R v Peter
[2018] ACTSC 312
•08 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Peter |
Citation: | [2018] ACTSC 312 |
Hearing Date(s): | 17 October 2018 |
DecisionDate: | 08 November 2018 |
Before: | Loukas-Karlsson J |
Decision: | The application to exclude evidence is dismissed. |
Catchwords: | EVIDENCE – ADMISSIBILITY – search warrant – section 138 of Evidence Act 2011 (ACT) – whether section 203 of the Crimes Act 1900 (ACT) was complied with – whether the evidence was obtained improperly – whether discretion should be exercised – significant probative value of evidence – application to exclude evidence dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 194, 203 Crimes Act 1914 (Cth) ss 23F, 23G Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 352 |
Parties: | Jack Bernard Peter (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr S McLaughlin (Applicant) Ms A Jamieson-Williams (Respondent) |
| Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 144 of 2018; SCC 145 of 2018 |
LOUKAS-KARLSSON J
Introduction
This is an application by Jack Bernard Peter (the accused) to exclude evidence obtained from a police search from admission at trial pursuant to s 138 of the Evidence Act 2011 (ACT).
The accused has pleaded not guilty to three counts of manufacturing a firearm contrary to s 228(1) of the Firearms Act 1996 (ACT) (Firearms Act), two counts of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), six counts of possessing a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act, two counts of possessing a firearm contrary to s 43(1)(a)(iii) of the Firearms Act, and one count of possessing a firearm with an identification mark removed contrary to s 252(2) of the Firearms Act.
By way of an application in proceeding and accompanying affidavit of Samuel John McLaughlin (solicitor for the accused), the accused seeks the following orders:
(a)That evidence obtained during the execution of the search warrant at 188 Boddington Crescent, Kambah on 18 January 2018 is inadmissible;
(b)That the record of interview conducted with the accused person on 18 January 2018 by the informant and Senior Constable Coryndon Steven Luxmoore is inadmissible; and
(c)Any other orders that the Court considers appropriate.
Grounds of Application
The orders are sought on the following grounds:
(a)The accused person was denied his rights to observe the execution of the search warrant pursuant to s 203 of the Crimes Act 1900 (ACT); and
(b)That the conduct of the police officers in asking the accused questions about items located during the execution of the search warrant at 188 Boddington Crescent, Kambah on 18 January 2018 when the accused was denied his right to be present and in circumstances where the search warrant was still being executed was unfair and improper.
At the hearing, the accused conceded that if the “evidence from the search warrant is allowed in, there really can be no issue with the conduct of the interview”.
Factual Background
At approximately 9:30am on 18 January 2018, police executed two Crimes Act 1900 (ACT) s 194 search warrants at the accused’s premises. One of the search warrants was for the premises, and the other was for the accused. Police gained entry to the property and established that no one was inside. Contact was then made to the accused, who agreed to attend the premises.
The accused attended the premises at or shortly before 10:14am. The search of the premises had commenced at that time. First Constable Bradley Stapleton (the informant), who was the warrant holder, recorded a conversation with the applicant beginning at 10:14am and concluding at 10:19am, during which he did the following:
(a)Provided the accused with copies of each of the warrants;
(b)Provided the accused with a copy of a document titled “Search of Premises: Rights of Occupier”;
(c)Cautioned the accused in accordance with s 23F of the Crimes Act 1914 (Cth);
(d)Informed the accused of his rights to communicate with (or attempt to communicate with) a friend or relative and a legal practitioner pursuant to s 23G of the Crimes Act 1914 (Cth);
(e)Queried the accused as to whether any of the items “named in the warrant” were on the premises;
(f)Confirmed with the accused that he had contacted the accused to have him attend the premises; and
(g)Told the accused that the accused could not enter the premises for safety reasons.
At 11:26am, the informant signed over the search warrant for the premises to Detective Senior Constable Christopher Watson. Shortly after this, the informant arrested the accused and transported him to the ACT Watch House. At 1:02pm, the informant and Senior Constable Coryndon Luxmoore conducted a record of interview with the accused, which concluded at 2:00pm.
Police concluded the search of the premises at 2:10pm.
Evidence on the Application
10. On 17 October 2018, the informant was called to give evidence on a voir dire in relation to the search.
Relevant Law
11. Section 203 of the Crimes Act 1900 (ACT) provides as follows:
203 Occupier entitled to be present during search
(1)If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to the Commonwealth Crimes Act, part 1C entitled to observe the search being conducted.
(2)The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
12. Section 138 of the Evidence Act 2011 (ACT) provides as follows:
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.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a) did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(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.
Whether the Evidence Was Obtained Improperly
Submissions
13. The first question on this application is whether on the balance of probabilities the evidence was obtained improperly: Heyward v Bishop [2015] ACTCA 58 at [5]. The accused identified two particular complaints in this regard.
14. First, the accused submitted that the evidence was obtained in contravention of s 203 of the Crimes Act 1900 (ACT), on the basis that the accused was prevented by the informant from viewing the search for “safety reasons”. The accused was permitted to view the search from a screen door outside the house.
15. In support of this submission, the accused referred to the fact that a copy of the document headed “Search of Premises: Rights of Occupier” was provided to the accused, but that the accused could “not possibly have read” the document in the “five minutes before being told that he could not enter the premises”. The accused relied on criticism by Refshauge J in Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 352 at [193] in relation to the difficulty a lay person may have in understanding that document.
16. Further, the accused submitted that “no consideration was given to reasonable alternatives” in circumstances where there was an apparent concern for safety. The accused submitted that a number of alternative arrangements could have been instigated rather than preventing the accused from entering the house to view the search, including allowing the accused to observe the search from a cleared corner of the house. The accused submitted that a failure to consider alternatives demonstrates “no regard for the rights of the affected person”.
17. Second, the accused submitted that by arresting the accused and transporting him to the ACT Watch House, the accused was unable to view the search. The accused noted that there was no representative of the applicant present at any time during the execution of the search warrant for the premises.
18. The accused submitted that the absence of an independent sergeant as a safeguard distinguished this matter from that considered by Burns J in R v Trewin [2018] ACTSC 109. The accused also referred to Martin v The Queen; Martin v The Queen [2015] ACTCA 38 as a useful summary of the terms of s 203.
19. The accused submitted that the admissions obtained during the record of interview were obtained improperly “due to the same denial of the Applicant’s right to observe the search”, because the applicant was asked questions about the items found during the search, and because the entirety of the interview took place while the search was ongoing.
20. The prosecution submitted that the entitlement to an occupier under s 203 is a right that the occupier can then avail themselves of, and that s 203 does not place an obligation upon police to ensure an occupier is present during the execution of a search warrant. The prosecution also submitted that the right of an occupier to observe a search cannot be unlimited: see Tasmania v Billinghurst (No 2) [2018] TASSC 4 at [5].
21. The prosecution submitted that the accused was asked by the informant directly whether he had read the ‘Rights of the Occupier’ and whether he understood his rights. The applicant replied “yep” to these questions, indicating that there is no evidence to support an assertion that he could not “possibly have read” the documents prior to being told that he could not enter the premises. The prosecution submitted that the accused also declined to communicate with or arrange for a legal practitioner to be present. The prosecution submitted that there was no evidence that the accused “sought to exercise his right to observe the search inside the house or in its entirety”.
22. The prosecution submitted that safety concerns held by the police “were warranted in the circumstances”, given the large quantity of firearms, firearm parts and ammunition located in the premises by police. The prosecution submitted that it was “reasonable to request that the [accused] remain outside due to the nature of the items that were found inside the house”.
23. In relation to the admissibility of the taped record of interview, the prosecution submitted that for the same reasons as outlined above, the accused was “not denied the right to observe the search”, and that as such his arrest and transportation to the ACT Watch House did not constitute impropriety. The prosecution submitted that the accused made a number of full and frank admissions during the course of the interview with police whilst under caution and “having been provided with his legal rights”. The accused noted that the accused’s failure to observe the search did not prevent him from making those admissions to police.
24. The prosecution submitted that the onus is on the accused to establish that the evidence was obtained improperly or in contravention of an Australian law: Re Application by Lee [2009] ACTSC 98; 212 A Crim R 442. The onus was not in dispute.
Consideration
25. Section 203 provides that an occupier is entitled to be present during a search. I am satisfied that there has been a contravention of this section. I will therefore proceed on the basis that there has been a contravention of an Australian law during the execution of the search warrant. I will now consider s 138 of the Evidence Act 2011 (ACT).
Whether the Evidence Should Be Nonetheless Admitted
26. In R v Johnson [2018] ACTSC 242, Murrell CJ stated the following at [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.
27. I turn to consider the matters under s 138(3).
Section 138(3)(a) - Probative Value
28. The prosecution submitted that the evidence obtained during the course of the search warrant and the admissions made in the record of interview “form the basis of the charges before the Court”. The accused conceded that the evidence is of significant probative value.
29. In my view, it is clear that the evidence obtained and the admissions have a high probative value.
Section 138(3)(b) – Importance of the evidence in the proceeding
30. The accused conceded that “all but three charges relate to possession of items located during the search of the premises”, and that the prosecution would not “have reasonable prospects of securing convictions” without the evidence. The accused submitted that the record of interview was of less importance to the proceedings.
31. The prosecution submitted that the firearms, prohibited weapons and ammunition form the basis of the charges before the Court. The prosecution submitted that its importance “weighs strongly in favour of admitting” the evidence.
32. In my view, it is clear that the evidence is of significant importance in the proceedings.
Section 138(3)(c) – The nature of the relevant offence and the nature of the subject matter of the proceedings
33. The accused submitted that the search warrant was executed in relation to offences with which accused has not been charged, and that the accused has not been charged with any offences relating to the use of the items. It was further noted that the five counts of possessing a prohibited firearm could proceed as a single count pursuant to s 42 of the Firearms Act, as could the two counts of possessing a firearms pursuant to s 43 of the Firearms Act.
34. The accused further submitted that four of the five counts of possessing a prohibited firearm related to airsoft pistols, which though prohibited, were “not likely to cause significant injury”. Further, the accused submitted that the prohibited weapons possession charges related to “a slingshot and an extendable baton”. It was further submitted that at least two, but probably three of the firearms relating to the three counts of “manufacturing a firearm” had “never worked”. It was submitted therefore that the nature of the firearms found would inform a consideration of the seriousness.
35. The prosecution submitted that all of the offences before the court relate to firearms or prohibited weapons, and that the allegations are “not trivial”, there being a “strong public interest in prosecuting offences of this kind”.
36. It is relevant to set out the maximum penalties for the offences the accused has been charged. They are as follows:
(a)For the offence of manufacturing a firearm (s 228(1) of the Firearms Act) the maximum penalty is:
(i)If the firearm is a prohibited firearm—1 500 penalty units, imprisonment for 20 years or both; or
(ii)If the firearm is not a prohibited firearm—1 000 penalty units, imprisonment for 10 years or both.
(b)For the offence of possessing a prohibited weapon (s 5 of the Prohibited Weapons Act 1996 (ACT)), the maximum penalty is 500 penalty units, imprisonment for 5 years or both;
(c)For the offence of possessing a prohibited firearm (s 42(a)(iii) of the Firearms Act), the maximum penalty is imprisonment for 10 years;
(d)For the offence of possessing a firearm (s 43(1)(a)(iii) of the Firearms Act), the maximum penalty is imprisonment for 5 years; and
(e)For the offence of possessing a firearm with the identification mark removed (s 252(2) of the Firearms Act), the maximum penalty is 500 penalty units, imprisonment for 5 years, or both.
37. In my view, the charged offences are serious. There is a public interest in controlling unauthorised possession of firearms.
Section 138(3)(d) – The gravity of the impropriety or contravention
38. The accused submitted that the denial of the accused’s statutory rights were “very significant”, as it has restricted the accused’s ability to dispute possession of the items found, or to dispute the probative value of forensic evidence. It was submitted that the accused’s record of interview illustrates this issue, as the accused could not “possibly know” that “everything…found was mine”, as he had said during the interview, given he did not observe the search.
39. The prosecution submitted that given the accused was able to accurately identify where some of the items were found in the residence during his record of interview, the accused’s submission relating to a compromised defence as a result of the impropriety is not made out. Further, the prosecution submitted that a relevant consideration in considering gravity was whether the person responsible for the impropriety held a belief that the danger of the impropriety was outweighed by the risk to the community that would occur if the improper conduct did not take place: see Gedeon v The Queen [2013]; 237 A Crim R 326. In this circumstance, it was submitted that the informant was concerned about safety as a result of the ongoing location of firearms in the residence, and that as a result, “he did not prevent the accused from going inside the house as a matter of convenience”.
40. I am of the view that the informant was not unreasonably concerned with safety considering the ongoing location of firearms at the time of the search.
Section 138(3)(e) – Whether the impropriety or contravention was deliberate or reckless
41. The accused submitted that the informant’s actions were deliberate, as confirmed in the informant’s evidence given before me on 17 October.
42. The prosecution conceded that the exclusion may be construed as “deliberate”, and further submitted that it does not follow that it was “reckless” given the safety considerations.
43. I accept the prosecution’s submission as the submission accords with my considered view of the relevant facts.
Section 138(3)(f) – Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the ICCPR
44. The accused did not contend that there had been any infraction on the rights of a person recognised by the International Covenant on Civil and Political Rights (ICCPR).
45. There is a right under Article 17 of the ICCPR to be free of arbitrary and unlawful interference with one’s privacy or home. There is an equivalent right under s 12 of the Human Rights Act 2004 (ACT).
Section 138(3)(g) – Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention
46. Neither the accused nor the prosecution was aware of any other proceeding in this regard.
Section 138(3)(h) – The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
47. The accused submitted there would have been “very little (if any) difficulty obtaining the same evidence” without contravening the duty in s 203 of the Crimes Act. It was submitted that police officers could have allowed the accused to observe the search from somewhere deemed safe under supervision from another officer. The accused submitted that the police “gave no thought as to how they could afford the accused his rights and while maintaining their safety”.
48. The prosecution submitted that such a consideration is difficult to address, given it requires speculation and conjecture regarding what difficulty police would have encountered had the accused observed the search.
49. I accept the prosecution’s submission in this regard as it accords with my view of the difficulties inherent in an ongoing search of this nature concerning firearms.
50. The factors identified in s 183 (3) are not exclusive. There do not appear, however, to be other matters which require consideration apart from those which I have addressed above.
Conclusion
51. The present case is one where the desirability of admitting the evidence clearly outweighs the undesirability of admitting it. In particular, this is so given the seriousness of the offences, the high probative value of the evidence and the contravention being motivated by a concern for safety.
52. I therefore decline to exclude the evidence obtained during the search. Therefore, consistent with the accused’s concession regarding ground of application (b), the admissions made during the record of interview should also not be excluded from evidence. Accordingly, I dismiss the application.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 08 November 2018 |
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