R v Sorensen
[2013] WASC 135
•18 APRIL 2013
R -v- SORENSEN [2013] WASC 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 135 | |
| Case No: | INS:45/2013 | 12 APRIL 2013 | |
| Coram: | HALL J | 18/04/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN PETER JOHN SORENSEN |
Catchwords: | Criminal law Application to exclude evidence obtained pursuant to a search warrant Federal search warrant Section 3E Crimes Act 1914 (Cth) Whether warrant valid Whether warrant issued on basis of information on oath Whether affidavit of applicant met formal requirements Whether error in date of suspected offence was a material error |
Legislation: | Crimes Act 1914 (Cth), s 3, s 3C, s 3E, s 3F Oaths, Affidavits & Statutory Declarations Act 2005 (WA), s 9, s 16 |
Case References: | Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523; (1991) 58 A Crim R 1 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Coward v Allen (1984) 52 ALR 320 Entick v Carrington [1558-1774] All ER Rep 41; (1765) 95 ER 807 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 Hart v Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 Harts Australia Ltd v Commissioner Australia Federal Police (1997) 75 FCR 145; (1997) 94 A Crim R 177 Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 Parker v Churchill (1985) 9 FCR 316 Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 Price v Elder [1999] FCA 1353; (1999) 43 ATR 172 Seeter Pty Ltd v Commonwealth [2004] FCA 1104; (2004) 210 ALR 437 Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
PETER JOHN SORENSEN
Accused
Catchwords:
Criminal law - Application to exclude evidence obtained pursuant to a search warrant - Federal search warrant - Section 3E Crimes Act 1914 (Cth) - Whether warrant valid - Whether warrant issued on basis of information on oath - Whether affidavit of applicant met formal requirements - Whether error in date of suspected offence was a material error
Legislation:
Crimes Act 1914 (Cth), s 3, s 3C, s 3E, s 3F
Oaths, Affidavits & Statutory Declarations Act 2005 (WA), s 9, s 16
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D W L Renton
Accused : Ms H E Prince
Solicitors:
Applicant : Director of Public Prosecutions (Cth)
Accused : Esplanade Legal
Case(s) referred to in judgment(s):
Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523; (1991) 58 A Crim R 1
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Coward v Allen (1984) 52 ALR 320
Entick v Carrington [1558-1774] All ER Rep 41; (1765) 95 ER 807
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348
Hart v Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384
Harts Australia Ltd v Commissioner Australia Federal Police (1997) 75 FCR 145; (1997) 94 A Crim R 177
Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Parker v Churchill (1985) 9 FCR 316
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Price v Elder [1999] FCA 1353; (1999) 43 ATR 172
Seeter Pty Ltd v Commonwealth [2004] FCA 1104; (2004) 210 ALR 437
Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175
- HALL J:
Introduction
1 The accused is charged that on 19 January 2012 at Beechboro, he attempted to commit an offence against s 307.5 of the Criminal Code (Cth) (the Code) in that he attempted to possess a substance, being a substance that was unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity, contrary to s 11.1(1) of the Code. He has entered a plea of not guilty and provisional trial dates have been set for 19 - 26 June 2013.
2 Prior to the trial the accused has sought a ruling regarding the admissibility of evidence obtained pursuant to a search warrant. The accused submits that the search warrant was invalid and that any evidence obtained pursuant to it was unlawfully obtained and ought to be excluded in the exercise of the court's discretion: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. The exercise of discretion only arises in the event that the search warrant is shown to be invalid.
3 The accused submits that the warrant is invalid because it contains an error in the description of the offence to which it relates. It is further submitted that the warrant was not validly issued because the affidavit provided by the applicant police officer did not comply with the requirements of the Oaths, Affidavits & Statutory Declarations Act 2005 (WA). It is also submitted, for reasons which are not entirely clear, that the magistrate who issued the warrant should not have acted upon the affidavit because it was sworn before him rather than before some other authorised person.
4 For the reasons that follow I am unable to accept that the search warrant was invalid or that the seizure of the particular items in question was not authorised by the warrant. The application by the accused to exclude those items is therefore dismissed.
The prosecution case
5 The prosecution case is that on 16 January 2012 federal law enforcement authorities intercepted a parcel from South Africa addressed to 'R. Harris, 24 Small Street, Beechboro, WA 6063'. A declaration attached to the outside of the parcel stated that it contained three wine bottles. A contact mobile telephone number was also stated.
6 The parcel was opened and found to contain three wine bottles, concealed within which was a total of 2,328.3 g of methamphetamine. The drugs had a purity of approximately 47% producing a total pure weight of 1,101.9 g. The drugs were removed and substituted and the parcel was resealed. The intention was to conduct a controlled delivery of the parcel to the address in Beechboro.
7 On 18 January 2012 a federal police officer applied for and obtained a search warrant in respect of 24 Small Street, Beechboro. The application was made pursuant to s 3E of the Crimes Act 1914 (Cth). The officer who applied for the warrant was Federal Agent Bryan Ramsbottom. Federal Agent Ramsbottom has provided a statement describing the procedure followed in obtaining the warrant. The statement was not disputed and Federal Agent Ramsbottom was not required to give oral evidence at the hearing of this application.
8 Federal Agent Ramsbottom states that he attended upon a magistrate at the Perth Magistrates Court at 2.30 pm on 18 January 2012. He states that there was a brief conversation about federal police roles and responsibilities and that he then proceeded to give the magistrate 'background information in relation to the present matter'. A five page document entitled 'Affidavit for a Warrant to Search Premises' was produced and the magistrate asked Federal Agent Ramsbottom whether he swore that the information contained in the document was true and correct. Federal Agent Ramsbottom swore that it was and then signed the last page next to a clause which read:
Sworn at Perth in the State of Western Australia this 18th day of January, 2012
- The magistrate also signed on the same page below the words 'before me'.
9 It is unnecessary to summarise the contents of the affidavit. It is not suggested that the contents were insufficient to establish that Federal Agent Ramsbottom had reasonable grounds for suspecting that there was evidential material at 24 Small Street, Beechboro, rather what is submitted is that the material provided was not 'on oath' as required by s 3E of the Crimes Act. I will explain the basis for that claim later in these reasons.
10 The magistrate issued the search warrant by signing the copy provided and giving it to Federal Agent Ramsbottom. The material parts of the search warrant provide as follows:
WHEREAS I [the magistrate] an issuing officer within the meaning of section 3E of the Crimes Act 1914, am satisfied by information on oath within the meaning of the Crimes Act 1914 that there are reasonable grounds for suspecting that there is at premises located at:
24 Small Street, Beechboro, Western Australia 6063
evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following THREE conditions namely:
FIRST CONDITION
Things which are:
originals or copies of any one or more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device:
Consignment number 4844568120
Bottles of wine
Methamphetamine
Cardboard box
Wrappings
Drug Paraphernalia
Correspondence
Scales
Cash
Mobile Phones
Narcotics namely Cocaine
Money Remittance Advices
Bank Statements
Telephone Bills Envelopes
Notes
Notebooks
Passports
Invoices
Diaries
Correspondence
Receipts
- International money transfer documents
SECOND CONDITION
And which relate to any one or more of the following:
R Harris
24 Small Street, Beechboro, WA
Postnet - Kyalami
Shop Fl Kyalami Downs Kyalami BLD
Kyalami 1684 South Africa
- DHL Express
THIRD CONDITION
On or about 21 September 2011, 'R Harris' or persons as yet unknown, imported a substance being a border controlled drug, namely Methamphetamine, and the quantity imported being a commercial quantity contrary to sections 307.1 and section 11.1 of the Criminal Code Act 1995 (Cth) punishable life imprisonment or 7,500 penalty units, or both. Punishable by life imprisonment or 7,500 penalty units, or both; and
R Harris or persons as yet unknown attempted to possess an unlawfully imported commercial quantity of a border controlled drug, contrary to sections 307.1 and section 11.1 of the Criminal Code Act 1995 (Cth) punishable by life imprisonment or 7,500 penalty units, or both ...
12 On 19 January 2012 a controlled delivery of the parcel to 24 Small Street, Beechboro was undertaken. The accused took delivery of the parcel. Later that day the federal police executed the search warrant. During the search they located the parcel, which was unopened. A black Nokia mobile telephone was also located and it was established that the telephone had a number which corresponded to the telephone number on the parcel other than that the number on the parcel had one additional digit. Also located was an unopened envelope addressed to 'R Harris, 24 Small Street, Beechboro WA'.
13 The accused was present during the execution of the search warrant. During the course of the search he was asked a number of questions by the police. He was given the standard caution and the proceedings were recorded on video. The transcript has been included in the prosecution brief and I assume that the prosecution will seek to rely upon statements made by the accused as being alleged admissions. In particular the accused admitted that he had received the parcel, though he denied it was intended for him. He said that he had been living at the premises for approximately six weeks and that other mail had arrived for the owner who was then overseas. The owner is not named Harris, nonetheless he suggested that the parcel could have been for the owner or someone connected to her. Two mobile telephones were located during the search, one of which had the number that closely corresponded to that on the parcel. The accused admitted that the telephone in question was his but said that he had been given the telephone, that it was faulty and that he had not used it. As regards the unopened envelope the accused said that it had arrived earlier that week or the week before.
14 The accused was provided with a copy of the search warrant at the commencement of the search and was given an opportunity to read it. As is evident, the third condition in the warrant refers to a date of 21 September 2011. The same date also appeared in the affidavit provided to the magistrate. Federal Agent Ramsbottom states that this was a typographical error that was inadvertently missed during his 'data entry process' and that the date that should have been referred to was 16 January 2012. According to the prosecution brief the parcel arrived in Australia on 14 January 2012 (see statement of Paul Anthony Brown), although the drugs were detected by a customs officer on 16 January 2012 (see statement of Neville Gordon Rutter).
Relevant legal principles
15 It is a fundamental common law right that a person in possession of private property can exclude others from it and unauthorised entry onto it is trespass: Entick v Carrington [1558-1774] All ER Rep 41; (1765) 95 ER 807, 817; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 435. A police officer who enters or remains on private property without the leave or licence of the person in possession of it commits a trespass unless the entry or presence on the premises is authorised or excused by law: Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 639; Coco (436).
16 Section 3E of the Crimes Act provides a statutory basis upon which federal police officers can lawfully enter private property and seize evidential material without the consent of the owner or the person in possession. Section 3E relevantly provides as follows:
(1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
...
(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a) the offence to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) 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; and
(e) the time at which the warrant expires (see subsection (5A)); and
(f) whether the warrant may be executed at any time or only during particular hours.
...
(6) The issuing officer is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) 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) a thing relevant to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
...
(11) An issuing officer in a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or Territory; or
'evidential material' means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.
...
'issuing officer', in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:
(a) a magistrate; or
(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.
18 One of the terms used in the definition of evidential material is 'a thing relevant to an indictable offence'. This term is itself defined in s 3 of the Crimes Act as follows:
'thing relevant to an indictable offence' means:
(a) either of the following:
(i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
19 The things that are authorised by a search warrant are provided for by s 3F of the Crimes Act. That section relevantly provides as follows:
(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, if the premises are a conveyance, to enter the conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(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
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and
(e) 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 seizable items; and
(f) if the warrant so allows to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
21 In Hart v Commissioner, Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 a Full Court of the Federal Court (French, Sackville & Nicholson JJ) considered the principles that apply to the construction of pt 1AA of the Crimes Act. Their Honours said that construction of a provision authorising the search of premises and the seizure of things begins with the ordinary meaning of the words 'considered according to their context and legislative purpose' [64]. They also said that the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them [65]. They said effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of offences. Statutes are not to be construed narrowly but consistently with the operation or reality applicable to the issue and execution of warrants [68]. Their Honours concluded by saying:
In particular, there is no requirement that the Court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power [68].
22 While the power to issue a warrant must be exercised judicially that does not mean that the power should be characterised as a judicial power: Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348. An issuing officer may happen to be a magistrate but the decision to issue a warrant is an administrative act performed as a designated person: Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307. Thus an application to obtain a warrant is not a judicial proceeding or subject to the rules and requirements that may relate to such proceedings.
23 Challenge to a warrant in criminal proceedings is limited to the validity of the warrant on its face. This is because it is an executive act or decision. As such it is susceptible to judicial review but not to any appeal process. It necessarily follows it is not open to a trial judge in a criminal trial to adjudicate on whether the information before the issuing officer was sufficient or to decide on whether the issuing officer was in fact satisfied as to any statutory requirements: Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 80, 85 (Toohey J). The admissibility of evidence obtained pursuant to a warrant depends on the existence of the warrant not on the sufficiency of the material upon which the issuing officer granted it: Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 105.
24 As regards the requirement in s 3E(5) that the offence to which the warrant relates be stated in the warrant, in Harts Australia Ltd v Commissioner Australia Federal Police (1997) 75 FCR 145; (1997) 94 A Crim R 177 the Federal Court noted that this requirement was new but that case law in respect of the previously existing provision had required that a valid warrant needed to disclose the nature of the offence relied upon. Accordingly, earlier cases on s 10 of the Crimes Act remained relevant.
25 One of the relevant cases in that regard was Beneficial Finance Corp Ltd v Australian Federal Police Commissioner (1991) 31 FCR 523; (1991) 58 A Crim R 1, a decision of the Full Federal Court. In that case Burchett J said that the authorities made it clear that the statement of an offence in a search warrant did not have to be made with the precision of an indictment. His Honour said that such precision would be impossible bearing in mind the stage of an investigation at which a search warrant may issue. The purpose of the statement of an offence in the warrant is not to define the issues for trial but to set the bounds for the search authorised by the warrant. His Honour said that the concern was not with the sort of error that might vitiate an indictment but with a lack of certainty such that the warrant may purport to be a general warrant of the kind the law decisively rejected in the 18th century.
26 In the earlier case of Parker v Churchill (1985) 9 FCR 316, 319 Burchett J said that the function of the indication of an offence in a search warrant was to establish
a nucleus for the search. It enables both the officer executing the warrant, and the citizen whose premises are subjected to it, to form some judgment whether particular things are relevant or irrelevant, and particular actions authorized or unauthorized. Of necessity the lines cannot be precisely drawn, since the warrant is not concerned with what is known, but with what 'there is reasonable ground for suspecting that there is'. The warrant is a map, drawn upon 'reasonable grounds for believing', of a terra incognita. But the outline of that which is so believed must be sufficiently indicated to set the appropriate bounds to the search.
27 In Beneficial Finance Burchett J concluded by saying that there was no requirement that a search warrant must identify a suspected offence with exactness. He said:
The matter should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals (21).
28 A warrant which did not identify the statute that the alleged offences arose under, but otherwise specified the substance of the offences in question, was upheld in Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175. See also Seeter Pty Ltd v Commonwealth [2004] FCA 1104; (2004) 210 ALR 437 and Price v Elder [1999] FCA 1353; (1999) 43 ATR 172. In Coward v Allen (1984) 52 ALR 320 the suspected offences were held to be sufficiently particularised despite no date being referred to.
Was the warrant issued on the basis of information 'on oath'?
29 Section 3E requires that an issuing officer can only be satisfied that it is appropriate to issue a warrant on the basis of information on oath or affirmation. The section does not stipulate whether the information is to be provided orally or in writing. It does not require that it be in the form of an affidavit.
30 In determining whether the warrant is valid the appropriate starting point must be the face of the warrant. On its face the warrant in this case states that the issuing officer is satisfied on the basis of information on oath that there are reasonable grounds for suspecting that there is evidential material at the nominated premises. On this basis the warrant on its face meets the requirements of s 3E(1).
31 The accused's challenge in this respect is not based upon the terms of the warrant but on the sufficiency of the material which grounded it and whether it was open to the magistrate to reach the required satisfaction on the basis of that information. This involves going behind the warrant and impermissibly challenging the basis upon which it issued. On that basis alone the objection to the warrant can not be upheld. However even if I am wrong in this regard and it was open to challenge the sufficiency of the affidavit, I would not uphold the accused's objection for the reasons that follow.
32 The affidavit does not form part of the prosecution brief, it has, however, been disclosed to the accused. In some cases public interest privilege may result in part or all of the contents of such an affidavit not being disclosed. That is not the case here. However, it should not be presumed that simply because the affidavit has been disclosed that this opens up new avenues of challenge to the warrant. An attack upon the formal adequacy of the affidavit is materially the same as an attack upon the sufficiency of its contents. However, even if a distinction could be drawn there are difficulties with the argument of the accused that the affidavit is formally defective.
33 The accused first submitted that the affidavit is defective because it does not comply with the requirements of s 9 of the Oaths, Affidavits & Statutory Declarations Act (WA). That section provides as follows:
9. Affidavits, how made
(1) Unless another written law provides otherwise, an affidavit for any purpose in this State must be made in accordance with this section.
(2) The affidavit must conclude with a statement that says -
(a) it is sworn or affirmed, as the case requires, by the person making it in the presence of an authorised witness; and
(b) where and when it is sworn or affirmed.
(3) The person who is making the affidavit must -
(a) sign or personally mark the statement required by subsection (2) and each other page of the affidavit;
(b) sign or initial any alteration, such as an insertion or erasure, that has been made to the affidavit; and
(c) in the presence of an authorised witness, say orally on oath or orally affirm -
(i) that he or she is the person named as the maker of the affidavit;
(ii) that the contents of the affidavit are true;
(iii) that the signature or mark is his or hers; and
(iv) if necessary, that any attachment to the affidavit is the attachment referred to in it.
(5) After the maker has complied with subsection (3)(c), the authorised witness must -
(a) under or near the statement required by subsection (2) -
(i) sign or personally mark the affidavit; and
(ii) imprint or clearly write his or her name and qualification as an authorised witness;
(b) sign or personally mark each other page of the affidavit; and
(c) sign or initial any alteration in the affidavit that has been signed or initialled by the maker.
(6) An authorised witness for an affidavit that is made at a place within Western Australia is -
(a) a Justice of the Peace;
(b) an experienced legal practitioner, unless excluded by subsection (7);
(c) a public notary within the meaning of the Public Notaries Act 1979; or
(d) any person referred to in section 6(2).
(7) An experienced legal practitioner who has participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used, is not an authorised witness for the affidavit.
(8) An authorised witness for an affidavit that is made at a place outside Western Australia is -
(a) a judge of a court of that place, or a magistrate or justice of the peace of or for that place;
(b) a notary public;
(c) a prescribed consular official who is performing official functions at that place; or
(d) a person who has authority under the law of that place to administer an oath to another person.
(9) Subsections (6), (7) and (8) do not affect any other written law that expressly provides for an affidavit to be made before a person other than a person referred to in the subsections.
34 It is submitted that the affidavit is not signed or personally marked by Federal Agent Ramsbottom on each page as required by s 9(3)(a). It is submitted that the magistrate did not clearly write his name as required by s 9(5)(a)(ii) and did not sign or personally mark each page of the affidavit as required by s 9(5)(b). It is also submitted that the magistrate is not an authorised witness because he is not an experienced legal practitioner as referred to in s 9(6) in that he is not a certificated practitioner and is not subject to an exemption from holding a practicing certificate pursuant to s 36 of the Legal Profession Act 2008 (WA).
35 I do not accept those submissions. Firstly, as I have pointed out earlier, s 3E of the Crimes Act does not require that the information on oath be in the form of an affidavit. A failure to comply with the formal requirements of an affidavit does not mean that the information is not on oath within the meaning of s 3E. Secondly, all magistrates are Justices of the Peace pursuant to s 12(1)(e) of the Justices of the Peace Act 2004 (WA). A Justice of the Peace is an authorised witness pursuant to s 9(6). Thirdly, the fact that the affidavit does not comply with some of the formal requirements of s 9 is immaterial. Section 16(2) of the Oaths, Affidavits & Statutory Declarations Act provides that the validity of an affidavit is not affected by the fact that the required procedure for taking or making it is not followed exactly as long as the procedure actually followed substantially complies with the required procedure. In this case there is no doubt as to who swore the affidavit or before whom it was sworn. Nor is there any dispute as to what was included in the affidavit.
36 As to the suggestion that the magistrate could not act upon sworn information when the oath was administered by him, the submission of the accused is that this would place the magistrate in a difficult position as he could be called as a witness in regards to the taking of the oath. This submission appears to be based upon the fact that an experienced legal practitioner cannot act as an authorised witness if he or she has participated in any way in proceedings in which the affidavit is intended to be used: s 9(7). However, the exception does not refer to other types of authorised witness. Nor is there anything inherently inconsistent in a magistrate administering an oath to an applicant for a search warrant and then relying on the information provided under oath.
37 Furthermore, there is nothing in s 3E, either express or implied, to the effect that someone other than the issuing officer must administer the oath in respect of the information to be provided in support of the application. It is possible that in some cases an affidavit may be sworn before another authorised witness prior to the application being made. However the nature of such an application must envisage the possibility that even in such a case the issuing officer will require additional information before being satisfied that it is appropriate to issue the warrant. Given the nature of investigative proceedings and the urgency with which they may be attended the appropriate way in which such additional information would be provided would be orally and on the administration of an oath by the issuing officer. In my view whether or not any other statutory basis for a power to administer oaths by an issuing officer exists, s 3E necessarily implies the conferral of such a power.
38 In further written submissions counsel for the accused has presented a different, and contradictory argument. It is that the State Oaths Act is not applicable because this was an application for a warrant under federal legislation. It is submitted that the Evidence Act 1995 (Cth) s 186 sets out the requirements for affidavits used in federal proceedings and that Federal Court requirements for signing affidavits on each page were not complied with here.
39 This further submission must also be rejected. The requirements referred to relate to proceedings conducted in the Federal Court. The application to obtain the warrant was not proceedings in the Federal Court, indeed it was not in the nature of judicial proceedings at all. There being no applicable federal legislation, the State Oaths Act was not excluded from operation and neither does it operate to invalidate the affidavit or the warrant.
Was the date of the alleged offence a material error?
40 There can be no doubt that the date of 21 September 2011 in the third condition of the warrant was an error. However the significance of the date needs to be seen in the context of the warrant as a whole.
41 Section 3E does not require precise identification of the offence which is suspected of having been committed. This is consistent with the investigatory nature of a warrant. It is only necessary that the offence suspected be described in sufficient detail to define the boundaries of the authorised search.
42 Despite the wrong date the offences suspected in this case were adequately described. The other conditions in the warrant referred to the consignment number of the package delivered earlier on the day on which the warrant was executed. They also referred to the name and address of the intended recipient and the sender. In these circumstances there was no reasonable possibility that any person who read the whole of the warrant would doubt that it related to the package that had been delivered earlier that day.
43 The wrong date could not conceivably have misled the accused into thinking that the warrant related to an offence other than one relating to that package. The transcript of the search shows that there was no confusion on the part of the accused. Even if the accused had queried the lawfulness of the seizure of the items on the basis of the date referred to in the warrant it is clear that he would have been told that the date was merely a typographical error. In these circumstances the error has affected neither the validity, nor the fairness of the execution, of the warrant.
44 In any event the warrant referred to two offences. The second offence is said to be an attempt to possess the unlawfully imported commercial quantity of drugs. There is no date specifically included in the paragraph dealing with the second offence. It might be suggested that the date of 21 September 2011 should be read as applying to both suspected offences. However in the normal course the importation of a substance through the mail would occur at a point earlier in time than any attempt to possess it at the point of delivery. The lack of a date in respect of the second offence would not invalidate the warrant as that offence is described with sufficient particularity. Accordingly, even if the erroneous date of 21 September 2011 was material in respect of the first offence that paragraph could be severed without affecting the validity of the warrant.
45 Furthermore, the error in the date does not affect the validity of the warrant on its face. It is only by reference to extraneous material that the accused can assert that there is an error in respect of the date. On the hearing of this application counsel for the accused accepted that what she was submitting was that the items were not lawfully seized as they did not comply with this condition given the error in the date. That is, that a parcel delivered on 19 January 2012 could not meet the third condition as being something that would afford evidence of the commission of an offence on 21 September 2011. I do not accept that that is necessarily so. However, the lawfulness of the seizure of any particular item does not necessarily depend upon it meeting the three conditions contained in the warrant. The warrant also authorises the seizure of items that would provide evidence of the commission of other indictable offences pursuant to s 3F. Thus the items were lawfully seized whether or not they met the third condition.
Conclusion
46 The search warrant of 18 January 2012 is not invalid. The items seized and evidence obtained pursuant to that warrant were lawfully obtained pursuant to the warrant. The accused's submissions that the evidence was unlawfully obtained cannot be accepted. There is no occasion to exercise the discretion to admit unlawfully obtained evidence. The application to exclude the evidence obtained pursuant to the warrant is dismissed.
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