R v Thompson (No 3)
[2017] ACTSC 53
•7 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Thompson (No 3) |
Citation: | [2017] ACTSC 53 |
Hearing Date: | 29 September 2016 |
DecisionDate: Reasons Date: | 7 March 2017 17 March 2017 |
Before: | Refshauge J |
Decision: | 1. The undertaking of the Crown is noted, namely not to submit at the trial of the accused, Andrew Francis Thompson, for the offences of aggravated burglary and forcible confinement, that the letters seized during the search of the premises of the accused, Andrew Francis Thompson, on 5 November 2013 constituted an admission that he engaged in the conduct which constituted these offences. 2. The application by Application in Proceedings dated 2 September 2016 be dismissed. 3. The judge before whom the trial of Andrew Francis Thompson for offences of aggravated burglary and forcible confinement be requested to consider giving the jury an express direction that the letters referred to in Order 1 cannot constitute an admission to the commission of those offences. |
Catchwords: | EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Exclusion of improperly or illegally obtained evidence – probative value of evidence – importance of evidence in the proceedings – gravity of the impropriety – impropriety deliberate or reckless – difficulty in obtaining the evidence without impropriety – evidence in question not to be excluded – s 138 of the Evidence Act 2011 (ACT) EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Exclusion of prejudicial evidence – mandatory exclusion – issue raised in pre-trial application not addressed on appeal – unfair prejudice – directions recommended to trial judge to consider giving to the jury – evidence allowed to be submitted – s 137 of the Evidence Act 2011 (ACT) JURISDICTION, PRACTICE AND PROCEDURE – WARRANTS, ARRESTS, SEARCH, SEIZURE AND INCIDENTIAL POWERS – Search under the warrant invalid – time warrant is in force – specific decision required as to the period during which a warrant is to be in force ADMINISTRATIVE LAW – JUDICIAL REVIEW – Search and seizure – warrant – whether execution of warrant unlawful – warrant not in force when the search was conducted – falso demonstration quae non nocet – absence of the period of time warrant in force fatal – s 194(5) of the Crimes Act 1900 (ACT) |
Legislation Cited: | Court Procedures Act 2004 (ACT), ss 76(2), 76(3) Crimes Act 1900 (ACT), ss 194(5), 194(5)(e), 195, 195(1)-(2), 196, 197, 198(3)(c), 200(4), 240, Article 17 of the International Covenant on Civil and Political Rights |
Cases Cited: | Australian Securities and Investments Commission v Sigalla Bunning v Cross (1978) 141 CLR 54 |
Texts Cited: | Don Gifford, Statutory Interpretation (Law Book Co, 1990) R H Kersley, Brooms Legal Maxims (Sweet & Maxwell, 10th ed, 1939) Australian Law Reform Commission Evidence (ALRC, 1985) vol 1 |
Parties: | The Queen (Crown) Andrew Francis Thompson (Accused) |
Representation: | Counsel Mr G Brady SC (Crown) Mr A Williamson (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 50 of 2014 SCC 33 of 2016 |
REFSHAUGE J:
On 4 November 2013, the accused, Andrew Francis Thompson, was in the home of his former partner. As a result of what was alleged to have happened there, Mr Thompson was charged with an offence of aggravated burglary with intent to cause harm or threatening to cause harm and with an offence of forcible confinement.
The proceedings involving Mr Thompson have had a rather long history. He was tried by judge and jury for these offences, and on 8 December 2014, convicted of both offences. He was sentenced to terms of imprisonment on 20 March 2015.
He appealed against his convictions and, on 6 May 2016, his appeal was upheld: Thompson v The Queen [2016] ACTCA 12. A retrial was ordered.
Mr Thompson has now made application for the exclusion of certain evidence on the retrial.
The application
The application sought the following orders:
1.That the evidence obtained from the search warrant executed at [Redacted for legal reasons] on 5 November 2013 was obtained illegally or improperly and should not be admitted under section 138 of the Evidence Act 2011 (ACT). This evidence includes:
a. Any physical evidence obtained including two manuscript letters, referred to as the ‘suicide notes’ by the Crown, found in a built-in-wardrobe in one of the bedrooms.
2.Or in the alternative that pursuant to section 137 of the Evidence Act 2011 (ACT), the suicide notes seized during a search of the accused/applicant’s premises on 5 November 2013, be not admitted into evidence.
3.Any other orders that the Court considers appropriate.
On 7 March 2017, I dismissed the application. These are my reasons for doing so.
The facts
In order to understand the application, it is necessary to summarise the Crown’s allegations and the circumstances of the issue of the search warrant and the subsequent search. The following material comes from the Case Statement (see R v Goodwin [2009] ACTSC 111; 233 FLR 473 at 478-9; [26]-[35]), the submissions, an affidavit of Mr Thompson’s solicitor and oral evidence given by two police officers.
Mr Thompson and the complainant had been in a relationship which ended in about April 2013. They subsequently met on 9 October 2013 and had a verbal argument at the Dickson shops.
On 4 November 2013, Mr Thompson gained entry to the complainant’s residence when she was not there. He did not have the victim’s permission to be there. At the time, Mr Thompson was in possession of a firearm. The victim returned home shortly afterwards and entered her home.
The Crown says that, at the time, Mr Thompson was hiding and waiting for the complainant. After she came home, the complainant undressed and Mr Thompson then disclosed his presence and is said to have brandished a gun at her. He is said to have kept her in the residence for some time during which he threatened suicide and he also threatened to harm her.
Mr Thompson eventually released her and the complainant immediately went to a police station and reported the incident.
Police attended at Mr Thompson’s home and, while it is said he attempted to evade them, he was soon arrested and charged with the offences for which he faced trial.
Early the next day, police sought a search warrant for Mr Thompson’s residence. They arranged for a Magistrate to attend at City Police Station where his Honour signed and issued a search warrant for those premises.
The police then went to Mr Thompson’s residence and purported to execute the warrant. When doing so, they located a firearm and two hand written letters which appear to have been written by Mr Thompson.
The first was addressed to Mr Thompson’s parents and his younger brother, and the second to a friend of his. The most relevant and the one, the real subject of the application, is that written to Mr Thompson’s family. That letter is in the following terms:
Mum, Dad & Chris
If you’ve found this letter then I must have really fucked up. First let me say I’m so, so, sorry.
I’ve been really tired lately, tired of life.
I’ve hardly slept in weeks. I’ve been unhappy for years, I’ve tried it for so long. I just can’t deal with It [sic] anymore. All I wanted this year was some stability in my life. All that ended up happening was I became more anxious and depressed.
I have so many regrets. I just feel like I’m drowning all the time in my past. I hardly have anything to show since leaving school ([the victim] never let me forget this).
I have no idea why I turned out like this but is no way is it any fault of yours. I couldn’t have asked for a better family.
Why I did this. People will think I’m some sort of physco path [sic]. That it was some sort of lover’s revenge. That I just couldn’t let go. But that’s not the case.
When I saw [the victim] three weeks ago (it was actually dad’s birthday dinner when I went off. I’m disgusted in my self [sic] for doing it then) it was clear that there was no chance of their [sic] ever being anything between us. I was happy to accept it, even though I’d wanted it so much at some point.
It was the personal attack in public that was humiliating. And I just sat there and took it, I put up with so much of her problems and shit before she went overseas and for her to say the things she did[.] That day destroyed what little happiness I had left in my life.
She told me used me, she hated me, the whole time, and basically the only reason she kept seeing me was because I was there and did things for her. She said I was too simple for her and that I was boring. I was her doormat. I didn’t intend to harm her though, just for her to see how damaging breaking someone’s trust can be.
The letters were located in the built-in wardrobe in one of the bedrooms of Mr Thompson’s residence.
The search warrant issued by the Magistrate was in a standard form. In part, it said:
AUSTRALIAN CAPITAL TERRITORY
CRIMES ACT 1900: Section 194
SEARCH WARRANT FOR PREMISES OR PREMISES THAT ARE A CONVEYANCE
To: Scott Lindsay BURROWS
a police officer within the meaning of the Crimes Act 1900, who is the executing officer in relation to this warrant.
And to any other police officer whose name may be written on this warrant in accordance with section 194(5)(d) of the Crimes Act 1900, in which event that police officer shall be the executing officer in relation to this warrant:
Whereas I am satisfied by information on oath that there are reasonable grounds for suspecting that there is at the following premises:
[Redacted for legal reasons]
Evidential material which satisfies the following two conditions:
First condition: Things which are
1 x firearm described as 40-50cms in length, tan handle and a grey metal part on the front.
1 x pair of latex gloves
Second condition: For all things there must be reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences against the law of the Australian Capital Territory:
Section 312(b) of the ACT Criminal Code 2002 – Aggravated Burglary.
I hereby issue this warrant which authorises you to enter and search the premises or conveyance described above.
The warrant then sets out a summary of certain relevant provisions of the Crimes Act 1900 (ACT), including s 195, which identifies some of the acts of the police that it authorises, the obligations under s 240 and also the provisions of ss 196 and 200(4). It then continued:
The offences to which this warrant relates are those specified above in the second condition.
Whereas [I] am satisfied that it is necessary to do so to prevent the concealment, loss or destruction of evidence, this warrant may be executed at any time.
This warrant comes into force at the time it is signed and will cease to have effect at the start of the 5th day of N [presumably November] 2013.
Given under my hand at Canberra in the Australian Capital Territory this 5th day of November 2013.
At: 0612 (time)
Name: Robert Cook
Signature: [signature of Magistrate Cook]
A Magistrate in and for the Australian Capital Territory (or other title)
Who is an issuing officer within the meaning of the Crimes Act 1900.
As can be seen, the search warrant could not effectively be executed because it was issued on 5 November 2013, but ceased to have effect “at the start of” that very day.
The police officer who applied for the warrant gave evidence. He had sworn an affidavit in support of the application for the warrant. As was appropriate in the circumstances, that affidavit was not in evidence. He confirmed that the Magistrate came into the police station early on the morning of 5 November 2013 and issued the warrant.
The police officer said that he was not aware of the error in the warrant at the time it was made, but had subsequently become aware of it. He said that if he had become aware of the error, he would have approached the Magistrate and asked for the error to be corrected. He was not involved in the search.
He said that he had read the warrant but not read it after the Magistrate had signed it because he “took it for granted that his Honour had signed it correctly and in the appropriate area”. He confirmed his oversight in not checking it. He assumed that, in accordance with standard practice and, as permitted by s 194(5)(e) of the Crimes Act, it had been issued to be in force for seven days. He admitted that he now accepted that it was important to check such matters.
The police officer who oversaw the execution of the warrant also gave evidence. He also became aware of the problem with the warrant, but not until after it had been purportedly executed. He said that, if he had detected the error, he “would have made arrangements to ... make the correct amendments to it and then subsequently execute it”.
He accepted that it was important to have a valid warrant before searching someone’s premises in purported reliance on such a warrant. He did, however, read the warrant before purportedly executing it. He accepted that he did not read it carefully enough.
He noted that Mr Thompson did attend at his residence after he called him. It was not apparent on the evidence, however, as to whether Mr Thompson arrived before or after the purported execution of the warrant had commenced, though I could infer that it seems that it was the former.
Of course, if so, s 197 of the Crimes Act required a copy of the warrant to be made available to Mr Thompson. See Constructions, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 362; 305 FLR 143 at 173-5; [164]-[185] (CFMEU v AFP).
There is no requirement for Mr Thompson to read the warrant, though often police do get the occupant to read at least part of it out loud: CFMEU v AFP at 149; [39]. They usually also give the occupant a copy. As I said in CFMEU v AFP at 173; [167], there are sound policy reasons for an occupant to have a copy in her or his hands as soon as possible. To the matters I there mentioned in support of such policy reasons, this case shows that it should be added that the occupant then has the opportunity to ensure that the warrant is in force and addressed to, for example, the correct premises and so on.
The police officer conceded that he could have read the warrant with a lack of care. I note that, had Mr Thompson also read it, he did not notice the error, but I did not have any evidence of this.
The issues
There were two issues to be determined on the application:
1. Was the search under the warrant invalid and, if so, were the letters not admissible as the product of an illegal search?
2. Were the letters inadmissible under s 137 of the Evidence Act 2011 (ACT) because the probative value of them was outweighed by the danger of unfair prejudice?
I shall deal with each of these arguments in turn.
Validity of the search
A search warrant authorises a significant intrusion into the privacy of citizens which, in general terms, the law protects. As I remarked in CFMEU v AFP at 146; [3]:
To describe that process is sufficient to explain why, in a society such as Australia, this power is regulated carefully and compliance with the relevant regulation is important and to be appropriately enforced. The balance between the proper investigation of crime and the rights of individuals and entities is struck by the legislature in the conditions provided for obtaining and then executing such a warrant.
The result of the way the Magistrate completed the warrant meant that it did not, in fact, authorise the search.
The principle is set out authoritatively in George v Rockett (1990) 170 CLR 104 at 110-1, where a unanimous Court said:
A search warrant thus authorizes [sic] an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property ...
State and Commonwealth statutes have made many exceptions to the common law position ... Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize [sic] the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
While the warrant as signed by the Magistrate is bizarre as it ceased at the start of the day it was issued, the fact is that it thereby did not actually authorise the search. It is no answer to say that the Magistrate must have intended that it have some operation and, at least arguably, for the day on which it was issued. The validity of such a document cannot be ascertained by the intention of the maker. That proposition only has to be stated to show it is true.
That the error was obvious and almost certainly a mistake does not render an invalid search warrant into a valid one.
That is not to say that some typographical errors may not be held to invalidate a warrant. For example, a mistyping of some of the summary of the statutory provisions may not do so. That may, however, depend on the circumstances. In any event, I do not have to decide such a question. The fact is that the time during which the warrant is in force is a fundamental fact that goes directly to its validity.
I note that s 194(5) of the Crimes Act provides:
(5) A warrant shall include statements of the following matters:
(a) the offence to which the warrant relates;
(b) a description of the warrant premises, or the name or description of the person to whom it relates;
(c) the kinds of evidential material that are to be searched for under the warrant;
(d) the name of the police officer who is to be responsible for executing the warrant (unless he or she inserts in the warrant the name of another police officer);
(e) the period, not exceeding 7 days, that the warrant remains in force;
(f) subject to subsection (9), the times when the search is authorised.
The Crown submitted that the proper interpretation of this provision is that since the irregularity here was relatively trivial in nature, something like a typographical error (though not produced by printing or typography) and related to an innocent oversight, it did not purport to authorise the police to engage in conduct which the enabling statute did not contemplate or permit. Thus, the warrant was not invalid.
The Crown relied on what the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9; [91]:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
The Court went on to say:
Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
(footnote omitted)
The Court then said at 390-1; [93]:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.
(footnotes omitted)
On the other hand, Kirby J, said in Ousley v The Queen (1997) 192 CLR 69 at 144:
If the law is clear, and authorises what has been done, it is not the function of the courts to frustrate the will of Parliament simply because a judge may consider that the power given to officials is excessive. Courts recognise that modern criminality needs to be combated with the use of modern technology and, occasionally, the enlargement of powers beyond those traditionally enjoyed by police and other officials. Nor should judges be ‘over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because [they] are out of sympathy with the policy to which the Act appears to give effect’. This said, the approach of strictness requires, for the protection of the fundamental rights involved, that a court should not be overly astute to sustain a warrant which, on its face, reveals relevant defects. Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them. But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected.
There is nothing new in this approach. It is well established in this country, in England, and in other countries of the common law, and for the same basic reasons. It is well known to police and other officials who propound warrants for authorisation. Its strictures encourage a properly vigilant exercise of the power conferred on those permitted by law to issue warrants. Any other approach by the law would encourage an attitude of mind on the part of those who seek, and those who grant, warrants which has been repeatedly and firmly rejected by this Court and by other courts of high authority.
(footnotes omitted)
I also note that s 146(2) of the Legislation Act 2001 (ACT), provides:
(2)In an Act or statutory instrument, the word “must”, or a similar term, used in relation to a function indicates that the function is required to be exercised.
At common law, the use of “shall” is generally regarded as requiring the function to which it relates to be performed: Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655 at 690, 698; Director ofPublic Prosecutions(ACT) v Hiep (1998) 86 FCR 33 at 40. Thus, it would appear that “shall” falls within the notion of “or a similar term” to “must” for the purposes of the sub-section.
Indeed, the sub-section may have been inserted in response to the criticism of the uncertainty of the meaning of “shall” as explained in Hatton v Beaumont (1977) 2 NSWLR 211 at 222 and similar cases. As Don Gifford, in Statutory Interpretation (Law Book Co, 1990) at 197, pointed out:
It would, of course, be desirable for Parliament to make it plain in respect of each provision whether it is to be treated as mandatory or directory, but most of the cases coming before the courts are naturally those in which the language used by Parliament has failed to resolve the question.
This uncertainty may be exactly what the sub-section was intended to resolve. That would mean that the requirements of s 194(5) of the Crimes Act were mandatory, that is, non-compliance would lead to invalidity.
In fact, it seems clear that a number of the statutory requirements such as those in s 194(5) of the Crimes Act are requirements, the absence of which have been held to render the warrant to be invalid.
For example, in Wright v Queensland Police Service [2002] QSC 46; 2 Qd R 667 at 678; [40], it was held that the absence of specification of the offence or particulars of the offence rendered the warrant invalid. There is some leniency to be afforded in this situation, of course. See New South Wales v Corbett [2007] HCA 32; 230 CLR 606.
In R v Atkinson [1976] Crim LR 307, the mis-description of the warrant premises was held to invalidate the search.
Finally, I note that the Crimes Act refers in a number of places to the need for the warrant to be “in force”, making it clear in the Act as a whole that this is an important issue. See, for example, ss 195(1)-(2), 198(3)(c) of the Crimes Act.
Section 194(5)(e) of the Crimes Act also requires the Magistrate to make a specific decision as to the period in which the warrant is to remain in force. It is not to be assumed that all warrants will be issued for seven days, though that may be a regular practice.
In my view, the specification of the time during which the warrant is to be in force is a key specification in the warrant and without it renders the warrant invalid. Thus, it would appear that the warrant was invalid for it did not, in fact, specify any meaningful period when it was in force. Alternatively, there was no period when it was actually in force.
By the same reasoning, there can be no imputation of a time if the Magistrate has not, by her or his action, actually specified a time in the exercise of the discretion reposed in her or him. This is a matter of discretion and the manner of the exercise cannot be assumed.
In any event, under no interpretation of the warrant was the search conducted during the period when it could properly be regarded as in force. There just was no such time.
There is no doubt that execution under a warrant that is not in force is an unlawful execution: R v Applebee (1995) 79 A Crim R 554. Similarly, execution under an invalid warrant would also be an unlawful execution.
The Crown sought to argue that the principle encapsulated in the maxim falsa demonstratio quae non nocet may apply to validate this warrant.
This is based on a comment made in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 195, when the Full Court suggested:
The falsa demonstratio principle (cf Wingadee Shire Council v Willis (1910) 11 CLR 123 at 131, 139-140, 144 and 147-148) may be available to overcome some slips in warrants.
The doctrine has been explained in R H Kersley, Brooms Legal Maxims (Sweet & Maxwell, 10th ed, 1939) at 426-7, as follows:
Falsa demonstratio means an erroneous description of a person or a thing in a written instrument; and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise.
In Wingadee Shire Council v Willis (1910) 11 CLR 123, what was at issue was explained by Griffith CJ at 131 as follows:
The notice in question, which was served on 28th September 1907, stated that at the expiration of 30 days from service the amount of the rates would be due and payable, and added: ‘The day on which such rates will be due and payable will therefore be 28th October 1907.’ This, it is said, was wrong, since they were not payable till the 29th.
In that case, it was held that the incorrect date did not invalidate the notice because “the preceding part of the notice ... was a sufficient compliance with the statute”.
This is not the situation here. There is no indication of the period that the Magistrate intended that the warrant be in force. That absence is fatal to the argument in this case: R v Maurice; Ex parte Attorney-General (NT) (1986) 72 ALR 231 at 238.
The doctrine expressed in the maxim may, as the Federal Court has opined, validate certain slips in warrants. That may, however, not be so and the Federal Court did not definitively so find. See, for example, the need in New South Wales v Corbett at 614; [32], to find a transitional provision which validated a warrant where the offence specified was in a repealed Act, rather than just read the offence into the warrant, as the falsa demonstratio principle would apparently have required.
In any event, the reference to the maxim by the Full Court of the Federal Court in Flanagan v Commissioner of Police really related in the context of the judgment to the authority for making an amendment to the warrant. See, for example, the reference to the slip rule at 194 and, at 195, the reference to the power to issue a warrant carrying with it the power to overcome clerical mistakes and accidental slips. That, however, requires actual amendment to the document rather than an interpretation of the words in the document. That seems to me to be a fair reading of what their Honours were discussing. In this case, of course, there was no amendment made.
In my view, the warrant was not in force when the search was conducted purportedly in execution of the warrant, either through invalidity or because the time during which it could have been in force had expired.
In consequence, under s 138 of the Evidence Act, the items seized in the search, particularly the letters, were inadmissible as evidence in the trial. That inadmissibility is not absolute. The section relevantly 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.
...
(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.
This is a statutory recognition of the balancing that the courts have accepted is necessary in cases where important evidence has been obtained by improper means.
As Barwick CJ explained in R v Ireland (1970) 126 CLR 321 at 335:
On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
In order to determine the exercise of the discretion, it is necessary first to consider at least the matters referred to in s 138(3) of the Evidence Act and I will do so.
(a) Probative value
Mr Thompson concedes that the letters have “real probative value”. The Crown puts it somewhat higher, submitting that they have “extremely high probative value”. In part, this is said to be supported by the written submission of the Crown that the letter to Mr Thompson’s family “contains an admission to the alleged offending”. That cannot be so, for it is accepted that the letter was written at least five days and possibly much longer prior to the alleged offending. As such, it cannot be an admission to alleged offending. One cannot admit to doing or having done that which has not been done. The Crown, by its undertaking, accepts this. I refer to the undertaking below (at [129]).
Such letters may, and, indeed, arguably do, provide an expression of intention or, perhaps, as the Crown also submits, “a motive”. That would, as conceded by Mr Thompson, provide real, perhaps even significant, probative value to the letters. I accept this. That favours the admission of the evidence.
In assessing the probative value of evidence, of course, I interpret the term as explained in IMM v The Queen [2016] HCA 14; 257 CLR 300.
(b) The importance of the evidence in the proceedings
Again, Mr Thompson concedes the importance of the evidence. Where there is little or no corroboration for the evidence of the complainant, such as from other witnesses or forensic evidence, the letters expressing an intention or motive may be found by a properly instructed jury to provide support or corroboration. This favours the admission of the evidence.
(c) The nature of the offence
Mr Thompson is charged with serious offences: the offence of aggravated burglary is punishable by a fine of $300 000 and 20 years imprisonment; the offence of forcible confinement is punishable by imprisonment for 10 years. These statutory penalties mark out the seriousness of the offences: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [31]. Again, Mr Thompson conceded the seriousness of the offences. The greater gravity of a crime, the greater the public interest in its prosecution: R v MM [2004] NSWCCA 364 at [54]. I note, too, that the crimes are not victimless crimes, but have a clear victim, a relevant consideration in relation to this factor.
In addition, there were no trivial, nor inconsequential or even less serious versions of each offence. The nature of the offence is a factor in favour of exclusion of the evidence.
(d) The gravity of the impropriety
The impropriety was serious. The invasion of a person’s home without a warrant for the purpose of seizing items that are not liable to be seized is at least a trespass if not a burglary. While a trespass is not a very serious offence, the forceful invasion of a home by an agent of the State is clearly a serious matter: Semayne’s Case (1604) 5 Co Rep 91a at 91b; 77 ER 194 at 195-6; Entick v Carrington (1765) 2 Wils KB 275 at 291; 95 ER 807 at 817-8; Southam v Smout [1964] 1 QB 308 at 320.
In one respect, the trespass constituted by the unlawful search was said by the Crown to be less serious: in the Territory the offence of trespass is punishable under s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) with a maximum penalty of a fine of $3600. On the other hand, however, it is a breach of a fundamental right to privacy and other rights and freedoms, the breach of which may, at least, aggravate the trespass: R v Central Criminal Court; Ex parte Bright [2001] 1 WLR 662 at 680. See also Re Lee [2009] ACTSC 98; 212 A Crim R 442 at 456; [68].
In addition to any criminal penalty, a trespass can result in an action for damages: Gibbs v Rea [1998] AC 786. That is so even if no harm is actually caused. See Kaney v Rushton [2017] ACTSC 11 at [21].
This factor tends towards the exclusion of the evidence.
(e) Whether the impropriety was deliberate or reckless
The evidence shows that the actions of the police officers may have fallen short of what is required but were certainly not deliberate. Of course, it is important for a police officer to be as reasonably certain as she or he can be as to the authority to undertake such actions, which would require the officer to read the warrant and note the important matters, such as when the warrant could or could not be executed. Where it was intended to execute the warrant on the day that it was issued, however, I do not consider that the failure to check precisely the period that it was to be in force was reckless. See Helmhout [2001] NSWCCA 372; 125 A Crim R 257 at 262-3; [33] for the assessment of recklessness in this context.
Where a breach is made in good faith or is an innocent mistake, it is unlikely that the evidence should be excluded: R v Camilleri [2007] NSWCCA 36; 68 NSWLR 720 at 727; [35]. See also R v Hoang [2015] ACTSC 17; 248 A Crim R 282 at 299; [103].
This factor favours the admission of the evidence.
(f) Whether the impropriety was a contravention of the International Covenant on Civil and Political Rights
Clearly an invasion of Mr Thompson’s home without legal authorisation is a breach of Article 17 of the International Covenant on Civil and Political Rights. This is so even if the invasion is without notice: Keegan v United Kingdom (2007) 44 EHRR 33. This is a serious consideration in favour of excluding the evidence. The right must not be ignored: Hibble v B [2012] TASSC 59; 225 A Crim R 494 at 508; [76]. Though little attention is often given to this factor, that does not render it irrelevant: R v Borg [2012] SC 26; 220 A Crim R 522 at 546; [99]-[100]. This factor favours the exclusion of the evidence.
(g) Whether other proceedings are likely to be taken in relation to the impropriety.
If, for example, disciplinary proceedings are taken against investigators who obtain evidence illegally, the Court may have less need to express its disapproval of the impropriety, though this may not be regarded as an entirely satisfactory justification: Parker v Comptroller-General of Customs [2007] NSWCA 348; 232 FLR 362 at 381; [65].
The Crown’s submissions seemed to miss the point by suggesting that it would be “futile” to take disciplinary action against police for acting in good faith in the technical mistake of a police officer. This ignores the responsibility of the police officer to ensure that she or he has the correct authority. It does not require her or him to second-guess a judicial officer, but the error here was patent, it was in part of the warrant that was not pre-typed and it was essential for the police officer to understand the extent of her or his power that could be identified by simply looking at the warrant closely and carefully. That is the error.
Nevertheless, in this case, this matter was not of particular concern. This factor seems to me to be relatively neutral. While no disciplinary action has been taken, the error was clearly one of some embarrassment to the police officers who gave evidence and who are unlikely to make such an error again.
(h) Where there was difficulty in obtaining the evidence without impropriety
It is said that this factor will often be “either neutral or equivocal”: Parker v Comptroller-General of Customs at 380; [61].
Where, for example, the impropriety involves a “technical breach”, it would ordinarily mean that the evidence could have been properly or lawfully obtained in any event such that the undesirability of admitting the evidence would be low: Australian Securities and Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327 at 362; [128]. On the other hand, it was pointed out in that case that where the evidence was reasonably easily obtainable, this may be a factor for excluding it if no real effort has been made to comply with the legal requirements. Thus, Stephen and Aicken JJ held in Bunning v Cross (1978) 141 CLR 54 at 79 that a deliberate cutting of corners would justify exclusion of evidence.
That, however, was not an approach that was favoured by Lasry J in R v Borg at 548; [108]. An analysis of these cases suggests that the relevance of this factor may depend to some extent on factor (e), namely whether the impropriety was deliberate or not. If the evidence could easily have been properly obtained, but the impropriety was deliberate, then this has the colour of “cutting corners” which tends against admitting the evidence.
If, however, the evidence could not have been obtained properly, it would appear that it should ordinarily be excluded. It is not so clear what the answer is when it could have been obtained but not easily. This may also be the case where the deliberate or reckless breach may justify exclusion. I do not have to decide that here.
On the whole, the good faith of the investigators here and the relative ease of compliance tends to point in favour of admitting the evidence: R v Gallagher [2015] NSWCCA 228 at [48].
Conclusion
Taking all these matters into account, I am of the view that the evidence should not be excluded under s 138 of the Evidence Act. While the argument addresses the letters, the gun was also seized in the unlawful search. It was clearly an item of evidence of high probative value and subject to the trial judge permitting express argument about it, the gun seems to me to fall into the same category and should not be excluded.
Mandatory exclusion
Section 137 of the Evidence Act requires exclusion if the probative value of the evidence exceeds its unfair prejudice. Mr Thompson says that this is the situation here and that the evidence of the letters should be excluded under this section, notwithstanding my finding for the purposes of s 138 of that Act.
What is important, however, is that a similar application for exclusion of the letters under s 137 of the Evidence Act was made in 2014 and refused: R v Thompson [2014] ACTSC 276. That application was made on the basis that there was a significant time gap between the date on which the letters were made and the date on which the offences are alleged to have occurred: R v Thompson at [21]. It was also suggested that there was a risk of the jury engaging in false tendency reasoning to the effect that a person who wanted to commit suicide was a person of bad and dubious character and so would be capable of committing these offences: R v Thompson at [23]. At [24], these arguments were rejected as follows:
24.First, I do not accept that the general community regards an inclination to commit suicide as evidence of bad character or regards a person who is prepared to commit suicide as being more likely to physically harm someone else. Second, it is not the Crown case that the notes evidence a desire to physically attack or harm the complainant. The note to the accused’s parents says, “I didn’t intend to harm her”. On the other hand, the Crown says that the notes provide strong evidence of an intention to cause psychological harm.
In that case, the application for exclusion of the evidence was dismissed. That was a ruling made before the jury in that trial had been empanelled. Nevertheless, the application here was pursued and on a different basis. The Crown opposed the application.
Neither party addressed the effect of s 76(2) and (3) of the Court Procedures Act 2004 (ACT), which provide:
(2) Any orders, rulings or directions that may be made by the Supreme Court for the purposes of a trial for an indictable offence may be made before -
(a) if the tribunal of fact for the trial is a jury - the jury is empanelled; or
(b)if the tribunal of fact for the trial is a judge alone - the judge starts hearing evidence to determine the guilt or innocence of the accused person.
(3) An order, ruling or direction of the Supreme Court under subsection (2) is binding on the trial judge at the hearing of the trial unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding.
It may be unclear as to whether that pre-trial application, though made prior to the first trial, is to be regarded as being a pre-trial application in respect of this trial or whether it was, for the purposes of the section, only to be regarded as being a pre-trial application for the earlier trial. That trial, by virtue of the decision on the appeal, had been set aside and the trial could be of no effect. The earlier trial may be a nullity or at least no trial at all as explained by Windeyer J in R v Lee (1895) 11 WN (NSW) 121 at 123. See also R v Fowler and Sexton (1821) 4 B&Ald 272 at 275-6; 106 ER 937 at 939.
Of course, as in this case, the same indictment will often provide the jurisdiction to conduct the new trial.
There are countervailing considerations. Clearly, if the appeal had addressed the issue in the pre-trial application, that would have resolved the question: it would have either been confirmed or set aside.
In the event, as here, the issue raised in the pre-trial application was not addressed on the appeal, it may be argued that the ruling remains as a pre-trial application for any subsequent trial, at least for the purposes of s 76 of the Court Procedures Rules. It may be argued, on the other hand, that the pre-trial application was effectively part of the trial which had been set aside.
In Queensland, in considering similar legislation, it was held in R v Sheehy [2003] QCA 420; [2005] 1 Qd R 418 that, unless re-opened in accordance with the section, a ruling made before a first trial where the jury were discharged remained binding at the re-trial. Of the two judges who decided the issue, one depended in part on the words of the Jury Act 1995 (Qld): R v Sheehy at 420; [5]. The other judge considered the section to refer to “the trial of the accused in respect of the offences charged in the indictment” and was not to be construed as meaning “the first trial to commence after the giving of any such direction or ruling”. The third judge did not address the issue.
That is not strictly the position before me because I am not the trial judge. That raises, however, other issues.
In R v Handlen [2012] QSC 317, Dalton J was asked to consider a pre-trial application where the convictions of the accused at their first trial had been set aside by the High Court and a re-trial ordered. The Crown presented a fresh indictment for the trial.
His Honour referred to R v Steindl [2001] QCA 434; [2002] 2 Qd R 542, where the first trial, which was preceded by a pre-trial ruling, was ended by entry of a nolle prosequi but later a second indictment presented and, at the trial of that indictment, the pre-trial ruling was sought to be challenged and the trial judge felt bound only to permit it if the conditions in the section were satisfied. The Court of Appeal did not consider the correctness of the approach.
In R v Handlen, there had been a pre-trial application made before the first trial and dismissed. Dalton J was asked to consider an identical application in a pre-trial application before the second trial. His Honour did not address the question of whether the upholding of the appeal had had any effect on the status of the earlier pre-trial application. After all, a trial judge, in a re-trial, is not bound by rulings or findings made by a trial judge during a first trial.
His Honour held that, as he was not to be the trial judge at the re-trial, the terms of the section, relevantly similar to s 76(3) of the Court Procedures Act but with a test of “for special reason” instead of “the interests of justice”, did not apply to him. That is the position here; I am not the trial judge and so the section is not directly applicable to me.
His Honour, however, considered at [7], that the first application had determined the law as it applied to the facts of the matter at the pre-trial hearing and the decision was, therefore, final as between the parties unless overturned by the trial judge. The parties were, of course, the same.
His Honour was critical of the attempt to re-litigate the matter, though acknowledged that he was bound by the High Court’s decision in Rogers v The Queen (1994) 181 CLR 251, that the principle of issue estoppel, does not apply to the criminal law. See also R v Storey (1978) 140 CLR 364 at 380. Nevertheless, public policy considerations apply and do not generally permit re-litigation of decided matters.
In the case of R v Handlen, Dalton J then held that the bringing of an identical application was an abuse of process and rejected it.
In this case, Mr Thompson made a different and substantial challenge first to the search, which had not earlier been considered but then to the admission of the evidence of the letters, though on different grounds to those argued in the first application. He submitted that they were unfairly prejudicial because they may be incorrectly read by the jury as admissions, not a matter agitated in the earlier pre-trial ruling.
As a result, I do not have to decide whether s 76(3) of the Court Procedures Act applies because either it does not apply to me, in which case I only need to decide the question of whether the Court should refuse to revisit the earlier decision, or because, given the new and significant argument made, it is in the interest of justice for the ruling to be re-considered. I do consider, however, that, on the basis of the authorities I have cited, s 76(3) does apply to an earlier pre-trial application before a first trial in relation to a re-trial, both after appeal or after the jury of a first trial have been discharged.
While I accept the undesirability of re-litigating decided matters, I do not consider that Mr Thompson’s application is, in the particular circumstances of this case, an abuse of process.
Mr G Brady SC, who appeared for Mr Thompson, submitted that the likelihood that the letters would be seen by the jury to be admissions was clear because, in fact, the Crown prosecutor in the first trial had actually made submissions to that effect.
The Crown Prosecutor said at the first trial:
By early October [he was] still not over her. You know what, you might very rightly feel sorry for him. Look at the words he wrote:
It was the personal attack in public that was humiliating, and I just sat there and took it. I put up with so much of her problems and her shit before she went away, and for her to say the things that she did that day destroyed what little happiness I had left in my life. She told me she used me, she hated me the whole time, and basically the only reason she kept seeing me was because I was there and I did things for her. She said I was too simple for her and I was boring. I was her doormat.
Her doormat, according to the letter at least, happiness destroyed, publicly humiliated and so hung up on her that even by his own evidence he says that he went over there on 4 November still with this hope that things might change, still clinging on. Then if you look at that letter he writes words which I say can’t be misinterpreted, words that I say are crystal clear:
I didn’t intend to harm her, though, just for her to see how damaging breaking someone’s trust can be.
I say, ladies and gentlemen, that those are the words referring directly to the offences with which the accused is charged. Now, he says they were written earlier. Maybe they were. Although, on his version I note the timing doesn’t add up, it doesn’t come close. Three weeks from 9 October is not 21 October. But say that you do accept that they were written on 21 October, well, what does that show? Now, you’ve heard his evidence as to what his state of mind was when he wrote those words, and it’s evidence that I say you would not accept.
...
Think about the words, ‘I didn’t intend to harm her.’ Now, use your commonsense here. Why would those words appear, why would they appear unless it looked to the outside observer that he did intend to harm her? What would give anyone such an impression that it needed to be explained away? The Crown says you know what would give someone that impression, taking a firearm to [the complainant’s] house, that’s what.
...
You see, there can only be one thing I say that he’s referring to in that passage, and that is going to [the complainant’s] apartment with the gun wearing his latex gloves. These suicide notes are powerful evidence. They’re evidence which is clear. It’s not ambiguous evidence. So look at them and have a good think about them when you go to the jury room to deliberate.
It is not entirely clear, for the Crown prosecutor also referred in the passages cited above to “intention”, but the wording of the address to the jury was sufficient to justify the submission of Mr Brady SC that the jury may have understood that it was being asked to read them as admissions of the conduct constituting the offences.
An admission is defined in the Dictionary to the Evidence Act as follows:
admission means a previous representation that is:
(a) Made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) Adverse to the person’s interest in the outcome of the proceeding.
This is, however, not helpful in this context. The parties agreed that the letters were both written before 4 November 2013, that is before the conduct occurred, which the Crown said constituted the offences charged, though they disagreed as to the precise date when they actually were written.
It seems to me that to take what is said in the letters, written before the conduct, as an admission by Mr Thompson of the conduct is an illogicality.
One may admit to having an intention to carry out certain conduct in the future, but that is evidence of the intention, not of engaging in the conduct. An admission is an acknowledgement of the existence or truth of some matter. Where that matter is the occurrence of some conduct, it is not possible to acknowledge that the conduct has occurred until after it has occurred.
It seems to me that this is relatively basic logic and is easily comprehended by persons who might constitute a jury
Unfair prejudice
It is trite that all evidence that the Crown seeks to adduce is prejudicial to an accused; it is intended to persuade the jury that the accused should be convicted of the crime: Director of Public Prosecutions v Lynch [2006] TASSC 89; 16 Tas R 49 at 57; [20].
It is also well known that the concept of unfair prejudice as used in s 131 of the Evidence Act relates to the misuse of the probative value of the evidence. In explaining the concept, the Australian Law Reform Commission Evidence (ALRC, 1985) vol 1 at 529; [957], explained that unfair prejudice:
does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight that it should have.
As the High Court said in Festa v The Queen [2001] HCA 72; 208 CLR 593 at 609-10; [51]:
[E]vidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
It can be accepted that, were the jury to read the letters as an admission of the occurrence of the conduct that was subsequently engaged in by Mr Thompson, then this would be unfair. It would, however, not be unfair if the jury were to accept the statements in them as an expression of either intention or, indeed, motive. In these latter contexts, it is, as is accepted, powerful evidence with considerable probative value.
One difficulty in the reception of the evidence is that Mr Thompson used the past tense: “I didn’t intend to harm her”. It is not clear to what that is a reference, but it clearly cannot be a reference to events that have not yet happened.
In order to determine the danger of unfair prejudice to an accused person, the Court must consider whether directions of a trial judge can mitigate or remove the danger. Appropriate directions can address this, though the possibility of directions is not a panacea – sometimes directions cannot redress the difficulties created by the admission of the evidence: Donai v The Queen [2011] NSWCCA 173 at [68].
Consideration
I accept that the use by a jury of the letters as an admission by Mr Thompson that he engaged in the conduct that constituted the offences would be an unfair use of that evidence.
I further accept that the approach of the Crown prosecutor in the first trial had the capacity to leave the jury with the impression that they were admissions.
I also accept, however, that a jury properly instructed would be well able to understand that, however much such evidence might be an expression of intention, it cannot constitute an admission of conduct that has not occurred. Were that not so, there would be a risk that most expressions of intention could be so misused.
The issue of this misuse was clearly appreciated by the Crown prosecutor, Mr A Williamson, who appeared before me and offered an undertaking
I can tell your Honour that I will be the trial Crown. I can undertake that I will not be inviting the jury to use it in that manner and I would join in any submission or application my friend makes for judicial comment or direction to the jury that it shouldn’t be used in that manner.
Though the term Mr Williamson used was “can give”, I took that it was an undertaking that he was then offering and I accept it as such.
In my view, a direction given clearly that the letters are not admissions of conduct that has not yet happened, because that cannot logically be, is a direction that a jury would understand and does not admit of complexity, so ambiguity or vagueness that would moderate any effect it may have on the mitigation of the risk of unfair prejudice.
The criminal justice system proceeds, and must proceed, on the basis that juries are capable of understanding and do comply with directions, even complex directions: Gilbert v The Queen (2000) 201 CLR 414 at 425; [31].
The risk seen by Mr Thompson is, in part, because even the expression of intention in this case is highly probative of the offences. It is necessary for the Court to try carefully to separate that probative value from the unfair prejudice and ensure that the obligation under s 137 of the Evidence Act is respected and that I comply with it.
I have given anxious thought to this matter. I consider that the logical position is sufficiently clear that a jury is capable of understanding it and complying with it, notwithstanding some risk of possible misuse. The undertaking by the Crown will assist this and the parties will be sufficiently alive to the issues that, were there to be any inference to the contrary of this position, they can take such action, as making appropriate submissions or requesting appropriate directions or the like.
For these reasons, I consider that I should not refuse to admit the evidence under s 137 of the Evidence Act.
Disposition
For these reasons, I dismissed Mr Thompson’s application to have the evidence of the letters seized in the search purportedly under warrant on 5 November 2015.
Importantly, however, I noted the undertaking given by counsel and I expressly draw to the attention of the trial judge the need to consider an appropriate direction.
| I certify that the preceding one hundred and thirty-seven [137] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 17 March 2017 |
4
38
7