R v McMaster

[2013] NSWDC 90

District Court

New South Wales

Case Title:	R v McMaster
Medium Neutral Citation:	[2013] NSWDC 90
Hearing Date(s):	25 February- 26 February 2013
Decision Date:	26 February 2013
Before:	Murrell SC DCJ
Decision:
Catchwords:	CRIMINAL- application for a permanent stay of proceedings refused -factual subject matter of NSW proceedings formed part of Queensland proceedings - drug trafficking - validity of search warrant - covert execution - evidence excluded because of contravention of LEPRA
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) Drugs Misuse Act 1986 (Queensland), s 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Evidence Act 1995 (NSW), ss 90 & 138
Cases Cited:	R v Elhusseini (1988) 33 A Crim R 155 R v Goulden [1993] 2 Qd R 34 Barton v The Queen (1980) 147 CLR 75 Barron v Attorney-General NSW (1987) 10 NSWLR 215 Williams v Spautz (1992) 174 CLR 509 R v Basha (1989) 39 A Crim R 337 R v Carver [1999] NSWCCA 135 Jago v District Court of NSW (1989) 168 CLR 23 Walton v Gardiner (1993) 112 ALR 289 Rogers v R (1994) 123 ALR 417 Pearce v R [1998] HCA 57 Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187 George v Rocket (1990) 170 CLR 104 Ballis v Randall [2007] NSWSC 422 Ousley v The Queen (1997) 192 CLR 69 Trans Nominees v Ryan and Raven (1986) 42 SASR 361 Application of Lee [2009] ACTSC 98 Parker v Comptroller-General of Customs [2009] HCA 7 DPP v Tamcelik [2012] NSWSC 1008 R v Helmhout [2001] NSWCCA 372 R v Sibraa [2012] NSWCCA 19
Category:	Principal judgment
Parties:	The Crown Paul McMaster
Representation
- Counsel:	Mr Baxter Wright (ODPP) Mr Harrison (accused)
- Solicitors:	Office of the Director of Public Prosecutions Darryl Quigley Partners (accused)
File Number(s):	2008/256637

JUDGMENT

1. The applicant/ accused, Paul Frederick McMaster, elected to be tried by a judge alone and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from a barrister/solicitor.

2. The accused pleaded not guilty to an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) in that, on 25 November 2006 at Ocean Shores, he supplied the prohibited drug methylamphetamine (he had in his possession a quantity in excess of the trafficable quantity).

   Preliminary Issues

   (1)Whether the trial should be permanently stayed for abuse of process.

   (2)Whether a search warrant executed on 25 November 2006 was unlawfully issued and/ or executed.

   (3)If so, whether the evidence obtained during and in consequence of the search should be admitted.

Application for a Permanent Stay of Proceedings

1. The accused seeks to permanently stay the trial (the NSW proceedings), alleging that they are an abuse of process because the factual subject matter of the NSW proceedings formed part of Queensland proceedings (the Queensland proceedings).

2. On 19 April 2011 before Byrne SJA in the Supreme Court of Queensland, the accused pleaded guilty to an offence against s 5 of the Drugs Misuse Act 1986 (Qld) that, between 29 May 2006 and 4 February 2007 in Ipswich and elsewhere in the State of Queensland, he carried on a business of unlawfully trafficking in a dangerous drug (methylamphetamine). The Court imposed a sentence of five years and six months imprisonment and fixed 19 February 2013 as the date when the accused was eligible for parole. He was released to parole on that date.

The Queensland Proceedings

1. The facts founding the Queensland conviction appear at tab 13 of the Crown Voir Dire bundle (Exhibit VD 1). Inter alia, the facts state:

   ... operation DANSON was commenced and conducted between August 2006 and February 2007. Operation DANSON was a joint investigation between the CMC, QPS, New South Wales Police Force (NSW POL) and the New South Wales Crime Commission (NSWCC) targeting in part the drug distribution network between Queensland and New South Wales operated by Tony Parke and his associates.

   Investigations revealed that Tony Parke obtained drugs from the defendant McMaster who lived near Byron Bay in northern New South Wales. Tony Parke would regularly travelled to McMaster's home to buy drugs, transport them back to southeast Queensland and then sell the drugs through his distribution network.

   ...

   Surveillance and telephone intercepts establish that between late May 2006 and early February 2007 Tony Parke regularly travelled to McMaster's home to buy drugs. On average Parke would do so once a fortnight...

   ... It is not clear precisely what amounts of methylamphetamine were sold by McMaster to Tony Parke but intercepted conversations indicate that the amounts varied from as little as a quarter ounce to more than one ounce each time Tony Parke visited McMaster's home.

   ...

   On the night of 25 November 2006 NSW police covertly searched McMaster's home. In a freezer in the lounge police found methylamphetamine in three bags. When later analysed the drug had a gross weight of 67.7 grams and contained a calculated pure weight of 31.8 grams of methylamphetamine ....

   The next day McMaster was recorded on a surveillance device complaining that thieves had stolen drugs from him. He lamented that he had lost some "goey" ...

   (emphasis added)

2. During the Queensland sentencing proceedings, the prosecutor explained:

   (The accused) was supplying Mr Parke who had his business here in southeast Queensland and that's what brings (the accused) into this jurisdiction.

3. On 19 April 2011, Byrne SJA delivered brief ex tempore reasons for the sentence that he imposed, stating:

   You sold the drug over about eight months... The sales were often of relatively small amounts, but on occasions they were up to one ounce. You sold at a wholesale level.

   It is not possible to form any clear view about the full extent of your dealings ...

4. When the accused was sentenced in the Queensland Supreme Court, the Queensland prosecutor and the accused were aware that there were outstanding NSW proceedings concerning the drugs found at the premises of the accused on 25 November 2006.

5. The offence of "trafficking" is not defined in the Drugs Misuse Act 1986 (Qld). In R v Elhusseini (1988) 33 A Crim R 155, the Court held that carrying on a business of trafficking encompasses all acts that are part of such a business, and is not confined to actually selling the substance: per Connolly J at [445], per McPherson J at [165]. In R v Goulden [1993] 2 Qd R 534 at [537] on a charge of unlawful trafficking in Queensland, the Court held that relevant evidence may include evidence of conducting the business of trafficking outside Queensland, as long as the evidence is relevant to establish the conduct or continuation of such a business within Queensland.

The Power to Grant a Stay

1. A court has an inherent jurisdiction to permanently stay proceedings that are an abuse of process: Barton v The Queen (1980) 147 CLR 75. The onus is on the applicant to satisfy the court that any trial would necessarily involve an abuse of process: Barron v Attorney - General NSW (1987) 10 NSWLR 215. The onus is "a heavy one" and the power to stay will be exercised "only in the most exceptional circumstances": Williams v Spautz (1992) 174 CLR 509 at [529].

2. The power to grant a permanent stay is discretionary: R vBasha (1989) 39 A Crim R 337 per Hunt J at [339]. The exercise of discretion involves balancing the interests of the community and those of the applicant. There is a strong public interest in ensuring that persons accused of serious offences face trial: R v Carver [1999] NSWCCA 135 at [33]. However, the public interest in holding a trial does not extend to holding an unfair trial: Jago v District Court of NSW (1989) 168 CLR 23 per Mason CJ at [30]. The notion of fairness (or unfairness) "defies analytical definition" and is largely a matter of "essentially intuitive judgement": Jago per Deane J at [57].

3. A stay will be justified where " the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process": Jago per Deane J at [60]. Although there may be no estoppel, the continuance of proceedings may be unjustifiably vexatious and oppressive where the proceedings seek to litigate a case that has already been disposed of by earlier proceedings: Walton v Gardiner (1993) 112 ALR 289 at [298] - [299].

4. There are two aspects to any abuse of process: first, the aspect of vexation, oppression and unfairness to a party and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute: Rogers v R (1994) 123 ALR 417 per Mason CJ at [421].

Should a Stay be Granted?

1. The essential facts upon which the prosecution relies in the NSW proceedings are those italicised in paragraph 5 above.

2. The accused submits that the evidence concerning the possession of methylamphetamine in NSW for supply Queensland (including the possession that is the subject matter of the NSW proceedings) was a necessary part of the Queensland trafficking in which the applicant was engaged; his role was to supply Parke with methylamphetamine that he kept at his Ocean Shores premises, which Parke then sold in Queensland. In effect, the accused submits that the facts founding the NSW proceedings were subsumed in the Queensland proceedings and the accused has already been sentenced on those facts.

3. In Pearce v R [1998] HCA 57, the accused argued that there was an abuse of process arising from the fact that, in relation to a single episode, he had been charged both with breaking and entering a dwelling house and inflicting grievous bodily harm upon a person, and with maliciously inflicting grievous bodily harm on that person with intent to do so. The Court found that there was no abuse of process. At [29] - [31], the majority noted that there may be cases in which the repeated prosecution of an offender in circumstances where there was no plea in bar available would be an abuse of process. However, the case before the Court was not such a case because the offences were different and to hold otherwise would be to preclude the laying of charges that, together, reflected the whole criminality of the accused.

4. In Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187, the applicant contended that there was an abuse of process because he was charged both with the Commonwealth offence of conspiracy to import a substance and the State offence of knowingly take part in the supply of the substance. The Court upheld the decision of the trial judge to dismiss an application to stay the second count as an abuse of process. In separate judgments, the members of the Court agreed that a central issue was whether the criminality of the offence charged in one count encompassed the criminality of the offence charged in the other. If so, the prosecution of both charges may be oppressive: per Hall J at [41]. One relevant consideration was whether the elements of the offences were the same.

5. In this case, the offence the subject of the Queensland proceedings does not encompass the whole of the criminality of the conduct of the accused. As between the Queensland offence and the NSW offence, both the location of the alleged criminality and its nature differ. The Queensland proceedings relate to a drug trafficking business conducted in Ipswich and elsewhere in Queensland, whereas the NSW proceedings relate to the possession of the drug in NSW. In a federal system, it is inevitable that there will be significant cross-border criminal conduct that impacts on more than one state, resulting in parallel (but not identical) prosecutions. This case is merely an example of that phenomenon.

6. Consequently, while there is an overlap in the evidence relevant to each set of proceedings, neither set of proceedings encompasses the whole of the criminality of the accused. The accused has not satisfied the heavy burden of establishing that the NSW proceedings constitute an abuse of process.

7. The application for a permanent stay is refused.

The Search Warrant

1. The first complaint made by the accused is that, contrary to s 65 (1) of Law Enforcement (Power and Responsibilities) Act 2002 (LEPRA), the authorised officer who issued the warrant failed to record "all relevant particulars of the grounds the authorised officer has relied on to justify the issue of the warrant". The accused contends that, as a result of this failure, the warrant was invalid.

2. Second, the accused contends that the warrant was invalidly issued because the authorised officer had no power to authorise the covert execution of a warrant.

3. A third and related contention is that the warrant was invalidly executed because it was executed in the absence of the occupier and without notice or information to him, as contemplated by LEPRA. It was submitted that the power to postpone service of an occupier's notice for a period of up to 6 months pursuant to s 67 (4) of LEPRA was a power that arose only after the warrant had been executed in circumstances that no occupier was present.

Facts surrounding the search warrant

1. On 24 November 2006, Detective Oldfield applied for a search warrant to enter and search the premises of the accused for drugs and drug paraphernalia.

2. The "grounds in support of (the) application" were contained in a 33 paragraph statement. Paragraph 2 of the statement specified that the application was "for the execution of a COVERT search warrant during NIGHT time hours". The statement advised that, pursuant to a listening device warrant, on 28 October 2006 police had covertly entered the premises of the accused and had connected listening devices. The statement advised that:

   30. The criminal involvement of McMaster in the supply of prohibited drugs is the focus of an ongoing police investigation. The covert search warrant will assist in establishing the quantity and purity of the drug supplied and quantify the amount of Australian Currency secured at the location. Coupled with this fact, the investigation into the criminal activities may continue without compromise. The covert search warrant will allow police to identify the source of the drugs supplied to McMaster.

   31. Due to the ongoing police investigation into the identity of McMaster's supplier, police are seeking a six (6) month delay to serve the search warrant documentation on McMaster. Once this delay has been reached, property seizure forms and the occupiers notice will be served on McMaster.

   32. It has been confirmed by investigators that McMaster and his family will be away from home on Saturday evening 25th November 2006. It is envisaged that whilst away, police will have the opportunity to covertly execute the search warrant.

3. On 24 November 2006, a magistrate who was an authorised officer issued a warrant. The particulars of the grounds upon which the authorised officer relied to justify the issue of the warrant (stated as required by cl 5 of the LEPR Regulation 2005 and Part 2 of the prescribed form) were:

   Information as described in application

4. On 25 November 2006, the warrant was executed. During the execution of the warrant, police located the methylamphetamine that is the subject matter of the NSW proceedings. No occupier's notice was served. In February 2007, police arrested the accused.

The Requirements for a Valid Warrant

1. At the time that the warrant was issued, LEPRA provided:

   48 An authorised officer to whom an application for a search warrant is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any police officer:
   (a) to enter the premises, and
   (b) to search the premises to things of the kind referred to in section 47 (1)
   ...
   (1) An authorised officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the authorised officer has relied on to justify the issue of the warrant.

   Section 67 of LEPRA provided:

   67 (1) An authorised officer is to prepare and give an occupiers notice to the person to whom the authorised officer issues a warrant.
   (2) An occupiers notice:
   (a) is to be in the form prescribed by the regulations, and
   (b) must specify the following:
   (i) the name of the person who applied for the warrant,
   (ii) the name of the authorised officer who issued the warrant,
   (iii) the date and the time when the warrant was issued,
   (iv) the address or other description of the premises the subject of the warrant, and
   (c) must contain a summary of the nature of the warrant and the powers conferred by the warrant.
   (3) The person executing the warrant must:
   (a) on entry into or onto the premises or as soon as practicable after entry, serve the occupier's notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or
   (b) if no such person is then present in or on the premises, serve the occupier's notice on the occupier of the premises, either personally or in such other manner as the authorised officer who issued the warrant may direct, as soon as practicable after executing the warrant.
   (4) Service of an occupier's notice pursuant to subsection (3) (b) may be postponed by the authorised officer who issued the warrant if that authorised officer is satisfied that there are reasonable grounds for the postponement.
   (5) Service of an occupier's notice pursuant to subsection (3) (b) may be postponed on more than one occasion, but must not be postponed on any one occasion for a period exceeding 6 months.

2. The validity of a warrant depends on the fulfilment of the statutory pre - conditions for its issue: George v Rocket (1990) 170 CLR 104, Ballis v Randall [2007] NSWSC 422, including the requirement that the authorised justice be satisfied that there are reasonable grounds to issue the warrant: Ballis at [84].

3. In Ballis, Hall J. considered a factual and statutory scenario that was similar to that in the present case. The statutory provisions were, for relevant purposes, identical to those under consideration the present case. At [86] - [97], Hall J. held that the fact that the application for a warrant disclosed that the warrant would be executed covertly did not, of itself, invalidate the warrant. The Court may be able to disregard any part of the decision to issue the warrant that went beyond power and treat as valid that part of the decision that was within power. Hall J. decided that, in the case before him, the intention to execute the warrant covertly was not shown to have tainted the valid part of the decision. At [97], His Honour stated:

   The intended surreptitious execution of the warrants as disclosed by the applicants ... was a matter separate and indeed extraneous to the statutory pre-conditions required to be fulfilled.

   Further, at [98] His Honour held that, although the authorising justices had known of the intention to execute the warrants covertly, the power to grant the search warrants had not been exercised for an improper purpose.

4. In Ballis, at [100] - [105] Hall J. affirmed the statements made by McHugh J. in Ousley v The Queen (1997) 192 CLR 69 at [111] - [112] to the effect that, absent statutory authority, the search of a person's premises without their consent involves tortious conduct. In Trans Nominees v Ryan and Raven (1986) 42 SASR 361 at [369], Jacobs J. described the execution of a warrant as "an invasion of the liberty of the subject, which was jealously protected by the common law". Consequently, in Ballis at [114], Hall J. affirmed that any statutory authority for such conduct must be strictly construed. His Honour noted that the requirement to serve an occupier's notice was an important procedural safeguard and was of central importance in determining the lawfulness of the execution of a warrant. His Honour observed that procedural safeguards concerning the service of an occupier's notice reflected a desire to achieve an appropriate balance between the rights of an occupier and the operational needs of facilitating the gathering of evidence for the purpose of securing the conviction of offenders. The regulatory regime under consideration was clearly intended to protect occupiers by requiring that they be given a notice of rights. The covert execution of a warrant negated that important procedural safeguard, rendering execution of the warrant unlawful (at [126] - [127]). Further, the provision enabling the service of an occupiers notice to be postponed (s 67(4) in this case) was not designed to enable postponement solely for the purpose of enhancing the effectiveness of police investigations.

Should the Unlawfully Obtained Evidence be Admitted?

1. As the execution of the search warrant was unlawful, it is necessary to determine whether, having regard to section 90 and/or 138 of the Evidence Act 1995, the evidence should be admitted.

   Section 90 provides:

   90. In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
   (a)the evidence is adduced by the prosecution, and
   (b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

   Section 90 is concerned only with admissions. Section 138 has a broader application. It is convenient to consider first s 138.

   Section 138 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,
   is not to 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 is to 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.

   (emphasis added)

2. In this case, critical evidence concerning possession by the accused of the drugs on 25 November 2006 was obtained in contravention of LEPRA. Other important evidence (such as statements made by the accused in an electronically recorded interview when he was confronted with the search warrant findings) was obtained "in consequence of a contravention of Australian law" in that the evidence "can be directly linked to the impropriety (albeit through a process involving several steps)": Application of Lee [2009] ACTSC 98 per Penfold J. at [31].

3. Prima facie, the evidence is inadmissible. The onus is on the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained: Parker v Comptroller-General of Customs [2009] HCA 7 at [28], DPP v Tamcelik [2012] NSWSC 1008.

4. The Court is required to consider the matters set out in s 138(3) and any other relevant matter. As to the considerations set out in s 138(3)(a) and (b), the unlawfully obtained evidence is of high probative value and critical importance to the conduct of the prosecution. As to the consideration in (c), the relevant offence is moderately serious. However, a deemed supply of a significant (but not large) amount of a prohibited drug where the prosecution relies upon one instance of possession is not one of the most serious offences on the criminal calendar. As to the considerations in s 138(3)(d) and (e), those executing the warrant did not act mala fides. At the time when the warrant was executed, there was a widespread misunderstanding that a warrant could be "covertly executed". Following the decision in Ballis, LEPRA was amended to legitimise the practice of the "covert execution" of warrants. In R v Helmhout [2001] NSWCCA 372, at [21] Hulme J. held that, in s 138(3)(e), "reckless" involved, at least, some advertence to the possibility of a breach of a relevant law and a conscious decision to proceed regardless. In the context of the practice at the time, the contravention that occurred in this case should be characterised neither as "deliberate" nor as "reckless". Nevertheless, the conduct was a serious intrusion upon the rights of the accused: R v Sibraa [2012] NSWCCA 19 per Hulme J at [18]. The considerations referred to in s 138(3)(f), (g) and (h) have no application in this case.

5. Although the considerations referred to in section 138(3) generally favour the prosecution, the question remains whether the prosecution has discharged the onus of showing that 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. In this case, the alleged offence occurred more than six years ago. All the critical evidence in the NSW proceedings is tainted by unlawfulness that involved "a serious intrusion upon the rights of the accused". The evidence supporting the NSW proceedings formed part of the evidence in the Queensland proceedings and, inferentially, was taken into account when the Queensland sentence was formulated. The accused has served his non-parole period in Queensland. In the NSW proceedings, the prosecution seeks to secure a conviction but it does not seek to secure an additional penalty. The prosecution has failed to establish that there is a substantial public interest or other relevant "desirability" militating in favour of admitting the unlawfully obtained evidence.

   **********