R v Poulakis (No 1)
[2015] ACTSC 189
•13 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Poulakis (No 1) |
Citation: | [2015] ACTSC 189 |
Hearing Date: | 9 and 13 July 2015 |
DecisionDate: | 13 July 2015 |
Before: | Murrell CJ |
Decision: | The evidence is admitted. |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – Evidence - recovered email identified through illegal seizure – invalid search warrant – judicial discretion to admit or exclude evidence – whether probative value outweighs danger of unfair prejudice – whether desirability of admitting the evidence outweighs undesirability of admitting evidence obtained in that way |
Legislation Cited: | Evidence Act 2011 (ACT) ss 137, 138, 138(3) Crimes Act 1914 (Cth) ss 3E(5), 3F(1), 3K, 3L Criminal Code Act 1995 (Cth) ss 11.2(1), 307.2(1) |
Cases Cited: | Different Solutions Pty Ltd v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686 R v Manyathala; R v Ojielumhen [2013] ACTSC 115 R v Sibraa [2012] NSWCCA 19 |
Parties: | The Queen (Crown) Peter Edward Poulakis (Accused) |
Representation: | Counsel Ms P McEniery (Crown) Mr J Nicholson SC with Mr D Berents (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 273 of 2014 |
MURRELL CJ:
Background
Pursuant to s 137 and/or s 138 of the Evidence Act 2011 (ACT), the accused seeks to exclude evidence of a recovered email. The email was obtained by searching a red Toshiba laptop that was seized during the execution of a search warrant at the accused's premises on 8 August 2014.
The accused is being tried on six charges under ss 11.2(1) and 307.2(1) of the Criminal Code Act1995 (Cth). It is alleged that, on six occasions between about 22 June and about 8 August 2014 at Canberra, he aided and abetted the importation by an unknown person of a border controlled drug, either cocaine or MDEC. The dates of the alleged offences are about 22 June 2014, 26 June 2014, 4 August 2014 and 8 August 2014. The prosecution alleges that the accused collected or arranged to collect the relevant drug when it reached Canberra.
The evidence on the voir dire was that federal agents were briefed about a search of the accused's premises. Federal Agent Leahy attended before a magistrate and obtained the warrant for the search. The search warrant that he obtained failed to name the executing constable (who was to be Federal Agent Leahy). Relevantly, the warrant was expressed to be limited to the seizure of evidential materials that met the following conditions:
(a)Computers and computer hardware and software, computer hard drives, removable storage devices, and compact discs.
(b)Which relate to Jason Causer.
(c)In relation to which there are “reasonable grounds for suspecting that they will afford evidence as to the commission of [the alleged offences]”.
Before the search was conducted, Federal Agent Leahy purported to assign his role as executing constable to Federal Agent O'Mahony. It was only months after the warrant was executed that either Federal Agent Leahy or Federal Agent O'Mahony realised that the warrant failed to name an executing constable.
Execution of the Search Warrant
The occupants of the relevant premises were the accused and his partner. When federal agents attended, a federal agent who was assisting, Federal Agent Boxx, saw the red Toshiba laptop. The laptop was one of five computers at the premises. He asked Federal Agent O'Mahony whether he should seize it. Federal Agent O'Mahony responded in the affirmative.
Federal Agent O'Mahony said that he did so because he believed that the search warrant was valid. “Computers” was listed on the search warrant and he believed that illicit substances had been ordered electronically. He understood that the accused was using the name Jason Causer as an alias.
Federal Agent Boxx said that he identified the laptop as relevant because he understood that a computer would have been used to purchase border controlled drugs from overseas and to track the shipment of the drugs.
The team executing the search warrant did not include a federal agent with computer forensic skills, nor was an expert requested after the federal agents arrived at the premises. At the premises, there was neither a preliminary examination of the contents of the red Toshiba laptop nor of the other three electronic devices that were seized.
Examination of the Red Toshiba Laptop
A later examination of the red Toshiba laptop showed that, on 14 July 2014, a person had used the Windows profile “peter”, to log onto a webmail account. The person had accessed an email that contained a link to a "self-destructing message". It is possible that they also accessed the associated email chain, which dated from 8 July 2014.
Although the email in question had been "destroyed", it was later reconstructed. It read as follows:
Jessica ez064311558us Jeremy ez064311439us Ok, so homeland security was tailing my international shipper. My safety is intact, but he is locked up atm and I am sure the above tracking numbers are compromised. Tracking number ez06311456us may or may not be compromised, but it has not gone through the ISF which is not good. Tracking number ez064311558us has just landed and should be good, but
Execution of Search Warrants
Before turning to consider the submissions in relation to ss 137 and 138 of the Evidence Act, I note the observations of Graham J in Different Solutions Pty Ltd v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686. Referring to the execution of search warrants in general, at [119] – [120] his Honour said:
What should be done when executing a search warrant will vary according to the circumstances of the individual case. However, the power of enforcing a search warrant must, firstly, be exercised in good faith. Secondly, it must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. Thirdly, it must be exercised fairly, having regard to all the circumstances. Fourthly, it must be exercised having regard to the rights of those affected by its exercise, and fifthly, the officer executing the warrant must strictly follow the directions contained in it and must not exceed the limits of the authority conferred by it (see generally per Lockhart J in Crowley v Murphy at 521).
The overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself or herself by search that in all the circumstances of a particular case he or she has whatever documents or things are necessary to answer the terms of the search warrant.
Section 137 of the Evidence Act
Section 137 of the Evidence Act provides:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The accused submitted that the recovered email had little probative value because:
(a)The material was only relevant as coincidence evidence; the tracking numbers in the email had nothing to do with the charges before the Court.
(b)The email was not sent at a time that was proximate to any of the charges. The numbers and names in the email did not refer to any charge. The email did not refer to Jason Causer or any of the hotels identified in the prosecution case.
Further, the accused submitted that there was a significant risk that the jury would use the email for impermissible purposes, such as to strengthen the weaker counts in the indictment and to punish the accused for the content of the message.
The prosecution noted that the defence (in its opening address) had identified as a critical issue whether there was any arrangement between the accused and an unknown drug importer. In addition, the defence had opened on the basis that there was no direct evidence of the accused's state of mind at the time of the offences. The prosecution submitted that it would be open to the jury to infer that the accused operated the subject email account so as to obtain information about illegal importations. Further, the email may serve to explain what otherwise might appear to be a gap in illegal activity between June and August 2014.
I accept the prosecution submission that the email provides significant evidence of the accused's knowledge in the period of June to August 2014 about whether an unknown principal wished to import illicit items. I do not accept the defence submission that the probative value of the email is limited to the fact that it may be evidence of coincidence.
I do not accept that there is a real danger of unfair prejudice. The insight that the email may provide into the accused's state of mind in July 2014 (a month in which no relevant importation occurred) is not an “unfair prejudice”. The jury would be entitled to use the email when assessing the state of mind of the accused in the preceding and following months, June and August. Although the numbers and names in the email do not relate directly to any charge and the email does not refer to Jason Causer or any of the hotels identified in the prosecution case, inferentially the email refers to the importation of illicit substances to Australia (by the reference to “operationau”) from the United States (by the references to “homeland security” and “us”).
In those circumstances, the probative value of the evidence considerably outweighs the danger of unfair prejudice to the accused.
Section 138 of the Evidence Act
In relation to s 138 of the Evidence Act, the accused contends that evidence concerning the recovered email was obtained improperly or in contravention of an Australian law in that:
(a)Contrary to s 3E(5)(d) of the Crimes Act 1914 (Cth), the warrant did not name the executing constable, Federal Agent Leahy. Further, the contravention was compounded by the purported transmission of the status of executing constable by Federal Agent Leahy to Federal Agent O'Mahony.
(b)The seizure of the item was purportedly authorised by s 3F(1)(c) Crimes Act, which enables officers "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." In this case the warrant authorised the seizure of material which satisfied three conditions (see [3] above). However, the seized laptop failed to satisfy the second necessary condition for seizure; it related to the accused, not Jason Causer.
(c)The seized laptop also failed to satisfy the third warrant condition; that the executing constable had reasonable grounds for suspecting that it would afford evidence as to the commission by the accused of an offence of importing or aiding and abetting the importation of a marketable quantity of a border controlled drug. Prior to seizing the red Toshiba laptop, the executing constable made no enquiry concerning the content of the material on the laptop. Consequently, it was not possible that the federal agent had formed the necessary reasonable belief before seizing the laptop.
Section 138 of the Evidence Act relevantly provides:
(1)Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
...
(3)Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights ; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Was there a contravention or impropriety?
In relation to s 138 of the Evidence Act, the first question is: was there an impropriety or contravention (or more than one impropriety or contravention) that prima facie would lead to the exclusion of the evidence? The subject evidence is the recovered email and associated evidence.
The first alleged contravention is that the warrant did not name the executing constable. The prosecution conceded that the search warrant was invalid on that basis.
The second alleged contravention is that the evidential material that was seized related to the accused, rather than Jason Causer.
I do not accept that the seizure failed to satisfy the second warrant condition. On the prosecution case, Jason Causer was an alias used by the accused in connection with the offences. In other words, Jason Causer and the accused were one and the same person.
The third alleged contravention is that the executing constable failed to make enquiries as to the contents of the laptop, and could not have acquired the requisite suspicion on reasonable grounds that the laptop would afford evidence as to the commission by the accused of a relevant offence. The accused submitted that a computer is like a filing cabinet. It is merely a shell that contains information. Absent further enquiry as to the contents of the laptop (equivalent to opening a filing cabinet) or the existence of other information (for example, the proximity of the laptop to other items evidencing the relevant offence), it was not possible for a federal agent to form an affirmative reasonable belief that the laptop contained relevant evidence.
In this context, the accused noted the provisions of ss 3K and 3L of the Crimes Act. Those sections permit officers to operate electronic equipment at warrant premises so as to access data or take computers for the purpose of examining them off site before seizing them.
In relation to the third alleged contravention, the prosecution submitted that there was no contravention; there were reasonable grounds for suspecting that the red Toshiba laptop afforded evidence of the commission of the relevant offences, and Federal Agents O'Mahony and Boxx did form a suspicion based on those reasonable grounds.
In determining whether there are reasonable grounds for the formation of a suspicion, it is necessary to consider the position of the federal agents at the time of the seizure, not with the benefit of hindsight. The reasonable grounds upon which the prosecution relied were:
(a)During the pre‑search briefing, federal agents were informed that electronic devices would or may have been used to order and/or track the relevant substances.
(b)The premises were occupied by only two people, the accused and his partner.
The prosecution said that the federal agents did not merely act in a robotic manner, seizing any and all electronic devices. Rather, they considered the seizure of individual items. The prosecution referred to the fact that there was a fifth computer that federal agents declined to seize because the accused told them that it belonged to his partner and they observed that it was not connected to the Internet. Consequently, the federal agents formed the belief that the computer could not have been used to order and/or track the importation of illegal substances.
It is not clear that the information available to the federal agents at the time of seizure provided reasonable grounds for suspecting that the red Toshiba laptop afforded evidence as to the commission of the offences; the circumstances in the present case are borderline. Without finally deciding this matter, I proceed on the basis that, without further investigation of the content of the computer, there were no reasonable grounds to suspect that the laptop contained evidentiary material, i.e. there was a contravention or impropriety because the seized material did not satisfy the requirements of the warrant.
Does the desirability of admitting the evidence outweigh the undesirability of admitting such evidence?
It is necessary to consider whether, taking the two contraventions together, the desirability of admitting the email evidence outweighs the undesirability of admitting evidence obtained in the way in which the email evidence was obtained. This requires a consideration of the matters in s 138(3) of the Evidence Act, as well as any other relevant matters.
As to s 138(3)(a) of the Evidence Act, I have set out (see [14] – [16] above) the reasons why the email evidence is of significant probative value. It goes to the critical issue of the state of mind of the accused.
As to s 138(3)(b) of the Evidence Act, the prosecution submitted that the email evidence is an important part of the prosecution case because it is one of the few sources of evidence about the state of mind of the accused. The prosecution has no telephone intercept evidence or evidence of recorded conversations. I accept that submission.
As to s 138(3)(c) of the Evidence Act, the proceedings concern six very serious offences. Each carries a maximum penalty of 25 years' imprisonment. A similar offence was considered in R v Manyathala; R v Ojielumhen [2013] ACTSC 115. At [27] Nield AJ observed that such offences were unarguably very serious and noted the “great public importance that people who import prohibited drugs into Australia...be apprehended, charged, convicted and imprisoned.”
As to ss 138(3)(d)-(e) of the Evidence Act, I turn first to consider the contravention that involved the failure to name the executing constable and the consequent invalidity of the purported transmission of the identity of the executing constable from Federal Agent Leahy to Federal Agent O'Mahony.
I accept that the contravention was the product of oversight and the urgency with which the warrant was obtained. Federal Agent Leahy was relatively inexperienced in relation to obtaining search warrants, and he obtained the warrant urgently. Other federal agents were ready to conduct the search and were only waiting on the warrant. Further, under s 3E(5) of the Crimes Act, it was the issuing officer, the magistrate, who had the primary responsibility for naming an executing constable in the warrant. In this respect, this case is similar to R v Sibraa [2012] NSWCCA 19. That is not to say that an officer presenting a draft warrant to an issuing officer should not make an effort to ensure that the warrant is complete. In Sibraa, Whealy JA said at [4]:
Of course, it is plainly desirable that warrants be checked carefully by those responsible for their issue and enforcement but, as I have said, on the facts here a finding of recklessness could not be sustained.
In this case, there was never any doubt that Federal Agent Leahy was intended to be the executing constable and to carry the responsibilities of an executing constable. There was no intention to "trample the rights of the accused". The defence conceded that there was no evidence of malice on the part of the federal agents and characterised the conduct of the federal agents as "gross carelessness" and "incompetence"; something falling short of recklessness. I agree that the conduct of the federal agents fell short of recklessness.
In the context of ss 138(3)(d)-(e) of the Evidence Act, I now consider the allegation that the executing constable did not have reasonable grounds to form the requisite suspicion that the laptop would afford evidence as to the commission by the accused of a relevant offence.
First, I note that Federal Agents O'Mahony and Boxx each turned their minds to whether the red Toshiba laptop should be seized (see [28] above). However (assuming that there were no reasonable grounds, as I do assume (see [29] above), neither Federal Agent considered with the necessary level of clarity and focus the question of whether there were reasonable grounds to suspect that the particular red Toshiba laptop would afford evidence as to the commission of a relevant offence.
As to s 138(3)(f) of the Evidence Act, although the matter was not argued, there may have been a breach of the right conferred by art 17 of the International Covenant on Civil and Political Rights (unlawful interference with privacy and home). In any event, there was a breach of “rights” in the sense that the invalid search warrant resulted in a trespass to the property of the accused and his partner. It is relevant to take that trespass into account (although not under s 138(3)(f) of the Evidence Act).
Section 138(3)(g) of the Evidence Act does not arise for consideration.
As to s 138(3)(h) of the Evidence Act, it is clear that alternative means were available to effect the search of the premises without contravention of the law and without risk of the loss of significant evidence. A valid warrant could have been sought if attention had been given to the fact that the executing constable was not named in the original document. In relation to whether there were reasonable grounds for thinking that the red Toshiba laptop contained evidential material, forensic officers could have been brought to the premises and the item could have been the subject of a preliminary examination under either of ss 3K or 3L of the Crimes Act before it was formally seized. The prosecution has not argued that resources were inadequate to invoke one of those provisions.
It is in the context of these considerations that I return to consider the question that arises under s 138(1) of the Evidence Act: whether, taking both contraventions together, the prosecution has satisfied the Court 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 considering that question, I do so in the broader context of the general considerations applicable to search warrants (see [11] above).
I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained. Of particular importance to this decision are the factors referred to above concerning the probative value of the evidence, its importance to the proceedings, the nature of the charges before the Court, and the fact that the contraventions were a result of carelessness and lack of focus rather than deliberate or even reckless misconduct.
The evidence will be admitted.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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