R v Pettit
[2015] TASSC 14
•14 April 2015
[2015] TASSC 14
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Pettit [2015] TASSC 14
PARTIES: THE QUEEN
v
PETTIT, Tony John
FILE NO: 365/2009
DELIVERED ON: 14 April 2015
DELIVERED AT: Hobart
HEARING DATE: 11, 12 March 2015
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Warrants – Search warrants – Execution – Obligation of officers executing warrants to comply with legislation under which warrants issued.
Crimes Act1914 (Cth), ss 3, 3C, 3F and 3H.
Evidence Act 2001 (Tas), s 138.
R v Brown [2014] TASSC 18, applied.
R v Kotynia-English [2014] TASSC 63, referred to.
Aust Dig Criminal Law [2969]
REPRESENTATION:
Counsel:
Accused: D J Gunson SC
Crown: I R Arendt
Solicitors:
Accused: Gunson Williams
Crown: Commonwealth Director of Public Prosecutions
Judgment Number: [2015] TASSC 14
Number of paragraphs: 69
Serial No 14/2015
File No 365/2009
THE QUEEN v TONY JOHN PETTIT
REASONS FOR JUDGMENT TENNENT J
14 April 2015
The accused is charged with 20 offences on an indictment filed on18 November 2013. There are 17 counts of dishonestly causing a loss contrary to the Criminal Code 1995 (Cth), s 135.1(15), and three counts of defraud the Commonwealth contrary to the Crimes Act 1914 (Cth) ("the Act"), s 69. The offences relate to allegations that the accused failed to furnish income tax returns over a number of years, and that he failed to remit amounts of GST. The accused has been before this Court on these matters since August 2009. Prior to then, he was the subject of other Commonwealth charges relating to what I might loosely call social security fraud, which have not been proceeded with.
The genesis of all the proceedings was an investigation commenced by Centrelink into the eligibility of the accused for government benefits. That investigation resulted in a number of search warrants being obtained and executed in respect of premises and a number of vehicles connected to the accused. At the time, the accused was living at and operating a business called Just Roofing from premises at 42 Anfield Street, Glenorchy. That was one of the premises searched, and it is the material seized during the course of the search of those premises which underpins the Crown's case against the accused. That material included various business records, bank statements and data stored on a computer.
The Crown proposes to rely on the seized material at the trial of the accused. Counsel for the accused contends by reference to the Evidence Act 2001, s 138, that the material is inadmissible because it was illegally or improperly obtained as a consequence of contraventions of the Act and otherwise. The parties have sought a ruling prior to the commencement of the trial as to whether the Crown may rely on the material.
Contraventions asserted by the accused
Contravention 1
The first asserted contravention I will deal with relates to a purported endorsement of the warrant relating to Anfield Street and, indeed, one other warrant, in circumstances where the officer who made the endorsement had no authority to do so. This requires a consideration of the definition of the terms "constable" and "executing officer" in the Act, ss 3 and 3C, respectively. Those definitions provide:
"constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory
executing officer, in relation to a warrant, means:
(a) the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or
(b) if that constable does not intend to be present at the execution of the warrant--another constable whose name has been written in the warrant by the constable so named; or
(c) another constable whose name has been written in the warrant by the constable last named in the warrant."
Warrants are issued to a person who is named on the face of the warrant. That person is the executing officer responsible for the execution of the particular warrant. Where that executing officer does not intend to be present at a search, the executing officer for the warrant can be another constable, provided the constable originally named as the executing officer writes the name of the substitute on the warrant. The process is usually described as signing over the warrant and also usually involves the signing over officer recording the time and date of signing over beside the name of the substitute. It is not uncommon for a warrant, by the time execution of a warrant is completed, to have a number of hand-written endorsements with the names of officers who have at various times during the life of a warrant, become substitute executing officers.
In the present case, the executing officer named in the warrant was not present at the search. After the warrant was issued to that officer, but shortly prior to the search being conducted, and in the absence of the executing officer named on the warrant, an officer other than the executing officer named on the warrant for the premises at 42 Anfield Street crossed out the name of the executing officer named in the warrant and purported to sign the warrant over to a third officer. He had no authority to do so.
Contravention 2
Another asserted contravention of the Act to which counsel for the accused refers arose by reference to the Act, s 3H. That relevantly provides:
"3H Details of warrant to be given to occupier etc
(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 executing officer or a constable assisting must make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(3) …
(4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court."
Counsel for the accused submitted that neither the executing officer nor any constable assisting, or indeed anyone, made available to the accused a copy of the warrant as required by s 3H(1).
The section was considered by Blow CJ in R v Brown [2014] TASSC 18. His Honour there determined that the words "must make available" required that a copy of the warrant be given to an occupier. In that case, his Honour determined that, because that had not been done, the execution of the warrant was unlawful. As a consequence, his Honour excluded the evidence obtained during the search purportedly conducted pursuant to the warrant.
Contravention 3
Another issue raised cannot be said to be a contravention of the Act because nothing in the Act requires it be done. However, it may still amount to an improper act or impropriety by reference to s 138. This issue relates to a document entitled "Search of premises: Rights of the Occupier". It is a six-page document which sets out, by reference to specific provisions in the Act, the rights of an occupier of premises searched pursuant to a warrant issued under the Act. The warrant issued in relation to 42 Anfield Street, and indeed all the others issued in this matter, contained a statement in the following terms:
"A statement of the rights of the occupier of premises is attached to this warrant."
Counsel for the accused submitted that that statement was not attached to the warrant for 42 Anfield Street as it should have been, and a copy was not provided to the accused.
Contravention 4
Another issue raised by counsel for the accused was an assertion that the officers who purported to be in charge of the search did not conduct it. Apart from AFP officers, present at the search were a number of representatives from Centrelink and the Australian Taxation Office. It is their role on the day which is in question.
Voir dire and material to which regard is to be had
As to the issues raised by counsel for the accused, counsel for the Crown submitted that, as a starting point, a determination in relation to the second, third and fourth issues would depend on the facts as I might find them to be. If I find the contraventions occurred, it will be a matter of considering them in the context of s 138.
However, counsel for the Crown had a specific submission in relation to the first asserted contravention. In effect it was that, even if I accepted that the officer who signed the warrant over had no power to do so, it did not matter because a constable assisting was present at the search and had an independent power to search and seize by reference to the Act, s 3F.
The Crown called four witnesses. These were now retired Centrelink investigator Roger Nield ("Nield"), Australian Federal Police ("AFP") officer Bill Polychronopoulos ("Poly"), AFP officer Lindsay Hall ("Hall") and Australian Taxation Office ("ATO") investigator Meisha Austin ("Austin"). Counsel for the accused called his client to give evidence. Otherwise, the only material in written form, apart from exhibits tendered, to which I was to have regard, was pars 41 to 47 inclusive of a statement of facts commencing at 12 of Vol 1 of the Crown papers filed 18 November 2013.
Factual background and findings
In or about 2003, the accused was operating a business known as Just Roofing. An investigation was commenced by Centrelink into his eligibility for government benefits. A decision was taken by Centrelink to apply for search warrants under the provisions of the Act to enable Centrelink investigators to search for evidential material. There was at the time an inter-departmental process in place which enabled agencies such as Centrelink to enlist the help of the AFP to obtain and execute such warrants.
Nield was the Centrelink officer who was given responsibility for preparing the proposed warrants and the necessary affidavits in support of the applications for them. At this time, he had not undertaken this process before. He sought advice from other Centrelink officers who had undertaken the process before, he used pro-forma warrants done by other officers, and he obtained advice from the local AFP office. He duly prepared the draft warrants, the applications for them and the affidavits in support, and then attended upon a magistrate for the purpose of having the warrants issued.
At the time this process was undertaken, the senior officer in the Hobart office of the AFP was Poly. Prior to Nield attending upon the magistrate, Nield had had discussions with Poly about the proposed searches. Poly provided to Nield the names of two AFP officers which Nield could give to the magistrate to be inserted in the proposed warrants as executing officers. Those two names were his own and that of Darren Pallot ("Pallot"). There is no dispute that at the relevant time Poly and Pallot were constables within the meaning of the Act.
Nield went to see the magistrate with his team leader from Centrelink. No AFP officers attended with him. Over the space of about two hours nine warrants were issued. During that process, Nield provided to the magistrate the names of the AFP officers he had been given. The magistrate inserted those names into the various warrants.
The focus of the proposed searches was the accused's home at 42 Anfield Street, Glenorchy, from where he ran his business. One warrant was sought in relation to those premises. Six further warrants were sought in relation to various vehicles. Another warrant was sought in relation to a second property at 3 Daylesford Street, Glenorchy, and a final warrant related to the office of the accused's accountant. Of the nine warrants issued, Pallot was named as the executing officer for the warrants for 42 Anfield Street and 3 Daylesford Street, and Poly was named as the executing officer in all other warrants.
While there was no direct evidence about this, it is, in my view, an inevitable conclusion to be drawn that Poly told Nield which officer was to be the executing officer for which warrant. There is no other reason why Nield would have asked the magistrate to issue two warrants relating to the accused's home and other premises in Pallot's name and all other warrants in the name of Poly.
All the warrants record the date on which, and the time at which, they were issued. All were issued on 18 November 2003 between 10am and 12.27pm. The evidence of Nield, and the times at which the warrants are recorded as having been issued, suggests that Nield visited the magistrate twice with two batches of warrants. The warrants for 42 Anfield Street, 3 Daylesford Street and the accountant's premises were all issued at 10am, and the rest were issued between 12.15pm and 12.27pm. The original warrants were tendered. There is no dispute that the warrants as tendered were not in the same form they were in when issued. Various handwritten endorsements and additions had been made since their issue. Each warrant had also obviously been pulled apart and re-stapled, presumably for the purpose of photocopying at some time.
All of the warrants tendered provided that a statement of the rights of the occupier of any premises to be searched was attached to it. None of the original warrants tendered on this hearing had the relevant statement attached to it. Poly was questioned at some length about this issue. He referred to it being standard practice to attach these statements to warrants. He then said he did remember seeing occupier's rights at the time. When pressed he resiled from that saying, "I'm saying that normal procedure is that all the warrants have the occupiers rights with them", and he assumed they would have been with these warrants on the day. Hall gave no evidence positively stating he saw a statement of rights but said it was normal practice for one to be with a warrant.
Nield did not seem to have understood the need for it, suggesting it was the responsibility of the AFP. Counsel for the Crown submitted there was no evidence such statements were not there when the warrants were issued and executed. With respect, no witness was able to state positively the statements were attached to the warrants. Further, if it is seriously contended the statements were originally attached to each warrant, then it must follow that someone has, at some stage since the issue of the warrants, systematically pulled each warrant apart and removed the relevant statements. While I accept that the paperwork has been unstapled at some stage, there would be absolutely no logical reason why, whoever might have done that, also saw fit to remove all the statements. To imply that might have occurred, absent any evidence at all, is a fanciful approach. I accept that the statements were never attached to the warrants as they should have been. Given Nield's obvious lack of experience with the process, I accept that from his perspective he simply did not then appreciate the need for the statements to be there.
On the afternoon of 18 November after all the warrants had been issued, Nield returned to his office and there was a meeting at Centrelink offices with AFP officers. He says that at that time, namely about 2pm, he handed all the warrants he had obtained to, he believed, Poly. When those warrants were handed over they had no additional handwritten additions beyond that inserted at the time they were issued. An arrangement was made that parties to be involved in the searches would meet at the car park of the Derwent Entertainment Centre early the next morning for a final briefing before the searches were conducted.
Poly told the Court that he crossed the name of Pallot out on the two warrants which contained Pallot's name and wrote the endorsements which now appear on the face of eight of the nine warrants on the morning of 19 November, "near the premises before entering the premises in the morning". He was asked in examination in chief if he recalled why he did that and he said:
"Darren Pallot was sick on the day and he was going to be the executing officer ... and and as result Lindsay Hall became the executing officer on the day."
Poly also told the Court that, in relation to the warrant relating to the Daylesford Street property, which clearly showed Pallot's name as the executing officer, he not only crossed Pallot's name out initially and purported to sign the warrant over to Hall at 7.05am on 19 November, but also purported to sign it from Hall to himself at 8.10am. If regard is had to the definition of executing officer in the Act, it is quite clear he had no authority to complete either endorsement.
Pallot did not attend the meeting on the afternoon of 18 November at Centrelink, and he did not attend the briefing in the car park the next morning. Poly told the Court that Pallot rang in sick, he thought, on the night of 18 November. As a consequence he contacted the AFP's Melbourne office and arranged for an officer from there to come to Tasmania to assist with the searches. That was AFP officer Tattersall.
The leave records of Pallot were put before the Court. In fact he was on various types of leave from 13 to 19 November inclusive. Mr Tattersall was present at the briefing in the Derwent Entertainment Centre car park shortly after 7am on 19 November. Given the availability of flights into Tasmania, that officer must have arrived in Tasmania the evening before. There was no evidence to suggest otherwise. Allowing for time for a phone call to be made to the Melbourne office and arrangements to be put in place for Mr Tattersall to travel to Tasmania, it must follow that Poly knew, at least on the afternoon of 18 November, that Pallot was not going to be available to be involved in the searches the next day. Poly in fact told the Court he knew when he made arrangements for Tattersall to come to Tasmania to assist with the searches, that Pallot's name appeared on at least two warrants.
AFP officers Poly, Hall and Tattersall travelled to the car park at the Derwent Entertainment Centre on the morning of 19 November. They met with a number of representatives from Centrelink and the ATO. According to the Crown witnesses, after leaving that car park, the group stopped nearby 42 Anfield Street. The arrangement was that the AFP officers would attend that address and gain entry pursuant to the warrant. When the premises were considered secure, they were to ring Nield and everyone else would then attend at 42 Anfield Street. If what Poly said is accurate in that regard, it seems that it was at that stop nearby 42 Anfield Street that he crossed out the name of Pallot on the warrant relating to those premises and endorsed the warrant with Hall's name.
Eight of the nine warrants issued on 18 November have an endorsement timed at 7.05am on 19 November. Poly accepts all those endorsements are in his handwriting and that all purport to sign the warrants over to Hall. The warrants with that endorsement all have the name of the executing officer when the warrant was issued crossed out and Hall's name written beside it. Poly accepts that, not only did he write the endorsements, but also that he crossed out the name of the initial executing officer before doing so. Two of the warrants Poly endorsed in that fashion were originally in the name of Pallot, and the other six were originally in Poly's name. The signing over by Poly to Hall of the warrants originally in Poly's name was quite proper. It is the signing over of the warrants originally in Pallot's name which has given rise to one of the arguments in this case.
Poly was extensively questioned about the sequence of events which gave rise to what he did in endorsing the warrants and why he did it. There is no doubt that at the relevant time he was an experienced AFP officer with extensive training in the legal requirements relating to obtaining and executing warrants under the Act. He knew the signing over process required that signing over to be done by the named executing officer. He knew that a copy of a warrant should be given to the occupier of premises to be searched, and he knew a warrant should have a statement of rights attached to it. His explanation for what he did in endorsing the warrants was that he had a batch of warrants, he thought they were all in his name and he just signed them all. His signing of the warrants in Pallot's name was simply a mistake and he did not realise until some years later when the whole problem was brought to his attention that he had indeed made that mistake.
Counsel for the Crown asked the Court to consider certain matters when considering Poly's conduct. The first was that in his work diary, where notes were made at the time of the events, Poly had recorded that he signed warrants over to Hall. That, it was submitted, demonstrated that he was not trying to hide what he did, which in turn supported his evidence that he simply made a mistake. The second was Poly's statement made in 2005, and the third was his admission that he did not realise anything was wrong until October 2014 and his report to a senior officer at that time of his error. It was submitted that these were not the actions of someone who knew they had done something wrong and had sought to hide that fact. As to the diary notes and statements, none detail precisely what Poly did in relation to the Anfield Street warrant. The details provided are general and just indicate all warrants were signed over to Hall. Given six of the nine were lawfully signed over, neither the diary entry nor later statements are of much assistance.
Poly was generally an unimpressive witness. He prevaricated when pressed about issues and moved ground in his answers at times when he clearly realised he was attempting to defend the indefensible. The facts of the matter are that Poly endorsed eight warrants supposedly at the same time. To physically deal with each warrant as he did, he would have had to have the front page of each warrant in front of him. He had to physically put a line through the name of the executing officer shown on the warrant and write in details of another. He would have the Court accept that when he undertook that process he did not see the name Darren Pallot on two occasions, but thought instead it was his name. Given the two names, that is, with respect, an incredible proposition, and one the Court does not accept.
The names to go on the warrants were supplied by Poly to Nield. By supplying a name in addition to his own, Poly must have known that other name was intended to appear on one or more of the warrants being applied for. At least by about 2pm on 18 November he had all the warrants in his possession. He also must have known, given the small number of officers who worked in the Hobart office of the AFP, and that he was the manager of that office, that Pallot had been on leave for the past five days, and may not be available the next day. He obviously anticipated that because he made arrangements to get another officer from Melbourne. Given his knowledge of procedures relating to warrants, he must have known as at the afternoon of 18 November that he had warrants in Pallot's name, and that he could not search pursuant to those warrants unless he had Pallot sign them over. He could have arranged that, but did not. Instead, at the last minute, he purported to sign the warrants over to Hall.
I do not accept Poly simply made a mistake. I am satisfied he did what he did intentionally. It was no doubt expedient for him to do so because it obviated the need to get Pallot to endorse those warrants, or alternatively admit an error and call off or delay the search.
The evidence of the Crown witnesses was to the effect that AFP officers attended the premises at 42 Anfield Street alone without the Centrelink and ATO representatives, and that those others came shortly after when contacted. The accused disputed that, saying that a large group came together. With respect, I do not accept the evidence of the accused in that regard. He was generally vague and had memory difficulties, a problem I accept to an extent with all witnesses. However the Crown witnesses were not challenged about their evidence in that regard and the process is far more logical than that which the accused would have the Court accept. Further, information is recorded in Hall's work diary which supports the version given by the AFP officers.
When the AFP officers arrived at 42 Anfield Street, Hall's name appeared on the face of the warrant purportedly as the executing officer. He could not fulfil that position because the warrant had not been lawfully signed over to him by Pallot. To all intents and purposes, when the AFP officers arrived at 42 Anfield Street, Pallot remained the executing officer even though he was not there. Both Hall and Poly gave evidence about what happened. Each said it was their practice to give a copy of the warrant to an occupier. Neither could positively assert in this case that that occurred. Poly said he heard Hall read out the contents of the warrant to the accused in full. Hall said he would never have done that, but would have outlined in general terms that they had a search warrant and were there to search the premises. The accused said he was not told in any detail what the officers were there for, just that they had a warrant to search. He said he was not given a copy of the warrant.
Section 3H(1) provides that an executing officer or constable assisting must make available to an occupier of premises to be searched a copy of the warrant relating to the premises to be searched. In this case, the executing officer was not present and could not have made available a copy of the warrant. Whether any other AFP officer then present could be categorised as a "constable assisting" is another argument with which I will deal shortly. Leaving aside the question of who is required to make available a copy of a warrant to the occupier, the question remains, was the accused given a copy of the warrant?
I discount the evidence of Poly about the issue because I did not find him generally to be a witness of the truth. As to Hall, with respect, he appeared to struggle to give evidence which would not implicate anyone else in wrongdoing but to still basically tell the truth. I found some of his explanations to be somewhat implausible, given his level of experience as an AFP officer at the time. I accept he has no independent memory of having handed a copy of the warrant to the accused. I have no alternative but to accept the evidence of the accused that he was not given a copy of the warrant.
After representatives from Centrelink and the ATO were called to attend at 42 Anfiled Street, they did so, and a search of the premises was conducted. I do not propose to canvass the evidence relating to the role played by each person at the premises, because, for the reasons which follow, it is unnecessary to make findings about that.
Contravention 1
The Act, s 3E(5)(d), provides that an issuing officer in respect of a warrant is to state in the warrant 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. The phrase "responsible for executing the warrant" is not defined in the Act. The same phrase appears in the definition of "executing officer". An executing officer is defined as the "constable named in the warrant by the issuing officer as being responsible for executing the warrant". That definition goes on to provide alternative meanings for the term "executing officer". In particular, it provides that where the constable initially named does not intend to be present, the executing officer is "another constable whose name has been written in the warrant by the constable so named".
In the present case, the executing officer in respect of the warrant in relation to 42 Anfield Street was Pallot. He was not present at the search, and he did not sign the warrant issued to him over to any other constable. He therefore remained the executing officer. What Poly did in purporting to substitute Hall for Pallot as the executing officer was not authorised by the Act and could have no lawful effect. There was, in the circumstances, no executing officer present at the search.
It is accepted that there is no provision in the Act which requires in plain terms that an executing officer in respect of a warrant should be present at any search conducted pursuant to that warrant. However, the fact that there are alternative meanings for the term "executing officer" which deal with a situation where the executing officer named in the warrant is not going to be present at the search, when combined with the ordinary meaning of the words "responsible for executing the search", can lead to only one conclusion, namely that the intention behind the Act is that the executing officer, whether he or she be that originally named in a warrant or one substituted for that officer, must be present at a search and responsible for the execution of the warrant. If any other interpretation were to be contended for, one would have to ask rhetorically, why have an executing officer for the purpose of a warrant in the first place unless that person has a specific role, that is, to be present at and responsible for the execution of the warrant. The phrase, being responsible for the execution of the warrant, clearly connotes taking an active role in overseeing the execution.
What then is the consequence of Poly's unauthorised act and the absence of an executing officer from the search? Counsel for the accused submitted that the acts of Poly which resulted in the AFP entering the accused's premises pursuant to a warrant when no executing officer was present, rendered the search unlawful and anything seized by way of evidential material inadmissible on any trial. Counsel for the Crown submitted that those consequences did not necessarily flow from Poly's acts because of the wording of the Act, s 3F, the warrant and the definition of the term "constable assisting". Counsel was unable to provide any authority for his submissions.
Counsel for the Crown contended that the powers of an executing officer and constable assisting were not related, and that each could, to a degree, operate independently of the other. He contended that it was not necessary for an executing officer to attend a search, and that a constable assisting who was present had all necessary powers of search and seizure. In the present case, counsel for the Crown accepted that, in respect of the warrant relating to 42 Anfield Street, notwithstanding what Poly purported to do, Pallot at all times remained the executing officer under that warrant. However he submitted that, even though Pallot was not present at the search, any person who came within the definition of a constable assisting under the Act who was present at the search could carry out all powers of search and seizure provided for in the Act, s 3F, having regard to the opening words of s 3F(1).
The Act, s 3F(1), relevantly provides:
"(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
(a) to enter the warrant premises…; and
(b) …
(c)to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d)to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence that is an indictable offence; or …".
With respect, this construction of the Act stretches the boundaries of statutory interpretation beyond their accepted limits. A constable assisting is defined to be a constable assisting in the execution of the warrant. The role of a constable assisting is confined by that definition. That is, a constable assisting is someone assisting another. The definition does not include any constable who happens to be present at the premises to be searched and is not assisting an executing officer. In the present case, Pallot was not present at the search. He did not attend briefings relating to the search, either on the day of or the day before the search. Poly knew prior to the search Pallot would not be present. There was no evidence at all to suggest that Pallot had any input at all into any arrangements for the conduct of the search, or undertook any role in it at all, save for the presence of his name on the warrant. To suggest that in some way either Hall, Poly or Tattersall assisted Pallot in the execution of the warrant is, with respect, a nonsense.
The submission in this regard by counsel for the Crown has no merit whatsoever. The search conducted at 42 Anfield Street was conducted in circumstances where there was no executing officer, or constable assisting that officer, present. The search of the premises and the seizure of material was therefore unlawful.
Contravention 2
I have already determined that no copy of the warrant was given to the accused in compliance with s 3H.
Contravention 3
I have already determined that no statement of rights was attached to any warrant. I accept in the circumstances that none was given to the accused.
Contravention 4
As to this last matter, the officers from Centrelink and the ATO who attended the premises at 42 Anfield Street were not constables within the meaning of the Act. The extended definition of a "constable assisting" includes "a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant". As far as this particular warrant was concerned, Pallot was the executing officer, and there is no evidence he authorised anybody to do anything in relation to this search. As a consequence, on the face of it, the presence of Centrelink and ATO representatives was not lawfully authorised.
Was there any other basis upon which those representatives were lawfully entitled to take part in the search? Counsel for the Crown submitted that it was quite proper for officers from the ATO and, by implication, Centrelink to attend and assist AFP officers with a search. For this proposition he relied on Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372. That was a case in which there was a challenge on a number of bases to warrants issued under what was then the Act, s 10. One of the bases for challenging the warrants was that the presence and participation in a search by a number of ATO officers not named in the warrant vitiated the execution of the warrant. At 385, Lockhart J said in relation to this challenge:
"Purvis was the officer in charge of the search of the Dunesky house. It is not known from Purvis himself what role he played in that search because, as mentioned earlier, he died in 1992. But we do know from the evidence, including the affidavits of King and Vintner, that Purvis had the opportunity to make the decisions to seize all of the relevant documents and that he did in fact examine certain documents. It seems to me to be a fair inference to draw from the evidence that Purvis and at least one or more of the other AFP officers concerned did examine the documents before deciding whether they should or should not be seized. In my opinion the police officers named in the warrant did not abdicate their responsibility to consider the relevant documents and decide whether or not they fell within the scope of the warrant. Abdication is said to be in favour of the ATO officers who also attended the search. It is plain that certain of the ATO officers not only examined, but selected documents, whereupon they were given to Purvis or other AFP officers and noted in the PSR. But the presence of persons other than those authorized to execute the warrant is not fatal to the validity of the execution. I do not accept the argument of counsel for the applicants that on its proper construction s. 10 does not authorize persons, other than the police officers named in the warrant, to give assistance beyond assistance in the nature of 'locksmith's assistance'. The authority conferred by s. 10 upon constables named in the warrant to enter premises and seize things found there is to pursue these activities 'with such assistance ... as is necessary and reasonable'. The obtaining of the assistance with entry, search (by implication), and seizure is not limited merely to assistance with entry of the premises. This follows both from the literal construction of s. 10 and its obvious intent. The assistance includes assistance in relation to seizure of things, which in turn must carry with it, by implication, inspection of the articles, including documents, to see if they come within the terms of the warrant.
The facts and circumstances that surround this matter are complex and have involved years of investigation by the Australian Taxation Office into the activities of the applicants. In my view it is not only permissible under s. 10 of the Crimes Act for ATO officers to accompany the police officers on the search; but it is probably in the interests of both the prosecuting authorities and the applicants that they do so. Who better to assist in the identification of relevant documents (i.e. relevant according to the terms of the warrant) than the ATO officers who are intimately conversant with the subject matter of their audits? It is true that the ATO officers cannot take over the role of the police officers in the conduct of the search and seizure of documents; but plainly they were retained for the purpose of distinguishing between relevant and irrelevant material, that is material which would or would not answer the description of the documents in the warrants themselves.
On the facts as I have found them there was no impermissible delegation of authority to the ATO officers. All ATO officers and police officers present were under the control of Purvis. It was a large house that was to be searched and there were large numbers of documents to be perused. In Freeman v Bateson, unreported, 15 November 1984 (No 8536 of 1994), Beach J. held that it was permissible for an officer of the Health Insurance Commission to be present at the conduct of the search there with a view to identifying documents relevant to the alleged fraud (at 8 and 9). But see Applebee (1995) 79 ACrimR 554 per Higgins J. at 559 to the contrary.
There is no complete consistency in the evidence of the witnesses for the respondents concerning the events surrounding the search. But this is hardly surprising after the time that has elapsed between the conduct of the search and the commencement of this proceeding. Devine says that he and Savvas searched the study in the main house. Savvas does not refer to the study as a room which he searched. Neither was cross-examined. Whatever the position be, the fact is that the documents were not seized as such by the ATO officers, they were simply taken from various points of the property to the police officer who acted as the record keeper (Vintner). Fitton believed that any decision with respect to seizure in respect of the documents which he found 'would be taken by one of the AFP officers attending the premises that day'. In this vein, King gave evidence that from time to time he received information from the ATO officers concerning the nature and significance of certain documents about which he himself was undecided, but that he did not isolate any document without being satisfied, himself, that it fell within the conditions stated in the warrant.
Fitton, Devine and Smith removed documents from places where they found them and took them to Vintner. But this was not seizure; this was mere collection of documents from within the Dunesky premises for ultimate collation and recording.
None of the ATO officers claims to have had a copy of the warrant whilst conducting the search; but Savvas said in his affidavit that at the briefing outside the fire station King asked one of the AFP officers to obtain copies of the search warrants and he, Savvas, recalls that a packet was given to Purvis. He recalls Purvis saying that three conditions had to be observed when obtaining documents. He is not sure if Purvis read those conditions out or if he just left it to all the officers, including the ATO officers, to read them on the way to the premises.
I am not satisfied that in the circumstances of this large-scale and difficult search relating to complex issues, the search was improperly undertaken. I am satisfied that appropriate attention was given by the AFP officers, in particular, Purvis and King, to the documents that were presented to them or which they otherwise found or examined on the premises, acting with the advice of the ATO officers or certain among them."
I have included that somewhat extended quote because it highlights the fact that the decision in that case was against the background of the presence of an executing officer and constables assisting at the relevant search. What the court was there considering was the role of ATO officers who had also attended the search and whether they had in some way usurped the primary role of the executing officer and constables assisting. It was determined they had not. The case is not authority for the proposition that ATO representatives, and, by implication, Centrelink representatives, may attend and have any role at a search absent the authorisation of an executing officer.
Therefore in the present case, it is not necessary to consider in detail what role Centrelink and ATO representatives had at the search of Anfield Street, because there was no lawful authorisation for them to be there in the first place, absent an executing officer.
The exercise of the Court's discretion by reference to the Evidence Act, s 138
Section 138 provides:
"138 Discretion to exclude evidence improperly or illegally obtained
(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.
(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 he or she 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 he or she 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 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."
Given the findings that I have made, it must be accepted that the evidential material seized during the course of the search of the premises at 42 Anfield Street, Glenorchy was obtained improperly, or in breach of an Australian law, or in consequence of an impropriety. As a consequence, that material is not to be admitted on any trial 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. It is for the Crown to satisfy me that the desirability of admitting the evidence outweighs the undesirability of doing so.
Dealing with the factors referred to in s 138(3), as to (a), there is no dispute that the evidence has significant probative value. As to s 138(3)(b), there is no dispute that the evidence is of considerable importance in the proceedings. Absent the material, the Crown's case would be substantially weakened given the elements of the crimes charged to be proved.
As to s 138(3)(c), the offences with which the accused is charged are serious offences in that they attract upon conviction significant penalties. The commission of such offences also has the potential to impact upon the public purse and to undermine the taxation regime in this country.
As to s 138(3)(d) and (e), counsel for the Crown accepted that, were I to find that the AFP had failed to hand over a copy of the warrant, and had failed to supply a statement of rights, those failures would amount to a serious contravention and impropriety. I have already made findings to the effect that no copy of either document was supplied to the accused. Counsel for the Crown submitted that, were I to find that the AFP officers had failed to hand over a copy of the warrant, it was a contravention which occurred many years before the decision in Brown's case where Blow CJ definitively held that the failure to hand over a copy of the warrant to an occupier was unlawful and vitiated the search. He submitted that the contravention in the present case would be a far more serious contravention had it occurred after his Honour's decision. With respect, I fail to see the usefulness of that submission given that both Poly and Hall told the Court it was their usual practice to provide a copy of the warrant and statement of rights to an occupier back in 2003.
Wood J referred to the concept in R v Kotynia-English [2014] TASSC 63. However in that case, while her Honour was dealing with issues relating to the execution of a warrant under the Act, the executing officer was a member of Tasmania Police and inexperienced in the execution of warrants under the Act. The situation in the present case is entirely different.
The question in relation to the contravention and impropriety arising from the failure to provide the relevant documents to the accused, is how those actions should be characterised. The evidence does not support a finding that the actions of AFP officers in this regard were deliberate actions, calculated to adversely affect the accused's rights. Was the conduct reckless? The concept of recklessness involves some advertence to the issue and a decision to proceed regardless, or, as Hulme J said in Helmhout (2001) 125 A Crim R 257 at [33], "or alternatively a 'don't care' attitude generally".
I have no evidence from which I could conclude that either Poly or Hall actually adverted to the need to provide these documents and proceeded regardless. In the circumstances, despite their experience, I will proceed on the basis their actions were careless. There is no basis however for that carelessness to be excused because of the potential consequence for the accused, namely an inability to consider whether what was being seized was being properly seized by reference to the warrant.
The contravention arising from the unauthorised endorsements of the warrant which resulted in there being no executing officer at the search is in a different category. I am satisfied that Poly's actions were deliberate and were not just a simple mistake. He was an experienced officer and his explanations for how this came to occur were implausible. The consequence of his actions was an unlawful search. However, I am not satisfied Poly's actions were deliberate in the sense of deliberate actions calculated to adversely affect the accused's rights. They were, in my view, reckless in that he knew he could not endorse the warrants and yet did so to allow the search to proceed. For an officer with his experience, his actions were completely unacceptable.
As to the factor identified in s 138(3)(f), counsel for the Crown made no submission in relation to the relevance in this matter of the International Covenant on Civil and Political Rights. In Brown's case, Blow CJ dealt with the impact of this at [19] and [20] where he said:
"19 Leading counsel for the Crown, Mr Arendt, submitted that there was nothing of relevance to this matter in the International Covenant on Civil and Political Rights. That submission revealed an unfortunate level of ignorance about human rights. Article 17 of Part III of that instrument reads as follows:
'1 No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2 Everyone has the right to the protection of the law against interference or attacks.'
20 Because s3H(1) was not complied with, the two accused suffered unlawful interference with their privacy, home and correspondence within the meaning of Article 17."
I infer counsel made no submissions as to the relevance of this article, accepting the same impact as that identified in Brown.
As to s 138(3)(g), the existence of the problems in this matter has been known to Poly's senior officers at least since October 2014. No action of a disciplinary nature has been taken and I infer it is unlikely any will be, given the age of his actions.
As to s 138(3)(h), it is quite clear that, had Poly visited Pallot at his home which he indicated he could have done, Pallot could have signed over the two warrants in his name to Poly. Poly could have then quite properly signed those warrants over to Hall. The search of Anfield Street would then have been properly conducted. The material seized would have been lawfully seized, subject, of course, to the other issues about which submissions were made. At the worst it might have meant a delay of a few hours with the search. Even that however could have been avoided had it been done on the night of 18 November, by which time Poly must have known that Pallot was not going to be present at the search. In essence the material seized unlawfully could have been seized lawfully with little effort on the part of Poly.
Outcome
Blow CJ said in Brown at [23]:
"23 Courts have consistently taken the view that a strict approach should be taken to compliance with statutory provisions relating to the issue and execution of search warrants. See, for example, George v Rocket (1990) 170 CLR 104; Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384. In all the circumstances, I concluded that the undesirability of admitting evidence that had been obtained during a search at which s3H(1) was not complied with was not outweighed by the desirability of admitting the evidence obtained during the search in question."
Given the findings I have made about the extent and nature of the contraventions and impropriety in this matter, I am not satisfied that the desirability of admitting the evidence seized in the search of Anfield Street is outweighed by the undesirability of admitting that evidence.
The evidence contained in the seized material is inadmissible on the trial of the accused.
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