Tasmania v Arkinstall
[2013] TASSC 20
•22 May 2013
[2013] TASSC 20
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Arkinstall [2013] TASSC 20
PARTIES: TASMANIA, State of
v
ARKINSTALL, Alan Robert
FILE NO: 486/2012
DELIVERED ON: 22 May 2013
DELIVERED AT: Hobart
HEARING DATE: 1 May 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Questioning in recorded interview after refusal to answer questions.
Evidence Act 2001 (Tas), ss90, 138.
Aust Dig Criminal Law [2683]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Search of premises under warrant in absence of accused – Was accused an occupier of premises at time of search.
Search Warrants Act 1997 (Tas), s13.
Evidence Act 2001 (Tas), ss90, 138.
State of Tasmania v Seabourne [2010] TASSC 35; Fox v Warde [1978] VR 362; Madrassa Anjuman Islamia of Kholwad v Municipal Council of Johannesburg [1922] 1 AC 500, referred to.
Aust Dig Criminal Law [2683]
REPRESENTATION:
Counsel:
Crown: A L Shand
Accused: K L Edwards
Solicitors:
Crown: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2013] TASSC 20
Number of paragraphs: 37
Serial No 20/2013
File No 486/2012
STATE OF TASMANIA v ALAN ROBERT ARKINSTALL
REASONS FOR JUDGMENT TENNENT J
22 May 2013
The accused was charged jointly with Tamika Buchanan in respect of three counts of trafficking in a controlled substance. The first count relates to a substance known as BDMPEA. The second count relates to cannabis, and the third relates to a drug called Lysergide. Buchanan has already pleaded guilty and been sentenced.
The State's case against the accused is largely dependent on the results of a police search of premises at Unit 2, 27 Kingsley Avenue, Romaine which took place on 30 May 2012, and a subsequent recorded interview.
On 28 May 2012, police obtained a search warrant in relation to the Kingsley Avenue premises and premises at Unit 3, 55 Flinders Street, Brooklyn. There is no doubt that the target of the warrant was the accused, and that police were looking for evidence of his drug related activities. The Kingsley Avenue premises were rented to Buchanan and her former partner. The Flinders Street premises were those where the accused lived. Police executed the warrant at both premises on 30 May.
As to the Kingsley Avenue premises, a number of police arrived at the premises at about 10am on 30 May. They entered by going through a garage and then up an internal set of stairs. The unit was a small two bedroom unit. The lounge/kitchen/dining area was open plan. There was a small laundry. The accused and Buchanan were in the open plan living area when police arrived. The premises were searched and a number of items were seized. Both Buchanan and the accused were present for part of the time the premises were being searched. The accused was arrested and removed at about 10.10am, while Buchanan was arrested and removed at about 10.40am. The accused was interviewed early the same evening.
Counsel for the accused seeks to exclude evidence of the search and the recorded interview. A voire dire has been held prior to the empanelment of a jury. Three police officers involved in the search gave evidence. Counsel tendered a number of exhibits, and I was asked to have regard to specified documents in the Crown papers for the purpose of determining the issues. The bases for the application to exclude the evidence are as follows:
· Police did not comply with the Search Warrants Act 1997 ("the SW Act"), s13, in that the accused was an occupier of the Kingsley Avenue premises and was not permitted to be present throughout the search.
· All items gathered during the course of the search were, as a consequence, illegally or improperly obtained and should be excluded by reference to the Evidence Act 2001 ("the Act"), s138.
· Alternatively, in the event that the Court were to find that the accused was an occupier, and that police found some items before and some after he was removed from the premises, the Court should exclude the evidence of the search relating to those items found after removal of the accused.
· The accused, during the course of his recorded interview, told police at one point that he did not wish to answer any further questions. Police continued with questioning and the accused made some admissions.
· Those admissions were improperly obtained, and the interview should therefore be excluded by reference to s138. In the alternative, it would be unfair to allow the interview, insofar as it contained admissions, to be admitted having regard to the Act, s90.
The Evidence Act 2001
The Act, s138, provides as follows:
"138 Discretion to exclude evidence improperly or illegally obtained
(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.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning –
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it 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 Act, s90, provides:
"90 Discretion to exclude admission
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
The Search Warrants Act 1997
The section relied on by counsel for the accused was s13 which provided:
"13 Occupier entitled to be present during search
(1) If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the premises, the occupier or other person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the occupier or other person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time."
Counsel for the State also made reference to s6(2)(a)which provided:
"(2) A warrant that is in force in relation to premises authorises the executing officer or a person assisting who is a police officer –
(a)to conduct an ordinary search and a frisk search of any person at or near the premises if the executing officer or person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; and …"
and s8 which provided:
"8 Details of warrant to be given to occupier, &c
(1) If a warrant is being executed and the occupier of the warrant premises or another person who apparently represents the occupier is present at the warrant premises, the executing officer or a person assisting is to show to that person a copy of the warrant.
(2) If a person is searched under a warrant, the executing officer or a person assisting who is a police officer is to show the person a copy of the warrant.
(3) The executing officer is to identify himself or herself to the person at the premises or the person being searched, as the case may be."
Circumstances surrounding the search
The warrant holder for the search was Constable Andrew Smith. He attended the premises with a number of other officers who included Sergeant Flude and Constables Buckley and Gunn. Sergeant Flude entered the unit though the internal stairs and was the first officer in the unit. There was a post pack on the floor as he stepped in. He actually moved the post pack to avoid stepping on it, and I infer placed it on the kitchen bench. Constable Smith showed the warrant to the accused and asked him if there were any drug-related items at the premises. The accused produced a thermos flask and said it contained cannabis. Constable Smith also collected five mobile phones. Detective Gunn was directed by Sergeant Flude to effect a search of the accused. Detective Gunn took the accused to the laundry adjacent to the open plan living area for that purpose. He estimated that took no more than a minute, and then the accused came back into the living area. It seems someone began to open the post pack while the accused was in the laundry. However, it was not fully opened and the contents revealed until he returned. While the pack was being fully opened and its contents explored, the accused was in the same room. There is no suggestion he was prevented in any way from observing what police were doing. As a result of what Sergeant Flude found in the post pack, that is a quantity of brown pills he believed to be drugs, he had a discussion with Constable Smith. Constable Smith then arrested the accused at 10.10am. After his arrest, the accused was transported to the Burnie Police Station. The rest of the search of the premises, which included a search of two cars in the garage, continued in his absence.
Constable Buckley arrived with Constable Smith and Sergeant Flude. Constable Buckley arrived at about 10am and commenced a search of the main bedroom and then the second bedroom. The searches of those rooms took her about 13 to 14 minutes. She then searched the dining table. On that table, she located a black leather wallet with a large amount of cash in it, an Eclipse tin with some tablets in it in a handbag, in a jacket on the table a black tin with a cryovac pack in it which contained brown pills, and a snap-lock bag with black dots in a black pouch in the handbag. She also found some snap-lock bags with white powder in them on the kitchen bench.
From Constable Buckley's evidence, when she was searching in and around the dining table, she observed the post pack on the kitchen bench. It had already been opened and there were the brown pills in it already referred to. After locating the items on and around the dining table, she took Buchanan to the main bedroom to search her. Buchanan was then arrested after the items identified above were found, and removed from the unit at about 10.40am.
It follows that items ultimately seized by police were found and collected as exhibits both before and after the accused and Buchanan were removed from the unit.
There can be no dispute that the contents of the post pack and the thermos were found and identified while the accused was in the same room as police and unimpeded as far as observation of the search which produced them. There can be no dispute that the items found by Constable Buckley were all found while Buchanan was in the unit, although probably after the accused had been removed.
Non-compliance with s13 and its interrelationship with s138
In Tasmania v Seabourne [2010] TASSC 35, Wood J dealt with an objection arising under the SW Act, s13. The impropriety asserted to have occurred there was that police, during the course of a search, conducted an interview with the person ultimately accused of offending. Wood J said at pars[27] – [28]:
"27 The onus of proof in relation to s138 rests on the accused to establish that the evidence was obtained improperly or illegally. Once that onus has been discharged, it is for the Crown to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting it: see R v Salem (1997) 96 A Crim R 421. In Robinson v Woolworths Ltd (2005) 158 A Crim R 456, the New South Wales Court of Criminal Appeal considered the meaning of 'improperly'. It was considered that the common law principles regarding the concept of impropriety, set out in Ridgeway v R (1995) 184 CLR 19 should be applied. Basten JA summarised those general principles, and noted the following:
'First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards.'
28 I consider that it is at odds with the role of law enforcement officers to impede the occupier's entitlement to observe a search being conducted. Section 13 of the Search Warrants Act is an important safeguard for citizens. The reality is that many people, like the accused, would not be aware that they had the right to observe the search, and it is important that the police, by their conduct and engagement with occupiers, should not discourage searches being observed. Otherwise the entitlement is negated. I conclude that there has been impropriety."
That case was relied on by a magistrate in a matter of Jones v Bryant [2013] TASMC 2 which dealt with the same practice adopted by searching police. The magistrate sent a clear message to police in that decision about the practice to which Wood J had referred. Sergeant Flude in this case was unaware of the decision in Seabourne, but was aware of the decision in Jones v Bryant and indicated that police practice had changed as a consequence.
However, the practice in the present case was not that described in either Seabourne or Jones v Bryant, and care should be taken in concluding that those cases are authority for the proposition that in every case where, as a result of some action of a police officer, an accused is not present during part or the entirety of a search, there has been an impropriety.
It is necessary to look at the facts in individual cases, and also look at just what s13 and other provisions of the SW Act provide for. Section 13 provides that, if an occupier is present, he or she is entitled to observe a search being conducted. It follows that, if he or she is not present, no such entitlement arises. There is no obligation on a police officer to advise an occupier of their right to observe. Section 13(3) makes it clear that searches can be conducted in two different areas of the one premises at the same time. It must follow that an occupier cannot observe both. It must also follow that the fact that police have searched two different areas in the one premises simultaneously, and, as a consequence, an occupier has not been able to observe both parts of the search, there cannot be said to have been an impropriety by police.
The SW Act, s6(2)(a), authorizes a body search of a person at premises being searched. In this case, the accused and Buchanan were subjected to such searches while at the Kingsley Avenue premises. Each was taken to a room other than the main living area for that purpose. In each case that was done to give the person being searched some privacy. In each case the removal of the person to another area for a body search was for a short period of time and there was no suggestion that items were actually found while either the accused or Buchanan were being searched.
Finally, it must be observed that, despite what might be perceived as the public policy behind the entitlement provided for in s13(1), the section does not provide that a police officer must in every case ensure that an occupier is present to observe the entirety of a search. Had that been the intention of Parliament when the provision was enacted, that intention could have been clearly stated. It was not. The section in my view has been worded as it has to cover situations where an occupier is not present either at all or during parts of a search for some good reason. Section 13(2) recognizes that there are circumstances where a right to observe may cease.
In this case, any capacity the accused may have had to observe the search arising by reference to s13(1) was terminated when he was arrested and removed from the premises 10 minutes after the police search commenced. The reasons for that removal appear to have been two-fold. Firstly, police found what they believed was a quantity of illegal drugs such as to warrant the immediate arrest of the accused. Secondly, once those drugs were found, police wished to separate the accused and Buchanan to ensure they had no discussion about the consequences of the find. Sergeant Flude was the senior officer at the search. No one asked him why, against the background of those reasons, it was necessary to immediately remove the accused from the premises as opposed to allowing him to remain, but under arrest and segregated from Buchanan. It was not suggested however, either by questioning of police witnesses or in submissions, that the reasons for removing the accused when they did were not valid ones.
In any event, the concern about whether the police actions amounted to a breach of s13 and an impropriety will only arise if it is determined the accused was an occupier of the Kingsley Avenue premises for the purpose of s13(1).
Was the accused an occupier for the purpose of s13?
Counsel for the accused submitted that, for the purpose of s13, the accused was an occupier of the premises at Kingsley Avenue. As such, he was entitled to be present throughout the search of those premises. Police had prevented that from occurring. Therefore, they had acted illegally or improperly and the evidence relating to the search should be excluded. Was the accused an occupier?
The Kingsley Avenue unit was rented in the name of Buchanan and her former partner. The application for a warrant identified that police believed the accused was frequenting the Kingsley Avenue premises. Recent information police had suggested that the accused was living there part- time. The warrant application also identified that the accused's car had been seen at both addresses identified. The accused, when interviewed, gave his address as Flinders Street, and said that was where he lived. He said that he did not reside, and had never resided, at the Kingsley Avenue premises. He said he stayed there maybe once a week. As a consequence of his admission that the drugs found on the premises were his (even though it is sought to exclude that admission), it may be inferred he had more than a passing connection to the premises because the post pack appears to have been sent to him there.
There is no definition of the term "occupier" in the SW Act. The term was considered in Fox v Warde [1978] VR 362 by McInerney J. He concluded that it was not necessary that any occupation of premises be permanent, although a mere transitory use of premises would not be sufficient to constitute occupation. He also concluded that use on one occasion only would not normally be sufficient in itself to demonstrate that the person so using the premises was an occupier. He also determined that it was not essential that the occupation be exclusive of others, and that repeated use of premises might go a long way towards showing that a person was an occupier (in that case he was dealing with a case involving an alleged prostitute).
McInerney J also referred at 367 to the concept of control when he said:
"The same conclusion was reached in the case of R v Tao, [1976] 3 WLR 25; [1976] 3 All ER 65 where the Court proceeded on the view that the occupier was to be regarded as someone who, on the facts of a particular case, could fairly be said to be 'in occupation of premises in question so as to have such a requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities'. "
In Madrassa Anjuman Islamia of Kholwad v Municipal Council of Johannesburg [1922] 1 AC 500, Viscount Cave said at 504 when delivering the judgment of the court:
"The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, as when occupation is made the test of rateability; and it is in this sense that it is said in the rating cases that the occupation of premises by a servant, if such occupation is subservient and necessary to the service, is the occupation of his master: At other times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time, as where a person is said to occupy a seat or pew, or where a person who allows his horses or cattle to be in a field or to pass along a highway, is said to be the occupier of the field or highway for the purpose of s 68 of the Railway Clauses Act, 1845:; . Its precise meaning in any particular statute or document must depend on the purpose for which, and the context in which, it is used."
The accused described Buchanan as a friend. Buchanan indicated she had very recently commenced a relationship with the accused. He visited her at the Kingsley Avenue premises about once per week, and, I infer, stayed overnight on those occasions. There was no suggestion that that was a fixed arrangement in that he stayed, for example, every Tuesday night, or that any arrangement which did exist had been in place for a long time. There was no evidence the accused had any proportion of his clothes or belongings there, save for the drugs found. What was found was not hidden in the sense it might indicate the accused was there so regularly he might have felt comfortable hiding drugs there.
In my view, the facts of this case demonstrate no features which might support a finding that the accused was an occupier for the purpose of the SW Act, s13. As a consequence, s13 conferred no entitlement upon him to observe the search conducted or any part of it. It must follow that, insofar as the accused is concerned, any evidence gathered in respect of him during the search was not tainted by impropriety or illegality such as to invoke the application of the Act, s138.
The interview
The recorded interview of the accused by police lasted for five minutes. The accused was cautioned. He initially seemed vague about whether the interview was being conducted on the same day as the police search. He then accepted it was the same day, and was shown the warrant. He took time to examine it and checked when it was issued. He answered a number of questions and then the following exchange occurred:
"ASYeah. Okay. While police were at your address we located like I said items of interest. I'm just going to go through what we've located. Okay.
AA … Can I add at this point I do not wish this interview to continue.
AS Yep you certainly can. You don't wish
AA No.
AS to discuss anything that was located at
AA No.
AS your address or in relation to 2, 27.
AA I'm just too, too fragile to go on with this at this point.
ASYeah. Yeah that's fine. In that case, have you got anything else you wish to say.
AA No not really.
ASNo. Do you have any complaints in relation to the way you've been treated today.
AA No
AS No.
AS No I just
S …
AS just respectfully decline to continue with the interview that's all.
AS No, yeah that's fine. That's fine
S Okay.
AS Sorry did you wish to say …
SNo look there was one question I wanted to ask but obviously you've said that you didn't wish to ask so I'll ask it and you say like … I'll just, I just want to be clear like – there was a number of drug items that were found at unit 2 of 27 Kingsley which I believe is Tamika's address. Do those drugs belong to you or do those drugs belong to Tamika.
AA Me.
S Okay.
AA None of it belongs to Tamika.
S Okay.
ASDo you, do you wish to explain further in relation to the drug items that related, ah that were found at 2 of 27.
AAAny drug items that were found at 2, 27 Kingsley were mine for personal use.
AS For personal use. Can you tell us what, what was, what was there.
AA Dunno.
AS If I was to show you
AAI, I couldn't tell you exactly but whatever was there was mine and yeah that's it.
AS Yeah. If I was to show you the items, do you want to go through the items.
AA No.
AS No. So yep. In that case we'll suspend the interview. The time
S We'll conclude the interview.
AS Conclude the interview sorry. Thank you. It's six thirty p.m."
Counsel for the accused submitted that the police had, by continuing to question the accused after he had indicated he did not wish to answer any questions, infringed his right to silence, and had therefore committed an impropriety. That impropriety was sufficient to enliven s138. The impropriety was such that the evidence should be excluded. In the event that the Court did not accept that submission, then, by reference to s90, it would be unfair to allow the admissions made by the accused to be admitted into evidence.
Dealing with the first submission about an impropriety, there is no doubt the accused told police he did not wish the interview to continue. He said he was too fragile to go on with the interview. He gave no further explanation as to why. There was no suggestion he was ill, sleep deprived or perhaps affected by drugs. The point at which he made the statement came when police began questioning about what they had actually found, rather than asking general background questions. There can be no doubt that after that, Constable Smith asked a question about ownership of the drugs found. However, rather than maintaining his position that he did not wish to continue, the accused answered the question and then went on to volunteer further information. I have had an opportunity to watch the recording. The manner of the interviewing officers was calm. There were no raised voices or hectoring attitude. There can be no suggestion the accused was under any pressure from police or that he was under duress. That portion of the interview which is impugned is extremely short.
I accept that police officers should learn that no means no, and that they should not persist with questioning as Constable Smith did. However, if it could be suggested what he did amounted to an impropriety, and I am not satisfied that it does, then by reference to s138, the admissions made by the accused are highly probative, the evidence is important in the proceedings in that it contains admissions to ownership of drugs found, the offence with which the accused is charged is a serious offence and the impropriety was not grave given the circumstances I have outlined. It is unlikely any other proceeding might arise in respect of Constable Smith's actions.
I would not exclude the interview by reference to Constable Smith's questioning at the end of the interview.
Is s90 enlivened? Counsel for the accused did not identify on what basis she asserted it would be unfair to admit the evidence of the admissions made by the accused in his interview. I can only infer that it was for the same reasons articulated in support of her submission that an impropriety had occurred. As I have already said, the accused made an admission as to ownership of the drugs found at the Kingsley Avenue premises. When he did so, he volunteered information, as opposed to being pressed by repeated questioning to provide information. There was no evidence, save for his comment about being fragile, that his physical or mental condition at the time of the interview might render his admissions somehow unreliable. There can be no suggestion he was under any form of duress.
I am not satisfied in all the circumstances that it would be unfair to the accused for the evidence in the form of the interview to be excluded.
Outcome
The application of the accused to exclude evidence of the search and the subsequent police interview should therefore fail.
0