Tasmania v Billinghurst (No 2)
[2018] TASSC 4
•22 November 2017
[2018] TASSC 4
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Billinghurst (No 2) [2018] TASSC 4
PARTIES: STATE OF TASMANIA
v
BILLINGHURST, Garry Maxwell
JONES, Adam Arnold
LEAMAN, Christopher Adam
FILE NOS: 341/2013
420/2013
86/2014
DELIVERED ON: 22 November 2017
DELIVERED AT: Hobart
HEARING DATES: 24-27, 30,31 October, 1-3, 6-10, 13-17, 20-24,
27-30 November, 1, 4-8, 11 December 2017
JUDGMENT OF: Estcourt J
EDITED VERSION OF RULING DELIVERED ORALLY
CATCHWORDS
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Whether police conduct undermined entitlement of occupier to observe search – Whether evidence of drugs and drug paraphernalia found during search should be excluded – No such impropriety found – Application to exclude evidence declined.
Search Warrants Act 1997 (Tas), ss 7, 13, 19.
Evidence Act 2001 (Tas), s 138.
State of Tasmania v Seabourne [2010] TASSC 35; Tasmania v Bott [2015] TASSC 13, considered.
Aust Dig Criminal Law [2683]
REPRESENTATION:
Counsel:
Crown: A Shand, A Norton
Mr Billinghurst: J Crotty
Mr Jones: T Kovacic
Mr Leaman: K Baumeler
Solicitors:
Crown: Director of Public Prosecutions
Mr Billinghurst: Crotty Legal
Mr Jones: Legal Aid Commission of Tasmania
Mr Leaman: Legal Aid Commission of Tasmania
Judgment Number: [2018] TASSC 4
Number of paragraphs: 24
Serial No: 4/2018
File Nos: 341/2013
420/2013
86/2014
STATE OF TASMANIA v GARRY MAXWELL BILLINGHURST,
ADAM ARNOLD JONES and CHRISTOPHER ADAM LEAMAN (NO 2)
REASONS FOR RULING DURING TRIAL ESTCOURT J
22 November 2017
The accused Jones (the accused) seeks the exclusion of the evidence of a search, and the items found, at 560 Mount Lloyd Road, Mount Lloyd from about 6am on 4 September 2013, on the basis that he was not permitted to observe the search. I have taken the evidence of officers of Tasmania Police and the accused relevant to the objection on a voir dire, and I have been provided by counsel with written submissions on the issues arising under s 13 of the Search Warrants Act 1997 and s 138 of the Evidence Act 2001.
Section 13 of the Search Warrants Act provides:
"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."
The relevant part of s 138 of the Evidence Act provides:
"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."
The right of an occupier provided by s 13 of the Search Warrants Act has been referred to as an important safeguard for citizens: Tasmania v Seabourne [2010] TASSC 35 per Wood J at [28]. Her Honour there also observed that she considered it at odds with the role of law enforcement to impede an occupier's entitlement to observe a search being conducted. The section was again considered by Wood J in Tasmania v Bott [2015] TASSC 13.
As submitted however by counsel for the State, Ms Shand, the right of an occupier to observe a search cannot be unlimited. Section 13(3) of course expressly provides that the right does not prevent police from searching in multiple areas of a property simultaneously. Nor is it an entitlement that endures irrespective of the behaviour or reasonably anticipated behaviour of the occupier. It must be envisaged that a person may not be able to observe the entirety of a search, given that police may search multiple areas of premises and that occupiers may not always be co-operative, (or so assessed, particularly prior to a forced entry of those premises).
Mr Kovacic, on behalf of the accused, correctly identifies that the two key issues are whether the police allowed the accused, as the occupier of 560 Mount Lloyd Road, to observe the search of his premises, and if not, whether that evidence should be excluded on the basis that the desirability of admitting the evidence is outweighed by the undesirability of admitting it.
Mr Kovacic submits, on the authority of Tasmania v Seabourne (above) and Tasmania v Bott (above) that a failure to allow the accused to observe the search is contrary to the Search Warrants Act, and is thus an impropriety and/or a contravention of an Australian law within the meaning of s 138 of the Evidence Act.
I note that in Seabourne Wood J observed that the Search Warrants Act does not require police to inform an accused that they are entitled to observe the search or to facilitate their presence during the search. Nonetheless, even if the conduct of police does not amount to a breach of that Act, it may still have the practical effect of undermining the accused's entitlement provided for in s 13, and thus amount to a relevant impropriety for the purposes of s 138.
I note that the words "improperly" and "impropriety" in s 138 are not defined and thus should be given their ordinary meanings, albeit viewed in the particular context, of "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": see Robinson v Woolworths Ltd [2005] NSWCCA 426, 158 A Crim R 456, per Basten JA at [16].
Mr Kovacic submits that the evidence of the accused establishes as follows. That on 4 September 2013 police officers attended the property at 560 Mount Lloyd Road intending to search the property as they were entitled to do pursuant to a valid search warrant. That the Special Operations Group (SOG) were utilised to force entry into the main dwelling. That the accused was in the main bedroom. That he was forcibly restrained. That he was moved initially to the deck and then to another room on the deck. That he remained in that room for the day. That he was not permitted to freely observe the search. That he was handcuffed for much of the day. That he was only allowed to leave the room to go to the toilet and allow officers access to the dog pen. That the search took some 12 hours.
Ms Shand submits that the evidence of the police officers called on the voir dire establishes that the accused was not handcuffed and restrained in a room for the duration of the search, or even the majority of it.
Relevantly, Ms Shand submits that the evidence of the police officers called on the voir dire establishes as follows. That the search warrant was executed by Tasmania Police on 4 September 2013. That upon entry the accused was restrained. That this occurred for safety reasons, following a threat assessment having been undertaken. (The use of such force is permitted by s 7 of the Search Warrants Act and the rapid entry to the premises was permitted by s 19(2).) That the warrant was signed over to Detective Sergeant Cosentino at 6.10am. That at that time the accused was in the master bedroom of the house. That the restraints were removed shortly after. That Detective Sergeant Cosentino showed the search warrant to the accused, gave him the opportunity to read it, and asked him if he had any questions in relation to the warrant. That the accused was asked if he had any drugs, firearms, ammunition or cash that he wished to produce. That he was advised by Detective Sergeant Cosentino of his right to observe the search, and that police would be present with him throughout the search. That the accused was inside the house during the search of the house, was observed by Senior Constable Anna Lang and had a conversation with Detective Senior Constable Nicholas Boden about some vials of liquid and some capsules found in the kitchen, and with Detective Constable Fiona Howard about a taxidermy pet dog in an area between the living room and the dining room. That the accused then sat on the deck at the rear of the house whilst the outside areas of the property were searched. That he observed a bus load of trainees from the Police Academy arrive and a line search being conducted, and he made comments about it to Senior Constable Adam Eastley. That at 6.30pm, at the conclusion of the search, the accused was arrested and removed from the house. That the accused was later interviewed by police at the Hobart police station and whilst he declined to make any comment in the interview he said he had no complaints "at all" about his treatment by police that day.
Mr Kovacic submits that whilst the accused was present at the property he was not allowed to view the search in any real sense. He submits as follows. That the accused was arrested in the morning and was restrained. That he remained restrained for the day and kept away from the view of the search. That Tasmania Police contravened s 13 of the Search Warrants Act in doing so. That they could easily have allowed him to view the search. That Tasmania Police are well aware of their obligation to allow the accused to observe the search. That because of this the desirability of admitting the evidence does not outweigh the undesirability of admitting it and the evidence should be excluded.
Mr Kovacic makes the point that Tasmania Police have been on notice since Seabourne of the entitlement of occupiers to observe searches and that this aggravates the gravity of the impropriety. I would agree, were I satisfied that the police officers concerned, particularly the warrant holder, did in fact impede the accused's right to observe the search, even if the accused had been told of the right minutes after being the subject of a forced entry by SOG members armed with machine guns, and forced to the floor on his stomach in his underpants in his bedroom where he had been asleep with his wife and two-year old niece, and handcuffed.
Ms Shand submits that I should accept the evidence of the police officers and that even though an occupier may feel that his or her ability to observe the search or move about the premises is limited, that does not necessarily amount to any impropriety or illegality on the part of police. She relies for that submission on the authority of Bott at [42].
I do accept the evidence of the police officers called on the voir dire on what I regard as critical issues, and while the accused was obviously restrained for a period and limited in his movements generally during the search, I do not in the end regard the actions of the police as disproportionate to the situation. It is a borderline case and the objection was appropriately taken by Mr Kovacic, but on his own evidence the accused was aware of the search going on inside the house and the partially open and partially enclosed deck where the accused said he spent most of the day was not an inappropriate area for him to be housed during the external search of the property. That is particularly so given the accused's evidence on the voir dire that he was not particularly interested where the police were searching.
Ultimately I do not regard the conduct of the police officers involved as amounting to an impropriety or a breach of s 13 of the Search Warrants Act. I do not regard the question of whether the accused was informed of his right to observe the search or the point in time at which he was arrested as being of critical importance. As is clear from Seabourne, the real question is whether the police officers executing the warrant improperly impeded the accused's right. In my view they did not.
No doubt, although the accused had no complaint about the conduct of police officers on the day, he feels in retrospect that it may still have had the practical effect of undermining his entitlement provided for in s 13. I can understand that perspective but I disagree. I am of the view that, objectively regarded, the conduct of police was not unreasonable or inappropriate in the particular circumstances of the case. As Ms Shand submitted, the right is not unlimited and must yield to the setting and to the powers of police officers under ss 7, 13(3) and 19 of the Search Warrants Act. An occupier whose property is the subject of a large scale, simultaneous, multiple area search, and who has been assessed as a safety risk prior to the execution of the search warrant could not expect to be able to observe every aspect of the searches. To the extent that the accused was forced to the ground and his hands were restrained the police had power to use such force.
Had I concluded that there was a relevant impropriety or contravention I would have been required to consider whether I should exclude the evidence on the basis of the discretionary considerations under s 138 of the Evidence Act. The onus is on the accused to establish the illegality or impropriety: Fleming v The Queen [2009] NSWCCA 233, 197 A Crim R 282 at [19] per McClellan CJ; Tasmania v Salter [2007] TASSC 33 per Evans J at [3]. However if that onus is discharged, it is for the State to establish that the desirability of admitting the evidence outweighs the undesirability of admitting it: R v Salem (1997) 96 A Crim R 421.
Had I undertaken that exercise I would have been satisfied that the State had established the desirability of admitting the evidence. Any relevant impropriety or contravention could not have been regarded in all the circumstances as egregious, even if Detective Sergeant Cosentino did not inform the accused of his right to be present during the search and, in any event, the evidence is highly probative.
In particular, the evidence of drugs, cash, ammunition and drug related items being located at the accused's property, has significant probative value. It is evidence of the possession of drugs by the accused Jones, and is also evidence admissible against the other accused, Billinghurst and Leaman.
Moreover DNA matching the DNA of the accused Leaman is said to have been detected on a silver flask containing a number of snap lock bags filled with amphetamine and found concealed under an overturned tree stump. That evidence could establish a link between the accused Jones and Leaman, and Leaman's involvement with the drugs being stored at Mount Lloyd. That evidence would also be capable of explaining the meaning of conversations contained in intercepted telecommunications, as well as corroborating surveillance of the accused Jones and Leaman together at Mount Lloyd.
As Ms Shand submitted, s 138 requires a balancing exercise. That is, any impropriety or contravention of law is to be considered as against the public policy in ensuring that justice is done. As was said in Sims v Thomas [2007] TASSC 106, 179 A Crim R 412 by Evans J at [9], the fundamental concern raised by s 138 is the need to address the competing interests of obedience to the law in the gathering of evidence, and the enforcement of the law in respect of offenders. In this case, particularly given the serious nature of the crime charged, I would have regarded the interests of law enforcement as prevailing, notwithstanding the importance of the accused's right to observe the search of his premises.
I decline the application to exclude the impugned evidence.
0
6
2