R v Song (No 1)
[2017] ACTSC 147
•14 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Song (No 1) |
Citation: | [2017] ACTSC 147 |
Hearing Date: | 14 June 2017 |
DecisionDate: | 14 June 2017 |
Reasons Date: | 23 June 2017 |
Before: | Mossop J |
Decision: | The application be dismissed |
Catchwords: | EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Admissibility of evidence – search warrant – time of issue contains error– warrant executed prior to time of the issue identified on warrant – whether items seized prior to time of issue shown on face of warrant should be admitted into evidence – impropriety or contravention of Australian law – significant probative value of evidence – evidence to be admitted – s 138 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT), s 114B Criminal Code 2002 (ACT), s 603(7) Listening Devices Act 1984 (NSW) Evidence Act 2011 (ACT), ss 138, 192A Human Rights Act 2004 (ACT), s 12 International Covenant on Civil and Political Rights, [1980] ATS 23, article 17 |
Cases Cited: | Commissioner of Police v Barbaro [2001] NSWCA 57; 51 NSWLR 419 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Stankovich [2004] ACTSC 93; 149 A Crim R 88 |
Parties: | The Queen (Crown) Chang-Kee Song (Accused) |
Representation: | Counsel Ms K McCann (Crown) Mr J Stewart (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 256 of 2017 SCC 257 of 2017 |
MOSSOP J:
Introduction
The accused is charged with trafficking a controlled drug other than cannabis namely heroin (Criminal Code 2002 (ACT) s 603(7)) and money laundering (Crimes Act 1900 (ACT) s 114B). He applied for a ruling that evidence gathered during the execution of a search warrant at his house on 10 June 2016 not be admitted into evidence. The application was one which was heard under s 192A of the Evidence Act 2011 (ACT) immediately after the accused was arraigned but in advance of evidence in the trial being called. On 14 June 2017 I dismissed the application. These are my reasons.
Evidence
In support of the application the accused read an affidavit of his solicitor, sworn 14 June 2017, which annexed:
(a)the indictment dated 13 December 2016;
(b)the case statement prepared by the Director of Public Prosecutions filed on 14 December 2016; and
(c)a copy of the warrant executed by police on 10 June 2016.
The Crown tendered:
(d)a transcript of conversations between police and the accused during the execution of the search warrant; and
(e)the Australian Federal Police (‘AFP’) property seizure records showing the items seized by police and the time at which they were seized.
Six police officers who were involved in the execution of the search warrant also gave oral evidence.
Drugs of Dependence Act
The warrant in question was a warrant issued under s 187(3) of the Drugs of Dependence Act 1989 (ACT) (‘DOD Act’). Section 187 provides, relevantly:
187 Search warrants
(1) In this section:
issuing officer means –
(a) a judge, the registrar or a deputy registrar of the Supreme Court; or
...
private place does not include a place ordinarily private that is for the time being –
(a) used for a public purpose; or
(b) a place of common resort; or
(c) open to the public, on the payment of money or otherwise.
...
(3) If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable to –
(a) enter any place named or described in the warrant; and
(b) search the place for things of that kind; and
(c) if the place is a private place – to search any person found at or in the place, or any person whom he or she reasonably believes to be about to enter or to have recently left the place, and the clothing that the person is wearing, or property in the apparent control of the person, if the police officer believes there are reasonable grounds for suspecting that things of that kind may be on the person or in the clothing that the person is wearing or in property in the apparent control of the person; and
(d) to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.
(4) An issuing officer shall not issue a warrant under this section unless –
(a) the informant or some other person has given to the issuing officer, either orally or by affidavit, the further information (if any) the issuing officer requires about the grounds on which the issue of the warrant is being sought; and
(b) the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
(5) An issuing officer may issue a warrant under subsection (2) or (3) subject to conditions limiting the powers set out in the relevant subsection.
(6) A warrant issued under this section shall state or set out –
(a) the purpose for which the warrant is issued, including a reference to the nature of the offence in relation to which the entry and search are authorised; and
(b) whether the entry or search is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) a description of the kind of things authorised to be seized; and
(d) any conditions to which the warrant is subject; and
(e) if the warrant is issued under subsection (2) – a way of identifying each person specified in the warrant by –
(i) name; or
(ii) description; or
(iii) a photograph of the person attached to the warrant; and
(f) a date, not later than 28 days after the date of issue of the warrant, when the warrant will cease to have effect.
(7) If, in the course of searching in accordance with a warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds any thing that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.
Findings
Senior Constable Gareth Harms attended the ACT Supreme Court at about 10:30am on 10 June 2016. He met with the Deputy Registrar of the Court at about 11:00am and a DOD Act warrant was issued shortly thereafter. He returned to the Winchester Police Centre and passed the warrant on to First Constable Christopher Watson between 3:00pm and 3:30pm. He did not notice that the warrant had 11:12pm rather than 11:12am written on it. First Constable Christopher Watson gave the warrant to Senior Constable Bradley Pumphrey a short time after 6 pm that evening. He didn’t notice that the warrant said 11:12pm on it as the time of signing. Senior Constable Pumphrey had the warrant in his possession when the warrant was executed at 8:10pm at the address of the accused. He was not aware that it said 11:12pm, a time after the time when the warrant was executed. Had he noticed that he would have sought some clarification from more senior officers. Senior Constable Jonathan Turkich participated in the search. He endorsed the warrant so as to show the time at which the search was concluded. Had he seen that the warrant said 11:12pm then prior to search commencing he would have raised the issue with the warrant holder and a team leader to obtain a decision about whether or not to execute it. Detective Sergeant Richard Gough was a team leader at the ACT Drugs and Organised Crime Team in the Criminal Investigations section of the AFP. He was not aware that the warrant was identified as having been issued at 11.12pm. He said that if this error had been drawn to his attention he would still have executed the warrant as he would have concluded that the reference to “pm” on the warrant was an error.
Section 138
Section 138 of the Evidence Act provides:
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.
Submissions of the accused
Counsel for the accused submitted that the evidence gathered between 8:10pm and 11:12pm should not be admitted into evidence. That was because, having regard to the time stated on the warrant, the search and seizure of items up until that time was not authorised by the warrant. He did not contend that evidence seized after 11.12pm was obtained as a result of any contravention of the law.
Was there a contravention of an Australian law?
What is alleged in the present case is a contravention of an Australian law rather than an impropriety falling short of such a contravention. The issue is whether or not a warrant issued under the DOD Act is effective to authorise a search if it mistakenly states that it is issued at a time after the commencement of the search when in fact it was issued prior to the commencement of the search. If it was not effective then, in the circumstances, the search was unlawful: DOD Act s 184.
Counsel for the accused placed particular reliance upon the ex tempore decision of Higgins CJ in R v Ljubic [2013] ACTSC 125. In that case the warrant on its face stated that it was issued on 7 November 2011 when the date should have been 7 April 2011. It was executed at 10:10pm on 7 April 2011. His Honour’s reasons provided at [1]:
In this case, as has been conceded at the outset, the warrant purporting to have been issued on 7 November 2011 and to have been executed at 10:10 pm on 7 April 2011 is, on the face of it, an impossibility, and on the face of it, the warrant is invalid. It is invalid in the respect that the date November is plainly incorrect. I am satisfied on the evidence before me, that the date should have been April 2011, had it been written properly.
The balance of his Honour’s reasons appear to relate to the exercise of discretion as to whether or not, notwithstanding the invalidity, the evidence obtained as a result of the warrant should be admitted into evidence. His Honour referred to and elaborated upon the critical comments made by Spender J in R v Stankovich [2004] ACTSC 93; 149 A Crim R 88. He did not admit the evidence.
Counsel for the Crown relied upon the decision of the New South Wales Court of Appeal in Commissioner of Police v Barbaro [2001] NSWCA 57; 51 NSWLR 419. That case involved a listening device warrant. Such a warrant was required to specify the period during which the warrant was in force. The warrant was said to be in force from “4:30 pm on 15 December 1997 to 4:30 pm on 4 January 1997”. It was clear that the latter date should have been 4 January 1998. The second “1997” was obviously a mistake. The principal decision of the Court of Appeal was delivered by Handley JA with whom Meagher JA agreed. Priestley JA delivered a short concurring judgment. Handley JA identified that the Act required the warrant to specify the period during which it was in force and that a failure to do so would invalidate the warrant: at [16]. He reasoned that a mere false description did not vitiate the warrant if there was sufficient certainty: at [19]. His Honour concluded that no-one who was required to act on, and comply with, the warrant, could possibly have been misled and hence the warrant was not invalid: at [22].
In my view the starting point must be the terms of the DOD Act. The terms of the Act will determine whether the intention of the legislature is that the failure to include or describe a particular matter in the warrant is intended to render the warrant invalid or ineffective: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 389-391.
Section 187(6) sets out matters which must (“shall state or set out”) be included in the warrant. Section 187(6)(f) requires it to specify an end date not later than 28 days after the date of issue when the warrant ceases to have effect. There is no requirement that the start date be specified. There is no requirement that the time at which the warrant is signed must be specified. Having regard to the nature of the warrant and the terms of s 187(2)–(3), this section must be read as permitting a warrant to operate only prospectively, that is, from the time when it is issued.
There is no form for a warrant under s 187 approved by the Minister pursuant to s 205 of the DOD Act, the provision permitting the approval forms.
It is therefore not a clear case of invalidity where the statute has mandated, either directly or through the approval of a form, that a particular matter must be included in the warrant and the warrant has failed to include that matter.
Relevant for present purposes are the following portions of the warrant:
This warrant may be executed at any time of the day or night.
This warrant comes into force at the time it is signed and will cease to have effect at the start of the 8th day of July 2016
This warrant is subject to the following conditions:
Nil
…
Given under my hand at Canberra in the Australian Capital Territory
This 10th day of June 2016 at 11:12pm
[the name of the Deputy Registrar and her signature are then set out]
The terms highlighted in bold text have been written by hand upon the warrant. Having regard to the form of the warrant, the time stated immediately prior to the name of the issuing officer is of significance because the warrant is stated to come into force “at the time it is signed”. It is therefore useful to identify that time within the document. In most cases the specification of the time would be redundant because if a police officer has a warrant in his or her possession at the commencement of the search, then the warrant must have been issued prior to that time. However in some cases where there is a contest about when a search commenced, or no clear identification of the warrant at the point of commencement of the search, the specification of the time of issue in the warrant itself may be significant in determining whether the warrant was issued before or after the commencement of a search.
I did not accept the submission made by counsel for the accused that the time stated as the time at which the warrant was issued became a condition upon the execution of the warrant under s 187(6)(d) of the DOD Act. That is because the time of issue is not stated to be such a condition and the warrant expressly identifies that there are “Nil” conditions to which it is subject.
The warrant identified that it came into force at the time that it was signed. However, it incorrectly identified that time as 11:12pm rather than 11:12am. Read without knowledge of the extrinsic fact as to when it was signed, the warrant is internally consistent and would only operate from 11:12pm on 10 June 2016. However, with knowledge of the extrinsic fact that it was signed at 11:12am, there is an inconsistency because it states that it has effect from the time of signing but states that time to be later than in fact was the case. Can it be effective from that earlier time?
The result in R v Ljubic would suggest that it cannot. However it is hard to discern from the decision in R v Ljubic what the reasons were for the conclusion that the warrant was invalid. It appears to be implicit in the decision that the date of issue stated upon the warrant is conclusive for the purposes of the validity of the warrant even if the evidence demonstrates that it is not the date upon which it was in fact issued. The reasons did not explain why this would be the case.
The present case is distinguishable from Commissioner of Police v Barbaro. In that case the warrant was one under the Listening Devices Act 1984 (NSW). It was not a warrant that needed to be produced to anyone the subject of the warrant because, necessarily, the listening pursuant to the warrant occurred covertly. Further, having regard to the nature of the mistake, it must have been clear that the end date of the warrant was in the next year.
In the present case, the warrant was one which may have to be produced to the person whose property was being searched. Further, the mistake was not one which was as obvious in Commissioner of Police v Barbaro. In the present case a reader of the warrant at 8:10pm when it was executed would have had both the statement that the warrant came into effect at the time when it was issued and the statement that it was issued at 11:12pm. That would have been an impossibility, but in the absence of further information beyond that contained in the warrant, it would not be clear what the error was or how the impossibility could be avoided.
I ultimately concluded that it was not necessary to reach a final view as to the time from which the search warrant operated. That was because even if the search warrant operated only from 11:12pm and hence there was a contravention of the law as a consequence of the execution of the warrant at an earlier time, I reached the conclusion that the evidence should be admitted by reason of s 138 of the Evidence Act. I now turn to the operation of that section.
Should the evidence be admitted under s 138?
Proceeding on the basis that there has been a contravention of an Australian law because evidence was obtained during the search from 8:10pm until 11:12pm, that evidence 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”. In determining that issue it is necessary to have regard to the matters set out in s 138(3) and I will deal with each of these matters in turn.
(a) the probative value of the evidence: The evidence obtained between 8:10pm and 11:12pm was as follows:
(a)a black bag with elastic bands suspected to contain heroin;
(b)green vegetable matter suspected of being cannabis;
(c)a “half ball” and a used “half ball” suspected to be heroin;
(d)three street deals containing material suspected to be heroin in a silver tin;
(e)$1035 in cash located on the accused;
(f)$19 430 in cash located on the kitchen bench; and
(g)a motor vehicle and a mobile phone which were not said to be of any significance.
Items (a), (c), (d), (e) and (f) are all matters which have significant probative value as part of the Crown’s case that the accused was dealing in heroin and that the money was derived from that unlawful activity. The heroin was in a form and of a quantity that might be sold. Cash in the quantities found was consistent with the accused selling heroin.
(b) the importance of the evidence in the proceeding: The presence of drugs and cash are a significant component of the Crown’s case that the accused was dealing in heroin. Other significant components of the evidence in the Crown case were the fact that a large quantity of cash was found in a safe amongst the foundations of the house, the content of intercepted telephone calls, and the results of surveillance of the activities of the accused. Without the evidence of the actual heroin found during the early part of the search, it is very unlikely that the Crown case could succeed.
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding: The proceeding is a criminal proceeding. The offence of trafficking is a serious one, carrying a maximum period of imprisonment of 10 years. The offence of money laundering also carries a maximum period of imprisonment of 10 years.
(d) the gravity of the impropriety or contravention: On the assumption that I have made that the warrant was only effective from 11:12pm, the contravention involved the entry upon premises and the commencement of a search by police officers three hours in advance of the time at which their search was authorised. In one sense it is a significant invasion of a person’s residential premises by officers of the state. On the other hand, it involves merely the bringing forward of the time at which such an invasion was to occur in any event.
(e) whether the impropriety or contravention was deliberate or reckless: The contravention of the law was not deliberate. No officer was aware of the error made by the Deputy Registrar or the legal consequence that I have assumed. Nor was the contravention reckless because each officer considered that the warrant was valid to authorise their search and no officer detected the error.
I recognised the criticisms made of the lack of care taken in relation to the form of warrants made in R v Stankovich and R v Ljubic. In the present case the problem was not one of defective drafting of the warrant to be executed by the issuing officer but instead the failure to check the warrant as executed so as to detect the error made by the Deputy Registrar. The latter situation reflects less poorly on the officers obtaining and seeking to rely upon the warrant than the former situation would.
International Covenant on Civil and Political Rights(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the : The contravention was inconsistent with the right under article 17 of the ICCPR of the accused to be free of “arbitrary or unlawful interference with his privacy [or] home”. It was also inconsistent with the equivalent right under s 12 of the Human Rights Act 2004 (ACT).
(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: No proceedings have been or are likely to be taken in relation to the contravention.
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: A search warrant was necessary to obtain the evidence. Had the error been recognised in business hours and in advance of the search it would have been possible to have returned to the Supreme Court to have the Deputy Registrar correct her mistake. Had the error not been noticed during business hours then it would have been necessary to either postpone the planned search or obtain a fresh warrant from a duty magistrate, which would have been more complicated, but still a reasonably practicable process. There was no evidence of any particular urgency in conducting the search as might exist if there was perception that the accused had recognised that he had been under surveillance and may take steps to destroy or conceal evidence.
The factors identified in s 138(3) are not exclusive. However there do not appear to be other matters which require consideration apart from those which I have addressed above.
The conduct of the police did not involve any intentional or reckless contravention of the law. Rather, any unlawfulness arose from an administrative error on the part of the Deputy Registrar, which was not detected by the police. In those circumstances, although there was a failure of the Deputy Registrar and the police to methodically check the terms of the warrant as issued, having taken into account all of the factors in s 138(3) I considered that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that has been obtained as a result of such a defective warrant.
I therefore dismissed the application made by the accused.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 June 2017 |
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