Slater (a Pseudonym) v The Queen
[2019] VSCA 213
•26 September 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0032
| JODIE SLATER (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | McLEISH and WEINBERG JJA and TINNEY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2019 |
| DATE OF JUDGMENT: | 26 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 213 |
| RULING APPEALED FROM: | Director of Public Prosecutions v [Slater] (Unreported, County Court of Victoria, Judge Lyon, 11 February 2019) |
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CRIMINAL LAW – Interlocutory appeal – Exclusion of improperly or illegally obtained evidence – Evidence Act 2008 s 138 – Vehicle driven by applicant’s partner illegally searched – Evidence of search and evidence subsequently obtained against partner ruled inadmissible in proceeding against partner – Telephone calls while partner in custody bringing applicant to attention of police – Search warrant lawfully executed at home of applicant and partner several months after illegal search of vehicle – Investigations into applicant and partner closely entangled – Evidence against applicant obtained at home obtained in consequence of contravention of law – Judge held desirability of admitting evidence outweighed undesirability of admitting evidence obtained in consequence of contravention of law – Whether House v The King (1936) 55 CLR 499 applies to appeal on balancing under s 138 – Whether judge erred in concluding causal link attenuated by remoteness of illegal search from obtaining of evidence – Whether judge erred in treating as irrelevant alleged police attempt to conceal consequences of impropriety or contravention – Tasmania v Crane (2004) 148 A Crim R 346, R v Hunt (2014) 286 FLR 59, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis QC with Mr M P Allen | Galbally & O’Bryan |
| For the Crown | Mr M Gibson QC with Mr Y Hardjadibrata | Mr J Cain, Solicitor for Public Prosecutions |
McLEISH JA
WEINBERG JA
TINNEY AJA:
On 11 January 2014, police intercepted a vehicle being driven by George Brown[1] on the Nepean Highway. They ascertained that Brown’s driver’s licence was suspended and that he had a prior conviction for driving while suspended. He was arrested and told that his vehicle would be impounded under s 84F of the Road Safety Act 1986.
[1]To avoid prejudice to the pending trial of the applicant, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and her partner.
The vehicle needed to be moved to the service lane. This was done by one of the arresting officers, Constable Griffiths. While paperwork was being completed, she offered to assist Brown, who was on crutches, to remove valuables from the vehicle pending its impoundment. He agreed to this being done. In the course of this process, Constable Griffiths looked at and removed various items from the vehicle. In particular, she noticed three cigarette packets on the passenger seat and shook them to see if they were empty or full. She opened one, without asking Brown’s permission, and saw a snap lock bag containing a white crystalline substance which was later found to be methylamphetamine.
Further investigations took place, leading to the laying of additional charges against Brown. All the charges were discontinued after a judge in the County Court ruled that the opening of the cigarette packet was part of an illegal search and that evidence obtained as a result of that search, together with the product of the investigations which followed it, was inadmissible under s 138 of the Evidence Act 2008.
Investigations following the original search also led to charges being brought against the applicant, being Brown’s partner. In that case, a different judge refused to exclude the evidence relied on by the Crown. The applicant seeks leave to appeal against that ruling.
It is necessary to say more about the events that followed the search. Before doing so, we note that both parties, like the judge in the present matter, proceeded on the basis that certain findings of the judge in Brown’s case were applicable in the applicant’s case as well. In particular, it was agreed that the search was unlawful, that it was a deliberate search and that the impropriety involved was in the most serious range. In the circumstances, we expressly refrain from entering into those questions or expressing any opinion as to the correctness of the first judge’s decision to exclude the evidence so obtained under s 138.
After Brown was arrested, a further search of the vehicle was conducted, which located vials of testosterone. Further drugs were located following a subsequent strip search. The next day, a search of Brown’s parents’ home, to which he had access, located a large quantity of methylamphetamine and a safe containing $227,100. Another search, of a storage unit leased in Brown’s name, located further drugs and a vacuum sealing machine and bags. There is no doubt as to the lawfulness of all these searches. They took place in the course of an investigation into Brown’s drug trafficking activities codenamed Operation Icecold, under Constable Griffiths. Brown was charged with possession and trafficking charges arising from the events of 11 January, trafficking a commercial quantity of methylamphetamine (in respect of the evidence located in the search of his parents’ home) and trafficking and possession offences in relation to the storage unit evidence.
On 22 January 2014, Victoria Police commenced a proceeds of crime investigation codenamed Operation Scroggiest, targeting the suspected proceeds of Brown’s drug trafficking operations. The lead investigator of Operation Scroggiest was Detective Senior Constable Northfield.
While on remand, Brown made a series of ‘Arunta‘ telephone calls. Ms Northfield retrieved the records of these calls and made notes of them on 14 March 2014. As a result, the applicant came to the attention of Ms Northfield. In particular, in a call on 21 January 2014 with his father, Brown referred to an address in Glen Iris as being ‘his and [the applicant’s] place.’ On 23 January, Brown stated to the applicant that he was ‘in gaol for something you have participated in and profited from’.
Ms Northfield contacted Ms Griffiths and provided her with the notes of the calls and informed her that the applicant was the bondholder for the rental of the Glen Iris address. It is accepted by the Crown that, without this information, obtained from the ‘Arunta’ calls it could only be speculated as to whether police would have found out about the Glen Iris address. A subsequent search of that address yielded evidence central to the present application.
In the meantime, Ms Northfield had received, as part of Operation Scroggiest, a Victoria Police information report, IR568. That report, dated 28 February 2014, had as its subject Brown and the applicant. Among other things, it referred to the detection of 370 gm of methamphetamine in an importation addressed to Andrew Pemberton at an address in Malcolm Street, South Yarra, which had been intercepted by the Australian Border Force on 12 February 2014. The report referred to an ongoing investigation into a drug supplier based in the United States who was selling narcotics through the Silk Road internet site under the name ‘Darkexpresso’. The report stated that three of ‘Darkexpresso’s’ Australian customers were thought to be the same individual, and that multiple shipments had been sent to a series of names and addresses, including four names with the same initials as the applicant, two each at another address in Malcolm Street and two at a Surrey Hills address. The report stated that Brown and the applicant both held driver’s licences at this Malcolm Street address, which together with the use of the same initials might indicate that the applicant may have had some involvement with the orders. Reference was also made to one customer having told ‘Darkexpresso’ that they were shortly flying to the other side of the world for 15 days, shortly before Brown and the applicant travelled outside Australia for 15 days. The report stated that it was probable that Brown and/or the applicant were responsible for multiple large scale narcotics importations.
Comments forming part of IR568 noted the seizure of drugs after Brown was stopped by police on 11 January 2014, and suggested that the two Malcolm Street addresses were part of a single development. Other comments recommended forwarding the report to Operation Scroggiest, Operation Icecold and to Stonnington CIU for dissemination. However, on 25 March 2014 it was forwarded to Prahran CIU and assigned to Detective Senior Constable Fridman.
On 26 March 2014, Mr Fridman read another information report, IR508, which set out details of Brown’s arrest, the subsequent searches at his parents’ home and the storage facility, and the ‘Arunta’ calls. It also recorded the applicant’s relationship to Brown and her residence at the Glen Iris address.
On 27 March 2014, Mr Fridman read IR568. He acknowledged in evidence before the trial judge that IR508 and IR568 were the foundation of his subsequent investigation, codenamed Foreignmail. Within a short time he commenced preparation for a warrant to search the Glen Iris address and contacted Ms Northfield to obtain the ‘Arunta’ call notes. He also advised Ms Griffiths by email on 28 March 2014 that he had started Operation Foreignmail ‘targeting the girlfriend ([the applicant])’. Ms Griffiths asked Mr Fridman to seize the applicant’s telephones because she needed to try and tie Brown into trafficking with more evidence than she currently had.
On 3 April 2014, Sergeant Crawford, who was Mr Fridman’s supervising officer, swore an affidavit in support of an application for a search warrant for the Glen Iris address. The affidavit referred to the search of Brown’s car and his arrest, the searches of his parents’ home and the storage facility, the ‘Arunta’ calls, the importation in the name of Andrew Pemberton and the Silk Road activities and suspected links to the applicant and/or Brown. The search warrant was issued and was executed the next day. Police seized $11,000 in cash, traces of drugs, evidence of Australia Post labels and packaging, computers and telephones. In the applicant’s mobile phone, a note was saved that read ‘Andrew Pemberton of … Malcolm Street South Yarra’.
A second warrant was issued and executed in relation to the Glen Iris address a few days later. Police seized electronic devices, mobile phones, USB drives, computer hard drives and a swipe card believed to access the Malcolm Street address previously occupied by Brown and the applicant.
The judge in the present matter found that there was overlap between Operation Icecold and Operation Foreignmail. Among other things, there were emails and discussions between investigators. Mr Fridman was available as a witness in respect of Brown’s bail application and committal. There were queries as to whether Brown would be subject to further charges as a result of Operation Foreignmail. Documents seized from the Glen Iris address were found to bear fingerprints of Brown as well as the applicant. The respective investigations were discussed at a meeting involving Mr Fridman, Sergeant Crawford, Ms Griffiths and a solicitor from the Office of Public Prosecutions. In January 2015, Mr Fridman advised Ms Griffiths about a meeting he had with prosecutors regarding Brown’s participation in the importation and trafficking of drugs through Silk Road.
Nonetheless, Operation Foreignmail did not result in further charges being laid against Brown. Among other things, investigators were focussing on periods when Brown was in custody, when they believed the applicant had been trafficking without his knowledge. At the same time, both the ‘Arunta’ calls and the seizures from the Glen Iris property had been part of the evidence sought to be used against Brown on the pending charges.
The applicant was charged with trafficking in methylamphetamine and cocaine between dates in 2013 and trafficking in methylamphetamine in February 2014. She was also charged under the Criminal Code (Cth) with importing a marketable quantity of methamphetamine on 12 February 2014.
After the charges were laid, Mr Fridman made a statement for the brief in the applicant’s prosecution in which he stated that he commenced Operation Foreignmail on 27 March 2014 as ‘an investigation into suspected drug trafficking by [Brown] and [the applicant]’. On 20 August 2015, Mr Fridman said in an email to Sergeant Crawford that defence counsel had said he would subpoena the Brown brief and that he was ‘guessing they are trying to go down the same path’. The evidence in the Brown prosecution had been ruled inadmissible on 29 May 2015. Later, Mr Fridman made a further statement dated 8 February 2016 in which he said that the ‘sole target’ of Operation Foreignmail was the applicant (referring to the email of 28 March 2014 to Ms Griffiths mentioned at [13] above).
Defence counsel alleged that Mr Fridman’s conduct in this regard was calculated to mislead the court about the nature and scope of Operation Foreignmail and that there had been a deliberate attempt to ‘rewrite history’ by isolating the investigation into the applicant from the Brown investigation. The judge found that the statement of 8 February 2016 was literally true. The fact that it failed to acknowledge that investigators were also looking for evidence of Brown’s participation in the Operation Foreignmail trafficking was held to go to Mr Fridman’s credibility. He held that, without deciding whether the conduct amounted to an impropriety, it occurred long after the Glen Iris searches and the resulting evidence could not be said to have been obtained ‘in consequence of’ that conduct for the purposes of s 138.
Moreover, the judge found that the ‘real target’ in Operation Foreignmail was the applicant.[2] He explained:
On a slightly different tack, it may also be observed that Operation Foreignmail did not result in any further charges being laid against [Brown]. Further, the evidence gathered from the [Glen Iris] searches relates to different trafficking activities than the offences with which [Brown] was charged. Further still, when the police investigators were questioned by the OPP in 2015, Sgt Crawford reported that there was no evidence justifying charges against [Brown] available from the Operation Foreignmail investigation. In this way, it may be inferred that whilst [Brown] was under investigation, the real target for pursuit in the investigation was in fact [the applicant].[3]
[2]DPP v [Slater] (County Court of Victoria, Judge Lyon, 11 February 2019) [90] (‘Ruling’).
[3]Ibid.
The judge later expanded on this analysis. It will be necessary to return to his reasons when considering the proposed grounds of appeal.
Judge’s reasons
The judge commenced his analysis by setting out s 138. It 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—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The judge relied on Director of Public Prosecutions v Kaba[4] for the proposition that s 138(1)(b) did not require the causal link between an impropriety or contravention and the obtaining of evidence to be direct, and that a chain of causation linking the two would suffice.[5] He found that this was established because the ‘Arunta’ calls and IR508 provided Mr Fridman with the name of the applicant and the Glen Iris address, and these were traceable to the impropriety in the original search. The judge rejected a submission that it was inevitable that the applicant would have been investigated after the Australian Border Force interception and certain Australian Federal Police reports.
[4](2014) 44 VR 526, 618 [336]–[337] (Bell J).
[5]He referred also to R v Hill (2012) 6 ACTLR 167, 185 [99] (Refshauge J), Cornwell v The Queen [2010] NSWCCA 59 and Re Lee (2009) 212 A Crim R 442; [2009] ACTSC 98.
Further, the judge found that it was ‘impossible to disentangle the reliance placed by police on information about the illegal search and consequent evidence’ in the application for the first warrant to search the Glen Iris address.[6] There was ‘a real reliance on the illegal searches and the Arunta calls as part of the process to obtain the warrant’.[7]
[6]Ruling [68].
[7]Ibid [69].
The judge therefore held that the evidence obtained from the Glen Iris searches was obtained ‘in consequence of an impropriety or a contravention of Australian law’ and that the applicant had discharged the onus under s 138(1)(b). He then turned to consider the balancing exercise required by the section.
The judge first considered the eight factors set out in s 138(3). In short, the judge found that the probative value and importance of the evidence were high, that the offences were serious and that, following the first judge’s ruling, the impropriety was deliberate and serious. As already mentioned, he declined to find that it was compounded by the conduct of Mr Fridman in giving different descriptions of the scope of Operation Foreignmail. He also did not think that the impropriety was contrary to or inconsistent with any right of the applicant under the International Covenant on Civil and Political Rights. The judge noted that no disciplinary or other proceedings had been initiated in respect of the impropriety and that Ms Griffiths had since been promoted. Finally, he took account of the fact, under s 138(3)(h), that the evidence against the applicant could have been, and in fact was, obtained by lawful means, even though it sprang ‘in large part’ from the original impropriety.[8]
[8]Ibid [98].
Next, the judge referred to the tension between the public interest in the conviction of those who commit criminal offences and the undesirability of the court countenancing unlawful conduct or significant impropriety by those responsible for upholding the law (referring to Murray v The Queen[9]). In that context, he considered factors beyond those set out in s 138(3), in the following terms:
[9][2017] VSCA 236 [45]–[47] (Priest, Beach and Kaye JJA).
In my view, the tension in this case must take into account factors to which I have already alluded, which go beyond the eight factors which I have taken into account under s 138(3). They are as follows:
·The illegal search on 11 January 2014 did not yield information or evidence against [the applicant]. Rather, it led to [Brown] being remanded in custody.
·The Arunta calls were made whilst [Brown] was in custody. These reveal the identity of [the applicant] and the [Glen Iris] address. The Arunta calls were part of the investigation into [Brown] and not into [the applicant].
·DSC Fridman was a member of a different squad, and based at a different police station to the informant in Operation Icecold. Mr Fridman was removed from knowledge, liability and complicity in the earlier impropriety. His investigation (and here I am focusing on the [Glen Iris] searches) commenced by using legitimate police investigative methods — that is, inquiries of VicRoads, the police LEAP system and the use of search warrants.
·Although the affidavit for the search warrant was ‘infected’ by the use of information concerning the illegal search, I have already dealt with that. As I am now dealing with the onus placed on the Crown to establish the desirability of admitting evidence obtained in consequence of impropriety, I do not need to revisit that matter in this consideration.
·After the search, all examinations of the seized items and data took place using legitimate police examinations.
Thereafter the direction of the investigation in Operation Foreignmail differed from the investigation and evidence gathered against [Brown] in Operation Icecold. Further, the charges laid against [the applicant] relate to different periods than those laid against [Brown] (and some charges at least, relate to periods when [Brown] was in gaol). Finally, I consider that the focus can be said to have been upon alleged criminal activity of [the applicant]. No further evidence was gathered against [Brown] such as to justify laying further charges.
In other words, there is the distinctness about the evidence in circumstances in which it was obtained against [the applicant] which in my view attenuates the causal link to the original impropriety.[10]
[10]Ruling [101]–[103].
The judge concluded that the evidence of the ‘Arunta’ calls should be excluded as it ‘emanated from and focused exclusively’ on Brown.[11] However, he was satisfied that the desirability of admitting the other evidence outweighed the undesirability of admitting evidence obtained as that evidence had been. He noted in conclusion that the first judge did not deal with Operation Foreignmail or the Glen Iris searches at all, as those matters were not before her. There was therefore no inconsistency between the two rulings.
[11]Ibid [104].
Proposed grounds of appeal and submissions
The judge certified the above decision under s 295(3) of the Criminal Procedure Act 2009, and the applicant seeks leave to appeal accordingly under s 298. By her amended application for leave to appeal, the applicant advances two proposed grounds, as follows:
1.The learned trial judge’s exercise of power under s 138 of the Evidence Act 2008 miscarried as a consequence of his findings:
(a)on the one hand, that the evidence obtained against the [applicant] was in consequence of an impropriety or of a contravention of an Australian law; and
(b)on the other hand, that there was a ‘distinctness about the evidence … obtained against [the applicant] which … attenuate[d] the causal link to the original impropriety’.
4.The learned trial judge’s exercise of power under s 138 of the Evidence Act 2008 miscarried as a result of his declining to have regard to impropriety on the part of investigating police that post-dated its collection of the evidence sought to be excluded.[12]
[12]Proposed grounds 2 and 3 were abandoned by the applicant.
Under the first proposed ground, Mr Kassimatis QC on behalf of the applicant argued that the trial judge ought to have kept separate from the balancing exercise under s 138 the causal link which was the subject of the enquiry under s 138(1)(b). It was submitted that the impugned evidence either was or was not obtained ‘in consequence’ of the search of Brown’s vehicle. Having decided that the link was established, it was submitted that none of the considerations to which the trial judge had regard in the context of the balancing exercise was capable of affecting or ‘attenuating’ that causal link. It was submitted that the text and structure of s 138(1) indicates that the two steps in the process are to be kept separate. The first step casts a factual and legal onus upon an applicant to establish that the impugned evidence is obtained by or in consequence of an impropriety or contravention of law. Such evidence is prima facie not to be admitted. The second step then casts an onus on the prosecution which looks to the public interest or desirability of admitting the evidence notwithstanding the impropriety or contravention.
The primary argument advanced under this ground was that, for the above reasons, there was an error in revisiting the question of causation at all in connection with the second step of the process under s 138. A secondary submission was that, even if the causation question was capable of being relevant to the balancing exercise, on the facts of this case the finding of attenuation could not be justified. In connection with the latter argument, reliance was placed on a range of factual matters. They included the fact that the ‘Arunta’ calls were listened to by Ms Northfield as part of Operation Scroggiest, and that material in those calls formed part of both investigations. In addition, the judge had already found that there was overlap and entanglement between the investigations into Brown and the applicant respectively. As such, the fact relied on by the judge, that Mr Fridman was in a different squad based at a different police station to Ms Griffiths, was of no moment. The same could equally have been said of Ms Northfield.
Mr Kassimatis submitted that the finding that the focus of Operation Foreignmail was upon the alleged criminal activity of the applicant was wrong. It was submitted that it was contrary to the finding of overlap and the finding that the investigations could not be disentangled. Reference was also made to passages in the cross-examination of various police officers at the hearing in the present matter. For example, Ms Griffiths gave evidence that Operation Foreignmail was an investigation into Brown as well as the applicant. She confirmed that she had asked Mr Fridman to seize the mobile phones of the applicant because she needed to tie Brown into trafficking with more evidence than she then had. Ms Griffiths gave evidence that she obtained the ‘Arunta’ calls through Mr Fridman and that they were, like Mr Fridman’s investigation more generally, a resource for the investigation into Brown. She described Mr Fridman’s investigations into Brown and the applicant as ‘one and the same’. As already noted, Mr Fridman had at one point described Operation Foreignmail as an investigation into both Brown and the applicant. Sergeant Crawford had also sworn in his witness statement of 3 June 2015 that Operation Foreignmail was an investigation into suspected drug trafficking by the applicant and Brown. It was submitted that in light of this evidence, the finding that the applicant was the only target of Operation Foreignmail could not be sustained.
Mr Kassimatis further submitted that there was an inconsistency in the judge’s treatment of the ‘Arunta’ calls, which the judge excluded, and the evidence obtained during the searches of the Glen Iris address. It was submitted that there was no meaningful difference between the two and that this inconsistency ‘betrayed an unreasonable outcome’.
In relation to proposed ground 4, which focussed on the evidence of Mr Fridman as to the scope of Operation Foreignmail, the applicant submitted that the judge was in error in holding that evidence of improper conduct occurring after the obtaining of the evidence was irrelevant to the balancing exercise under s 138. It was submitted that part of the purpose of s 138 was to ensure respect for the rule of law and that police misconduct which was calculated to impede the proper operation of s 138 could be taken into account for that reason. Mr Kassimatis relied on Tasmania v Crane[13] and R v Hunt.[14]
[13](2004) 148 A Crim R 346, 354 [21]; [2004] TASSC 80 (Blow J).
[14](2014) 286 FLR 59, 65–6 [23], 85–6 [146]–[149]; [2014] NTSC 19 (Hiley J).
It was submitted that the balancing required by s 138 had miscarried as a result of the failure of the judge to take account of this relevant consideration. It was submitted that the finding of the judge in relation to the evidence of Mr Fridman did not go purely to his credit but should also have been weighed in the balance.
Mr Gibson QC, on behalf of the respondent, submitted in respect of proposed ground 1 that the judge had properly focused upon the effect of the impropriety in question, consistently with Director of Public Prosecutions v Kaba[15] and Director of Public Prosecutions v Marijancevic.[16] It was submitted that the degree of connection between the evidence and the impropriety, and the question where the evidence sits in the continuum or causal chain commencing when the impropriety occurred, were considerations relevant to the exercise of the balancing process required by s 138. In the present case, the further the train of enquiry departed from the search of 11 January 2014, the less was the impact of that impropriety on the obtaining of the evidence. It was noted that the charges against Brown and the applicant were for different offending and different time periods. The unlawful search had not yielded any evidence against the applicant and the searches of the Glen Iris premises had not led to further charges against Brown. It was accepted, however, that material obtained from those searches had appeared in depositions in respect of the charges already laid against Brown.
[15](2014) 44 VR 526, 616–7 [329] (Bell J).
[16](2011) 33 VR 440, 445 [17] (Warren CJ, Buchanan and Redlich JJA).
The respondent submitted that the judge had been entitled to exclude the evidence of the ‘Arunta’ calls even though they were the source of the information about the Glen Iris address, because the ‘Arunta’ calls flowed more directly from the unlawful search than the evidence subsequently obtained, despite the connection between them.
It was submitted by the respondent that, although s 138 does not confer a discretion in terms, review of the outcome of the balancing exercise properly took place according to the principles in House v The King.[17] The applicant had failed to establish an error according to those principles in the way in which the judge dealt with the question of causation. Even if there was evidence which would have supported a finding that there had been a single investigation, it was also open to find that Operation Foreignmail had the applicant as its principal target, notwithstanding the overlapping between the investigations and the fact that they were not capable of being disentangled. The finding that they were different yet parallel operations was said to be well open.
[17](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
In respect of proposed ground 4, Mr Gibson submitted that any finding in relation to the conduct of Mr Fridman in making statements and giving evidence relating to the origins of Operation Foreignmail did not bear on the matters arising under s 138, because it could not be said that any evidence was obtained in consequence of that conduct. Moreover, the trial judge had found that the statement in question was true, meaning that there was no basis for taking the alleged impropriety into account in the present case in any event.
Appellate review and s 138
In its terms, s 138 of the Evidence Act does not confer a discretion. However, the application of the balancing exercise required by the section calls for ‘value judgments in respect of which there is room for reasonable differences of opinion’, such that no particular opinion is ‘uniquely right’.[18] On that basis, this Court has regularly applied the principles in House v The King when reviewing decisions made in the balancing process under s 138.[19] There was no departure from that approach suggested in the submissions before us, and we proceed on that basis.
[18]Norbis v Norbis (1986) 161 CLR 513, 518 (Mason and Deane JJ); see also Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713, 721 [18] (Kiefel CJ), 726–7 [43]–[50] (Gageler J), 733–4 [85]–[87] (Nettle and Gordon JJ); [2018] HCA 30.
[19]DPP v MD (2010) 29 VR 434, 440–1 [27]–[30] (Maxwell P, Nettle and Harper JJA); DPP v Marijancevic (2011) 33 VR 440, 444 [13] (Warren CJ, Buchanan and Redlich JJA); Murray v The Queen [2017] VSCA 236 [47] (Priest, Beach and Kaye JJA).
As a result, the applicant must show that the judge acted upon a wrong principle, was affected by irrelevant matters, mistook the facts, failed to take a material matter into account, or made a decision that was unreasonable or plainly unjust to the extent that it can be inferred that he must have failed properly to exercise the power to decide under s 138(3).[20]
[20]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
Proposed ground 1 — ‘attenuation’ of causal link
The applicant’s primary submission under the first proposed ground was that the judge’s finding that the causal link was ‘attenuated’ revealed that an impermissible consideration had been relied on because, by the time the balancing exercise is being undertaken, the causal link must be taken to have been established as part of the first step, here under s 138(1)(b).
We do not accept that the judge’s finding of ‘attenuation’ is inconsistent with his conclusion that there was a causal link between the improper search on 11 January 2014 and the obtaining of the evidence sought to be led against the applicant. In context, the judge was identifying a weakening in the causal link, rather than the destruction of that link. He looked to the evidence relied on against the applicant and assessed the strength of its causal connection to the improper search. On that basis, the evidence of the ‘Arunta’ calls was distinguished from the remainder of that evidence because it was more closely connected to that search.[21]
[21]The word ‘attenuate’ which the judge used appears to have been derived from a submission made by the prosecutor that the causal link had ‘become so attenuated as to dissipate the taint’, which quoted from Nardone v United States (1939) 308 US 338, 341 (Frankfurter J for the Court). Although that submission was directed at the first step under s 138(1) it does not follow that the notion of attenuation is irrelevant to the second step.
The degree of connection between evidence obtained ‘in consequence of’ an impropriety or contravention and that impropriety or contravention is plainly a matter capable of bearing on the balancing exercise. If the impropriety or contravention bears only a distant causal relationship to the evidence, the public interest in deterring impropriety or contravention of the law by obtaining evidence in the manner concerned might be thought more likely to be outweighed by the public interest in admitting probative evidence. Conversely, exclusion of evidence closely connected to the impropriety or contravention might more obviously serve the public interest in deterring the obtaining of evidence in that manner.
More generally, there is a judgment to be made about each piece of evidence which satisfies the test in s 138(1)(b) by having been obtained in consequence of a particular impropriety or contravention, and it is not necessary that the outcome of the balancing exercise be the same in respect of every piece of evidence. As the connection becomes more tenuous, and evidence is obtained through lawful means, in spite of that connection, the various factors weighing in the public interest will not necessarily remain constant.
In explaining the position this way, we should not be taken as laying down general rules for the application of the weighing process required by s 138. We are instead pointing to the possibility of approaching that exercise in a way that takes account of the strength of the causal connection between each piece of evidence and the impropriety or contravention as a consequence of which it was obtained. The legitimacy of that approach, which we understand the judge in this case to have adopted, means that the applicant’s primary argument under the first proposed ground must fail.
The secondary submission on behalf of the applicant sought to disturb the judge’s finding that the causal link between the evidence and the improper search was attenuated, assuming for this purpose, as we have held, that this was a relevant consideration if made good on the facts.
To succeed in this argument, it was necessary for the applicant to show that the finding was based on a mistake as to the facts or was unreasonable or plainly unjust in the House v The King sense. However, the matters upon which the judge relied were not said to be incorrect. Issue was instead taken with his conclusion. For example, the judge correctly stated that the improper search on 11 January 2014 only yielded evidence against Brown, not the applicant, and that Operation Foreignmail produced no further charges against Brown. He was also correct to say that the charges against the applicant related to different periods, some at least of which were periods when Brown was in custody. He was also correct to observe that Mr Fridman was removed from knowledge, liability or complicity in the impropriety. All these matters bore on the degree of connection between the improper search and the evidence relied upon against the applicant.
The applicant pointed to the overlap between the different investigations and the interactions between the police officers involved in them. As the judge accepted, the investigations were closely related and could be seen as entangled. The applicant also noted that the officers being placed at different police stations did not affect that characterisation. But these considerations do not deny the judge’s conclusion that, from an early stage, the direction of Operation Foreignmail differed from that in Operation Icecold, and that its focus was on the applicant — who had not been the subject of the improper search. Nor do they mean that it was wrong for the judge to rely on the distinctness of the evidence and the circumstances in which it was obtained as a basis for finding that the causal link to the improper search was attenuated.
The judge’s finding to that effect was one that was open to him. It cannot be said to be mistaken, unreasonable or plainly unjust in the sense required. In those circumstances, the applicant’s secondary submission must be rejected.
There is also no House v The King error shown by virtue of the judge’s different treatment of the ‘Arunta’ calls. The records of those calls were made as part of the investigation into Brown, and the calls came to be made and listened to only because of his arrest after the unlawful search. The Glen Iris searches, while linked to the ‘Arunta’ calls, proceeded from other information as well.[22] It was open for the judge to draw the line in the manner he did.
[22]See [14] above.
Leave should be granted in respect of the first proposed ground, but the appeal on that ground must be dismissed.
Proposed ground 4 — relevance of subsequent misconduct
The fourth proposed ground concerns the judge’s approach to the evidence of Mr Fridman, and in particular the finding that inconsistencies in the way in which he described the scope of Operation Foreignmail went to his credit but were otherwise irrelevant to the balancing process under s 138(3).
The respondent submitted that, because the statements of Mr Fridman were made after the evidence had been obtained, the evidence could not have been obtained in consequence of the statements and that, as a result, even if they constituted an impropriety, they had no relevance to the section. There is obvious force in the submission, to the extent that it contends that an impropriety taking place after evidence has been obtained cannot, of itself, engage the section.[23] However, it is less clear that, once the section is attracted by an impropriety or contravention, a later impropriety is necessarily irrelevant to the balancing exercise. We will confine our attention to the kind of impropriety alleged here, which is an attempt to conceal the consequences of the original impropriety or contravention from the court.
[23]It is not necessary to decide this question. It may be, for example, that the position is different if a subsequent impropriety so closely follows the lawful conduct by which the relevant evidence was obtained and so closely relates to the value and effect of that evidence that the two aspects are effectively continuous and cannot meaningfully be separated for the purpose of applying s 138(1)(b); see in relation to the common law position, DPP v Moore (2003) 6 VR 430, 454 [55] (Chernov JA); R v Rockford (2015) 122 SASR 391, 400 [36] (Stanley J, with Kourakis CJ and Sulan J agreeing).
The public policy which is advanced when evidence is excluded under s 138 is broadly described in s 138(1). It is not merely the public interest in excluding the specific evidence obtained by or in consequence of the relevant impropriety or contravention. It is the public interest in not admitting any evidence obtained in the relevant way. In other words, the section looks not only at what was done in the instant case, but at the undesirability of the same thing being done in other cases.[24]
[24]Under the discretion as it operated at common law, the position might have been different. It could be contended that the public interest supporting exclusion of improperly or unlawfully obtained evidence was narrower than is the case under s 138. For example, in Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 288, Doyle CJ (with whom Cox and Matheson JJ agreed) stated that ‘the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence, and from avoiding the appearance of approval by allowing the use of the evidence’. At the same time, the Chief Justice also referred to the discretion’s object being to discourage illegal or improper behaviour by law enforcement authorities: at 288. See generally, DPP v Moore (2003) 6 VR 430, 457–8 [70]–[73] (Eames JA).
For that reason, if an attempt is made to conceal the impropriety or contravention, or its consequences, from a court seeking to apply s 138, one of the purposes of the provision is apt to be undermined. Accordingly, such an attempt is a matter that may potentially be relevant to the balancing exercise under s 138(3). This approach has been taken by trial judges in the only authorities to which we were taken, or which we have been able to discover, on this question.
In Tasmania v Crane,[25] Blow J was called upon to rule on the admissibility of evidence obtained in a search purportedly done pursuant to a warrant but which was held to have been unlawful. In evidence at committal, police officers had misled the court by giving the impression, in statutory declarations, that they had located evidence in the premises during the search, whereas they had in fact entered the premises unlawfully before seeking to obtain a warrant. Blow J rejected a Crown submission that the making of the misleading statutory declarations was irrelevant. He explained:
It is true that the improper making of misleading statutory declarations was not an impropriety of the type referred to in s 138. It was an impropriety that occurred after the evidence was obtained, rather than an impropriety at the time the evidence was obtained. However, when evidence is improperly or illegally obtained by police officers, I consider that the attitude of those officers to the rule of law, as displayed during the relevant investigation and any associated prosecution, before, during and after the obtaining of the evidence, must be relevant to the exercise of the discretion conferred by s 138.[26]
[25](2004) 148 A Crim R 346; [2004] TASSC 80.
[26]Ibid 354 [21].
Similarly, in R v Hunt,[27] Hiley J took into account, in undertaking the balancing exercise under s 138, that some police witnesses engaged in ‘unreasonable semantics’ in their endeavours to convey a favourable impression of events to the court (while finding that none had deliberately lied).[28] One officer, in particular, had given ‘unsatisfactory’ evidence as to whether or not the accused in that case was a suspect at relevant times.[29] Hiley J stated:
Conduct of this kind, namely conduct that has occurred well after the events the subject of the particular searches, is relevant to one of the two parts of the balancing process, namely the public interest in ensuring not only that evidence is obtained properly and lawfully, but also in ensuring that the facts and circumstances during and leading up to the relevant searches, can be revealed and examined by others including a court at some later time.[30]
[27](2014) 286 FLR 59; [2014] NTSC 19.
[28]Ibid 85 [147].
[29]Ibid 85 [148].
[30]Ibid 85–6 [149].
For these reasons, the conduct of Mr Fridman in giving evidence in relation to the admissibility of the evidence in the present case was potentially relevant to the balancing exercise under s 138. If the judge viewed the matter otherwise, this would have been an error.
However, the judge did not confine his decision in this regard to questions of relevance. He held that he could not conclude that the statement of Mr Fridman of 8 February 2016 (in which he described the applicant as the ‘sole target’ of Operation Foreignmail) ‘constitutes an impropriety or contravention that may be taken into account for the purposes’ of s 138.[31] His principal reason for so deciding was that the statement was ‘literally true’, subject to the criticism that it failed to acknowledge that investigators also looked for evidence of Brown’s participation in the drug trafficking activities being investigated.[32] He also noted that the evidence could not be said to have been obtained in consequence of the alleged impropriety constituted by the statement.
[31]Ruling [86].
[32]Ibid [87].
In our opinion, it was well open to the judge to put the statement of Mr Fridman to one side as a matter going only to his credibility. The statement was supported by a contemporaneous email and was criticised only for being incomplete. In circumstances where the judge found that the focus of Operation Foreignmail was indeed the applicant, the statement of Mr Fridman was substantially endorsed by the judge’s findings and nothing turned on its incomplete nature for the purposes of the balancing exercise.
Leave to appeal on this ground should be granted but the appeal on this ground must also fail.
Conclusion
While leave to appeal should be granted, the appeal must be dismissed.
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