hearing for the application.
Examination in Chief
Senior Constable Murray was the officer responsible for executing the warrant. On
3 September 2020, Senior Constable Murray was told in a briefing about the alleged offences the co-accused were charged with, including the allegation that baseball bats or sticks were used against the complainant. He attended the Taylor premises after the alleged offences had occurred. A bundle of photographs was tendered depicting the damage to the property.
Senior Constable Murray then attended Belconnen Police Station to prepare search warrants for the Karabar premises. He explained he was seeking four warrants: one for the premises of Mr Andy, being the Karabar premises, one related to a Holden Commodore and two for two other individuals. In preparation of the search warrants, he opened an affidavit word document which had been partially pre-filled, and four search warrant documents. He populated the affidavit document with the relevant information and transposed that information from the affidavit to each of the individual search warrants through the “copy and paste” function. He agreed that the information in the affidavit included the offence to which the warrant related. Once all the documents were completed, he printed them, had someone read over them and brought them to court.
Senior Constable Murray said that Senior Constable Badman pointed out that the second condition of the Karabar premises warrant had not been transposed from the affidavit to the warrant itself. He said they realised the issue “either at the conclusion or just prior to the conclusion of that search warrant. It was while we were still at the premises, but it was after the search had been completed”. Senior Constable Murray was not aware of any items that had been seized from the premises after they realised the warrant was defective.
Senior Constable Murray was shown the CCTV footage, which was subsequently tendered, in the courtroom. He said it depicted Mr Andy leaving his premises with a silver baseball bat and getting into a Holden Commodore. It also depicts Mr C-N with a bong and Mr Andy holding a white Xbox console. There was also footage of
Mr Andy carrying a silver baseball bat, a hammer and the handle of a wooden baseball bat into his premises.
Senior Constable Murray gave evidence that all the police on his team, who had exclusively carried out the search warrant, were aware that the search warrant was to be conducted in relation to a “home invasion”. Senior Constable Murray explained the term “home invasion” was used earlier that day by police to refer to the alleged offences.
Senior Constable Murray agreed there was a mistake on the search warrant and said “it was my mistake and my mistake alone”. He agreed there had been no disciplinary action taken against him in relation to this mistake. He said he had been speculating with his Sergeant about its impact on the investigation and considered:
[p]otentially … getting a second warrant issued, potentially re-attending the [Karabar] premises, returning the exhibits and then re-seizing them with a warrant [with] the second condition included and met all the requirements of the old search warrant.
Cross Examination
Senior Constable Murray agreed that he was the executing officer of the warrant and had the sole responsibility for the planning and execution of the warrant. He said it was standard practice that the search warrant and the relevant affidavit would be reviewed by a team leader or another team member. Senior Constable Murray said that the affidavit was “definitely reviewed”, however did not think that the search warrant had been reviewed and did not have a note of any of the warrants being reviewed.
Mr Cooper, the solicitor for the applicant Mr Andy, tendered two internal policy documents from the Australian Federal Police (AFP). The first was entitled “Search Warrant Procedures” and the second “AFP Investigation Practice Standard: Search Warrant”. Senior Constable Murray agreed that the first document required that the AFP executing officer is responsible for “the search warrant execution, seizure of evidential material items and control of the warrant and premises”. He agreed that the second document required that “documents must be reviewed … through self, peer and supervisory review mechanisms” and that it was possible that the warrant in this case was not reviewed.
Senior Constable Murray agreed that when he realised the warrant was defective, himself, the occupiers and other police officers were on the premises.
Senior Constable Murray said that when Senior Constable Badman drew his attention to the error on the warrant:
We had a discussion about the omission of the second condition on that search warrant. We had a discussion about the occupant and the person that was being spoken to, [TR], being made aware as to the offence that the warrant was in relation to. She was additionally provided a second search warrant that I had prepared when I prepared the warrant for the premises. Now that warrant was for the blue Holden Commodore that we have been referring to throughout my evidence. … Senior Constable Badman explicitly explained to her that the offence to which the warrant for the vehicle, which she had which was in black and white and did transpose onto that warrant, and the warrant for the premises related to the same offence. I also made it clear to every person that I was speaking to at that premises during the execution of the search warrant, during the traffic stop on the Holden Commodore, the offence to which that warrant related.
Senior Constable Murray gave evidence that he did not explain to the occupier that the warrant with which they entered the premises did not include the offence as:
[f]rom what I understood [of] the situation, … she already knew the offence that was there… I don’t know whether or not she knew that it was not written on the front page but I was satisfied while we were conducting that warrant that she understood what the offence was in relation to.
Senior Constable Murray said he could not recall specifically when he realised the warrant was defective, and whether or not the execution of the warrant had finished or whether the property officer was going through the items that had been seized. He agreed that the property officer could still have been on the property and that they did not tell the property officer they were in possession of unlawfully obtained property and did not tell them to return the property to the house.
Senior Constable Murray gave evidence that he discussed the warrant defect with Detective Sergeant Innes who was at the premises at that time. He agreed that he did not ask Senior Constable Badman to make a voice record of what had happened, did not make an application for a telephone warrant and did not make contact with the Registrar that day.
In response to whether he had done anything to rectify the situation,
Senior Constable Murray gave evidence that he was of the belief that he had “executed a search warrant that had an administrative error on the front page of it that was made in good faith. We weren’t being duplicitous in our conduct”.
Senior Constable Murray explained that the first thing he did when he returned to Belconnen Police station was to watch the CCTV footage:
The first thing I did was plug the CCTV in and look at that. And my rationale for doing that before I made notes about the error on the warrant was that it [sic] was a male in custody and the evidence that I had being the CCTV from that premises, was critical in either proving – it potentially may have contained exculpatory evidence as to his involvement in the offence. He was being held in custody. If it did, in fact, have exculpatory evidence on it, say for instance he was sitting on the driveway for the two hours in which the offence occurred, then I would have run [sic] Queanbeyan police or New South Wales police and ask that he be released from custody.
In response to cross-examination from Ms Morrisroe, counsel for the applicant
Mr C-N, Senior Constable Murray agreed that he was aware there was a defect with the warrant “well in advance” of watching the CCTV footage.
Senior Constable Murray agreed that he would term the defect as “an administrative error” in that he did not copy something across from one document to another. He accepted that as the warrant holder, he must have an understanding of the specific powers he has in relation to a warrant and what it must contain. He further agreed that the second condition on the warrant is a legislative requirement.
Senior Constable Murray gave evidence that under normal circumstances, he would ensure that the occupier of the premises can read and understand the search warrant. He would record that he had given them the search warrant and, if they agreed, he would record them reading aloud the first couple of lines of that warrant to demonstrate they can read it. He said he would not normally record a discussion with someone about what the warrant relates to. Senior Constable Murray said the purpose of making an oral recording of a search warrant was to explain to the occupant that the police do have a search warrant for those premises, provide them with their rights under Pt 1C of the Commonwealth Crimes Act, and ensure they understand the search warrant or are provided with an opportunity to gain an understanding of it.
Re-examination
In re-examination, Senior Constable Murray gave evidence that he understood the legal consequences of the “administrative error” to be that the search warrant had potentially been “invalidated … but that was something that could be argued at a later time”. He said he believed they were acting in good faith and did all they could to ensure the occupants of the premises understood the offence to which the warrant related. He agreed that part of the reason why he thought the occupants understood to what offence the warrant related was because Senior Constable Murray spoke to a number of people during the arrest of Mr Andy including the occupant of
the Karabar premises.
Senior Constable Murray explained that the warrant was not peer reviewed due to the circumstances surrounding the case including Senior Constable Murray feeling “under the pump” due to the alleged offence involving acts of violence towards a woman who was holding a baby with her young daughter present, and that the offenders were known to the female and knew where she lived.
Senior Constable Murray gave evidence that “it was extremely difficult to undertake the search warrants with the level of compliance from residents”. For example, he said the Mr C-N ran away from the area when his vehicle was stopped, and tried to deny the police officers entry to the Karabar premises. Further, he said Mr C-N urged a dog to attack them while they were attempting to undertake the search warrant.
Respondent’s submissions
Due to the nature of the application, the parties agreed it was appropriate for the respondent to give oral submissions first. The respondent accepted that the warrant was invalid and thus the evidence obtained from the Karabar address was obtained illegally. However, the respondent submitted that the desirability of admitting the evidence obtained outweighs the undesirability of admitting the evidence.
In oral submissions, counsel for the respondent discussed the general discretion available to the court under s 138, as discussed in Kadir v The Queen [2020] HCA 1; 267 CLR 109 (Kadir). The respondent distinguished the discretion under s 138 from the case of Bunning v Cross (1978) 141 CLR 54 (Bunning v Cross), as s 138 refers to both criminal and civil proceedings. The majority in Kadir said at [13]:
As s 138 is not confined to criminal proceedings or to evidence obtained by, or in consequence of, the misconduct of those engaged in law enforcement, the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion. The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally.
Some of the public interests in the Bunning v Cross discretion include the desirability of convicting wrongdoers and balancing that against the undesirability of giving curial approval to unlawful conduct by those whose task it is to enforce the law: see Kadir, [12]. The respondent submitted this proposition was supported by Spiegelman CJ and Blanch J in R v Dalley [2002] NSWCCA 284; 132 A Crim R 169. Spiegelman CJ held at [3] “the more serious the offence, the more likely it is that the public interest requires the admission of the evidence”. Blanch J agreed with that view at [102].
The respondent accepted that this case was a serious impropriety or illegality, in that the failure to include the second condition on the warrant rendered it invalid. Accordingly, the police presence at the premises constituted trespass. Counsel for the respondent referred to the decision of R v Thompson (No 3) [2017] ACTSC 53 (Thompson) where Refshauge J discussed the gravity and impropriety of the invasion of a person’s home being a factor which tends towards the exclusion of evidence. Further, counsel for the respondent accepted there is a right to privacy under the International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) art 17.
In relation to the factors under s 138(3) of the Evidence Act, the respondent submitted that the evidence had significant probative value in the prosecution case, noting in particular the two baseball bats, the hammer, the Xbox console and the CCTV footage obtained.
In relation to the factors under s 138(3)(a) and (b), counsel for the respondent noted that “importance” and “probative value” of evidence have different meanings. In Kadir at [42], the Court said “evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available to the prosecution”. Counsel for the respondent submitted in this case, there was no other equally probative evidence to what was seized under the warrant which implicated Mr Andy or Mr C-N.
The respondent submitted that the gravity of the contravention of s 3E(5)(a) of the Commonwealth Crimes Act was mitigated by the following factors:
i. The contravention was an honest mistake, that is, it was not deliberate or done with malice;
ii. Although the warrant did not state the offence to which it related, the officer understood what the warrant related to and had prepared three other warrants which recorded the offence and which were issued by the Deputy Registrar. One of those warrants related to the Holden Commodore;
iii. The officers executing the warrant understood what the warrant related to;
iv. The occupier of the premises was provided with a copy of the search warrant relating to the Holden Commodore, which did set out the offence to which it related; and
v. Senior Constable Murray explained to the occupiers why the police were there, what was being investigated and what they were looking for.
The respondent conceded that it was not aware of any other proceedings being taken against the officers in relation to the impropriety or contravention. It also conceded that it would not have been difficult to obtain evidence without the contravention.
The respondent agreed aggravated burglary is a serious offence and pointed out that the offence was aggravated for two reasons: it being in company with four persons, and those persons were armed with baseball bats, a hammer and potentially a piece of wood. Further, there was actual confrontation with the complainant and her young children, and actual damage was inflicted on the property.
In relation to the level of the impropriety, counsel for the respondent referred to the case of Smethurst v Commissioner of Police (Cth) [2020] HCA 14; 280 A Crim R 356 (Smethurst) where a warrant was found to be invalid because it misdescribed the offence to which it related. At [25], Kiefel CJ, Bell and Keane JJ noted the legislature in enacting provisions authorising warrants for search and seizure, was concerned in large part by “ensuring that the object of the warrant is identified by reference to a particular offence and that the limits of the authority to search may thereby be discerned”. Their Honours continued that if a warrant did not meet the requirements under s 3E(1) of the Commonwealth Crimes Act, the warrant is not authorised and not valid. Their Honours went on at [27]:
The protective purpose to which these provisions are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised.
In relation to sub-s (3)(e), counsel for the respondent submitted that the impropriety was not deliberate or reckless, but was an honest mistake made with no malice. He conceded it may have been negligent. Counsel for the respondent referred to Thompson where Refshuage J said at [80] “where a breach is made in good faith or is an innocent mistake, it is unlikely that the evidence should be excluded”.
In relation to sub-s (3)(h), counsel for the respondent submitted there was no “deliberate cutting of corners”. He referred to Kadir at [20] where their Honours said “where the impropriety or illegality was neither deliberate nor reckless, the difficulty in obtaining the evidence lawfully is likely to be a neutral consideration”. Counsel for the respondent submitted this should be a neutral factor.
Finally, counsel for the respondent submitted that Senior Constable Murray believed that no property had been seized after the mistake had been realised.
Applicants’ submissions
Joint written submissions and an outline of argument were handed up by the legal representatives for Mr C-N and Mr Andy.
In written submissions, the applicants referred to the decision of Tran v Stapleton [2021] ACTSC 1 where Loukas-Karlsson J noted at [71] that s 138 reverses the common law onus of proof. Once the applicant has persuaded the court that the evidence is tainted by illegality or impropriety, the prosecution must persuade the court that the evidence should be admitted: see Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 (Parker) at [27]-[28].
The applicants submitted that the rule of strictness in relation to search warrants means that the probative value of the evidence does not outweigh the undesirability of admitting evidence that was obtained as a consequence of the defective warrant. They stated the test is objective and it is not relevant that ancillary information is available about the offence the subject of the warrant: Smethurst.
The applicants submitted that as soon as police discovered the defect with the warrant, they omitted to do anything to remedy the problem, and thus the evidence should be excluded to insist upon strict compliance with the law on warrants.
The applicants conceded that the evidence had probative value, was important, and the charge of aggravated burglary is serious (s 138(3)(a)-(c)). However, in oral submissions, counsel for Mr C-N submitted the evidence in relation to Mr C-N was of different and lesser probative value than that of Mr Andy. Counsel submitted that the CCTV footage depicts Mr C-N getting out of a vehicle carrying a bong, which was alleged to have been stolen from the premises, but was not seen leaving the house with any weapon. The Crown’s would not necessarily fail without this evidence: it would simply exclude a portion of the evidence.
In relation to sub-s (3)(d), the applicants submitted that the gravity of the impropriety was serious for two reasons. Firstly, the rule of strictness considers breaches in relation to warrants as a very serious matter. Secondly, the omission of a relevant offence is not a technical breach, but instead goes to the heart of legislative requirements: without the inclusion of a relevant offence on warrants, police would be afforded a general power to enter and search private residences.
It was further submitted by the applicants that the impropriety was both reckless and deliberate at different points under sub-s (3)(e), and should be considered compounding errors. It was a failure to not include the second condition on the warrant in circumstances where it was clear according to police standard practice that the warrants should be reviewed. There was a reasonable inference that if the documents had been peer reviewed, the error would have been picked up. The impropriety became deliberate when the officer became specifically aware that the warrant was defective, and he made a deliberate choice not to seek a telephone warrant or otherwise rectify the impropriety or illegality.
Counsel for the respondent submitted that if Senior Constable Murray had obtained a telephone warrant he would have been entitled to remain in the vicinity of the premises while leaving the seized material on the premises. There was no evidence called to suggest that the material which had been seized would have been destroyed.
In relation to sub-s (3)(f), the applicants submitted that the search involved entering the home unlawfully and taking things without consent, and thus would be considered trespass and potentially aggravated burglary. This is a fundamental breach of human rights. The applicants referred to art 17(1) of the ICCPR which provides that everyone has the right “not to have his or her privacy, family, home or correspondence interfered with unlawfully”.
The respondents submitted that it was significant that no other proceedings were on foot in relation to the act on the part of the officer under sub-s (3)(g). It was submitted that there is no other mechanism by which it appears that the officer will be dealt with for his conduct.
Finally, the applicants submitted there was no great difficulty in obtaining evidence without the impropriety under sub-s (3)(h), as the police could have sought a fresh warrant when they realised the defect.
Counsel for Mr C-N submitted that Senior Constable Murray viewed the CCTV footage following the knowledge that it had been seized unlawfully and prior to him making any note of the fact that the warrant was erroneous.
It was submitted that despite the seriousness of the offence, undue weight should not be given in circumstances where the community ought to be able to rely on police officers to appropriately exercise their powers and appropriately obtain warrants and not enter a person’s premises unlawfully.
Counsel for Mr C-N referred to the judgment of Refshauge J in Thompson and submitted that this was not a “technical breach of merely administrative error”. Rather, the error goes to the very heart of the legislative requirements as made clear in Smethurst. The public is entitled to expect that police will behave in a lawful manner at all times, or at least would take steps to remedy their conduct once they realised their actions were unlawful.
The solicitor for Mr Andy submitted that the breach was both serious, and the police “did nothing about it”. He suggested that the police officers should have telephoned the Registrar for a telephone warrant, and have the property officer remain on the premises, even though he accepted this would still constitute an illegality or impropriety as there would be a continuation of unlawful entry to the premises by police. He submitted that this course of conduct would demonstrate a different attitude of the police which would not necessarily warrant intervention of the court.
Respondent’s submissions in reply
In reply, counsel for the respondent submitted that it may be inferred that the applicants would have attempted to destroy the seized material if the officers did return the material to the premises after they realised the warrant was defective. It was submitted that Senior Constable Murray gave evidence that after the arrest, when the car had been pulled over, Mr C-N ran back to the house “and tried to prevent [the police officers] from getting in”.
It was submitted that Senior Constable Murray watched the CCTV footage before doing anything to remedy the error in the warrant because the Senior Constable had the belief that the footage may have provided exculpatory evidence in relation to
Mr Andy who was in custody at that time.
In relation to the probative value of the evidence against Mr C-N, counsel for the respondent submitted that he understood that if the CCTV footage was excluded, the only identification evidence that would be left is a description of a t-shirt which was found at Mr C-N’s house, and the fact that Mr C-N was positively identified by one person in a photoboard identification, but was not positively picked out in two other photoboard identifications. The respondent submitted that excluding the evidence would substantially weaken the case against Mr C-N.
Consideration
The respondent has rightly accepted that the warrant to search the Karabar premises, and pursuant to which items were seized by police, was invalid. The consequence is that the entry by police onto those premises and the seizure of those items was not authorised by law. At common law the unauthorised entry by a person, including a police officer, onto land occupied by another and the unauthorised seizure of the occupants’ property constitute torts for which the courts will provide a remedy. The actions of the police in entering onto the Karabar premises and seizing items without lawful authority was a “contravention of Australian law” for the purposes of s 138(1) of the Evidence Act: see Parker at [30] per French CJ. The consequence of the application of s 138 is that the items seized by police and which they propose using as evidence at the applicants’ trial are inadmissible unless the respondent convinces me that I should exercise the discretion to admit the evidence found in s 138(1).
The applicants strongly pressed the submission that the “rule of strictness” in relation to the search warrant should result in the Court declining to exercise its discretion to admit the evidence. Certainly in Smethurst, the plurality of the High Court referred, at [25] to “[t]he court’s insistence on strict compliance with the statutory conditions for a warrant”, but that is a principle directed towards determining the validity or invalidity of a warrant. In that regard it is important to recollect that Smethurst is a case about the validity of a search warrant, and the decision does not address the consequences of invalidity for the admissibility of seized property pursuant to s 138 of
the Evidence Act.
This does not mean that the rule of strictness regarding the validity or invalidity of warrants is irrelevant to a determination of the proper execution of the discretion under s 138. The need for strict compliance with the statutory requirements for warrants, and the rationale for the court’s insistence upon strict compliance feed into the matter which the court is obliged to consider in s 138(3), particularly
paragraphs (d) and (f).
This is not a case where police entered onto the premises, conducted a search and seized property in complete disregard for the rights of the occupant of the property. The police prepared an affidavit in support of an application for a search warrant, and made the application before an appropriate person. It was undoubtedly negligent on the part of Senior Constable Murray not to ensure that the alleged offence to which the warrant was directed was included on the warrant. I accept that it is probable that had Senior Constable Murray arranged for the draft warrant to be reviewed by another police officer before the application for the warrant was made, then the defect in the draft warrant would have been detected.
The applicants submitted that the contravention of Australian law by the police was, at various times during the period that police were on the Karabar premises, either deliberate or reckless. It was submitted that the failure of Senior Constable Murray to have the draft warrant revised before making the application to the Deputy Registrar, made the subsequent actions of police in entering upon the premises and seizing items reckless for the purposes of s 138. It was further submitted that the contravention became deliberate when police became aware of the defect in the warrant while they were still at the Karabar premises.
I do not accept the applicants’ characterisation of the conduct of Senior Constable Murray as reckless. Senior Constable Murray did not proceed with the application for the search warrant, or with the subsequent entry onto the property and search, knowing that there was a defect in the warrant or aware that this may be the case. His actions do not establish that he was prepared to “run the risk” that the warrant may be defective. I am satisfied that Senior Constable Murray proceeded on the genuine belief that the warrant was valid.
I also do not accept that the actions of police in remaining at the property and retaining the items they seized after they became aware of the defect in the warrant involved a deliberate contravention of Australian law or a deliberate impropriety. While police became aware of the defect in the warrant while they were still at the Karabar premises, the evidence establishes that they were uncertain what effect this defect had upon the validity of the warrant. At that stage the attending police viewed the defect as an administrative error which was unlikely to have led to any confusion on the part of the occupant of the property as they had explained to the occupant the reason for obtaining the search warrant, and the warrant for the search of the vehicle did include a description of the alleged offence. Those matters, of course, could not render the warrant valid, but they are relevant in determining whether the conduct of police amounted to a deliberate contravention of Australian law or a deliberate impropriety.
The associated submission by the applicants that police should have returned the seized items, retreated from the property and sought a further warrant (by telephone or otherwise) is unrealistic. The demonstrated attitude of antipathy to the police on the part of those present at the property made it highly likely that evidence would be lost or interfered with should it be returned to the occupant of the property.
I accept that it would not have been difficult for the police to have obtained the evidence without a contravention of Australian law or an impropriety. All they had to do was to ensure that the warrant included the alleged offence on its face. I must also accept that the actions of police were inconsistent with the rights of the occupant of the premises, recognised by the ICCPR.
Balanced against these considerations are the seriousness of the offence alleged against the applicants, the probative value of the evidence and its importance in the proceedings against the applicants. The offence of aggravated burglary with which the applicants are charged is a serious offence carrying a maximum term of imprisonment of 20 years. The alleged facts, as recited above, if accepted by the jury, would constitute a serious example of this type of offending. There can be no doubt that the proposed evidence has considerable probative value and that it will be important evidence in the trial of the applicants.
The possibility that the occupant of the property may have been confused as to the basis of the search warrant was considerably ameliorated by the explanation given by police to the occupant, and the inclusion of the alleged offence on the search warrant issued for the car. I also observe that it has not been suggested that the police search went further than would have been permitted if the warrant had not been defective or that police seized items which they would not have been entitled to seize.
Conclusion
Balancing all considerations, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it. The application to exclude the evidence is refused.
I order these reasons are not to be published, other than to parties, until after the trial of the applicants.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns. Associate: Date: |
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