Tasmania v Bott - [2015] TASSC 13

[2015] TASSC 13

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Bott [2015] TASSC 13

PARTIES:  STATE OF TASMANIA
  v
  BOTT, Justin Raynor

FILE NO:  395/2014
DELIVERED ON:  2 April 2015
DELIVERED AT:  Hobart
HEARING DATE/S:  18 – 20, 23 March 2015
JUDGMENT OF:  Wood J

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.

Evidence Act 2001 (Tas), s 138.
Search Warrants Act 1997 (Tas), s 13(1).
Tasmania v Seabourne [2010] TASSC 35, considered.
Aust Dig Criminal Law [2684]

REPRESENTATION:

Counsel:
             State:  B Wagg
             Accused:  P Sullivan
Solicitors:
             State:  Acting Director of Public Prosecutions
             Accused:  P Sullivan

Judgment Number: [2015] TASSC 13
Number of paragraphs: 45

Serial No 13/2015
File No 395/2014

STATE OF TASMANIA v JUSTIN RAYNOR BOTT

REASONS FOR RULING WOOD J

2 April 2015

The accused, Justin Raynor Bott, has pleaded not guilty to trafficking in a controlled substance namely cannabis. A preliminary hearing was conducted before empanelment of a jury pursuant to the Criminal Code, s 361A, to determine whether evidence ought to be excluded. I ruled that the evidence should not be excluded. These are my reasons.
On 9 September 2014, officers from Western Drug Investigation Services attended the accused's premises at Wenvoe Street, Devonport to search for cannabis and products relating to the cultivation of cannabis. The accused is a motor vehicle repairer and when the police arrived he was working inside a garage or workshop complex in a spray booth. Det Sgt Keiselis, the designated warrant holder for the search, spoke to the accused. They went inside his house and Det Sgt Keiselis showed the accused the warrant. They sat at the kitchen bench, where the accused was asked some questions which Det Sgt Keiselis had written out beforehand. These questions related to the presence of syringes and firearms on the property, and whether the accused had amounts of cash on the premises or any items he wished to produce. Det Sgt Keiselis noted the answers given by the accused. When Det Sgt Keiselis asked him whether there were any items he wished to produce, the accused stated, "No mate. I don't want to say anything from this point on." The relevant portion of the notes is as follows:
"SK: Introduced to Justin Bott …
Handed warrant – appeared to read)
SK: (to JB) Have you read the warrant? (Explained as well)
JB: Yep, I guess so.
SK: Do you have any questions in relation to the warrant?
JB: No
SK: Are there any firearms on the property>
JB: No mate.
SK: Are there any syringes that we need to be aware of?
JB: Nope.
SK: Are there any amounts of cash secreted on the property?
JB: Nope.
SK: Are there any items you wish to produce?
JB: No mate. I don't want to say anything from this point on.
SK: Who do the drug related items belong too? (Not asked)
Question not asked – general talk only –
I/V terminated 1333hrs.
Requested that he
Phone a solicitor – Grant @ 1415hrs – time of request.
- Organised after school care instead -
Paul Sullivan – phoned 1416hrs left Msg
Kids – work – monster trucks – sydey
ADHD – Nitro circus – Grey Nomad – Qld Macay:
phonecall received 1430hrs – Paul Sullivan."
The notes taken by Det Sgt Keiselis reveal that the officers arrived at 1.20pm, that the interview was terminated at 1.33pm and that, after this time, there was general discussion.
They also record that the accused requested that he phone a solicitor and that request was "granted" at 2.15pm. Mr Sullivan, his solicitor, was not available and the accused left a message. The notes record that a phone call was received from Mr Sullivan at 2.30pm. The notes refer to the topics of general discussion, such as "Nitro Circus" and "monster trucks". It is unclear, having regard to the evidence of Det Sgt Keiselis and the accused, whether this occurred before 2.15pm, some time between the calls to Mr Sullivan, or after the last call.
Meanwhile, other officers cleared the premises, and then set about searching the property, including the workshop and garage complex. Det Snr Const Benjamin Elliott and Snr Const Amber Schnierer searched inside the house, specifically the bedrooms and the kitchen and lounge area. The accused was sitting at the kitchen bench during the search of the kitchen. There, Snr Const Elliott checked the accused's mobile phone and lap-top computer.
Det Const Peter Daw and Det Snr Sgt Darren Woolley searched the garage complex. During the search of a small office area at the rear of the workshop, a set of electronic scales and a box of snap lock bags were discovered. There was a small amount of vegetable matter, which looked like cannabis leaf, on the scales, and in an area nearby, a transformer ballast was also found. Behind a notice board, officers found a sheet and a locked door and, through the door, a number of concealed rooms. Two were set up as hydroponic grow rooms. In one of them were pots containing 10 immature cannabis plants. In another room was a hydroponic tent and, inside, approximately six more mature cannabis plants. Other items were found including grow lights, ballasts, timers and a fan. The officers also found a polystyrene box containing approximately one kilogram of cannabis bud, and approximately 16 grams of cannabis bud in a snap lock bag.
There was undisputed evidence that Det Sgt Keiselis left the accused in the kitchen a number of times in order to see what was happening with the search in the workshop complex. On each occasion, before leaving the accused, he spoke to an officer who was present in the kitchen, Snr Const Schnierer or Det Snr Const Elliott, asking them to stay with the accused, or asking whether they could watch him.
A video walk through was recorded of the workshop focussing on the office area and the concealed rooms where cannabis and the cannabis plants were discovered. That commenced at 2.26pm and went for approximately eight minutes.
After the video recording was made, the hydroponic set-up, cannabis plants and cannabis bud were seized. They were taken to the exhibits officer for the search, Snr Const Schnierer. She set up in an area of the workshop complex adjacent to the concealed area to receive the exhibits. She recorded the exhibits on a property seizure record, and details including who located the items.
The accused was arrested at his property for offences involving cultivation of cannabis contrary to the Misuse of Drugs Act 2001and taken to the Devonport Police Station, where he was interviewed. During the interview, Det Sgt Keiselis read back to him the questions asked and the answers given at the house. The accused signed the notes as read to him but indicated that he did not wish to be interviewed and the interview was terminated.
The defence submitted that the conduct of the officers undermined the accused's right to observe the search of his premises, pursuant to s 13(1) of the Search Warrants Act 1997. Section 13(1) entitles an accused to be present during a search carried out under that Act:
"(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."
The defence particularly relied upon the fact that the police conducted an interview with the accused inside the house, and that, at the same time and thereafter, a search was conducted outside in the workshop. The defence relied upon State of Tasmania v Seabourne [2010] TASSC 35 for the contention that the practical effect of conducting an interview away from the place where the search was being conducted was to undermine his entitlement pursuant to s 13(1). It was submitted that there had been impropriety tainting the whole of the search, and that the evidence obtained from the search should not be admitted: Evidence Act 2001, s 138(1).
The defendant gave evidence that he did not think he was allowed to leave the house and observe the search. He stated that Det Sgt Keiselis did not inform him that he had a right to watch the search; he thought he had to go inside with Det Sgt Keiselis and stay there. The conduct of the police, particularly the fact that they stayed with him at all times, gave him the impression that he had to stay in the kitchen, that he was not free to move around and that, in his words, he was "under arrest without handcuffs". The accused referred to the fact that every time Det Sgt Keiselis left him, a police officer was asked to watch him.
The evidence from the State's witnesses included evidence from Det Sgt Keiselis that he had informed the accused, at the time he showed him the warrant, that he had a right to observe the search. Further, the accused did leave the kitchen on more than one occasion and observed the search taking place in the workshop area.
It was submitted by Mr Wagg on behalf of the State that there had been no impropriety but, if there had been, it would be limited to questioning taking place at the time of the search. He submitted that the likelihood was that the cannabis and other items had not been found before the conclusion of the questioning. At most, only the scales and snap lock bags had been discovered by that time. If any evidence was to be excluded, it could be limited to the evidence of the scales and the snap lock bags. The grow rooms were discovered after the questioning had concluded.
The question is whether the conduct of the police improperly undermined the accused's right to observe the search of his premises. In assessing this question, there a number of areas of factual dispute that need to be resolved:
·     Whether Det Sgt Keiselis told the accused at the outset, when showing him the warrant, that he was entitled to view the search.
·     Whether the accused stayed inside the premises throughout the search (defence case) or left the kitchen and moved outside and, at one stage, observed the search of the workshop complex in progress (State's case).
·     Whether the conduct of the police promoted or gave rise to a belief on the part of the accused that he was not free to come and go or watch the search because he was "under arrest without handcuffs on". If the accused held such a belief, the question is then whether, given the circumstances, that was a result of the conduct of the police.
The accused bears the onus of establishing that the evidence was obtained improperly or illegally. If the onus is discharged, it is for the Crown to establish that the desirability of admitting the evidence outweighs the undesirability of admitting it: R v Salem (1997) 96 A Crim R 421.

Whether Det Sgt Keiselis told the accused that he was entitled to view the search

Det Sgt Keiselis' evidence was that he would have informed the accused that he was entitled to view the search. His evidence was that he met the accused in the driveway, where he introduced himself and told the accused that police were there to search his premises. He asked if there was somewhere they could go and grab a seat, and he would explain what was going on. The accused entered the residence, Det Sgt Keiselis followed, and they sat down in the kitchen area. Det Sgt Keiselis showed him the warrant and the accused appeared to read it. Meanwhile, the other officers were clearing the residence and the premises as a preliminary standard procedure before the search. This procedure includes checking that there are no other people on the premises. Det Sgt Keiselis said that he explained the warrant to the accused and asked him if he had any questions in relation to the warrant. Det Sgt Keiselis gave evidence about what he would typically say in explaining the warrant:
"…in short buddy, the warrant gives us the right to search your entire property and anything that's on that property, which includes sheds, outbuildings, cars, persons that might be present. In saying that as a person present on the search you've got a right to be able to observe that search, just so long as you don't obstruct or impede us. The warrant gives us the right to search for property or evidence in relation to any of the offences that have been disclosed on the warrant. If during the course of the search we locate any other items that we suspect relate to other offences, we can seize those items for evidentiary purposes if we need to do so. We are also entitled to use reasonable force if we have to and that includes breaking things open, going through walls, going through doors, cutting locks [off] things, if we need to. Now I'm not saying that that's going to occur on this occasion, but those are some of the rights that are available to us as officers executing the warrant."
Det Sgt Keiselis was 95 per cent sure that he would have said words very, very close to that effect. While he did not specifically recall mentioning the right to observe the search, it is something he has done countless times before. He gave evidence that this procedure has been standard for some time, since some case law on this point. Det Sgt Keiselis gave evidence that he made a note that the warrant was explained, which was a shorthand reference to his mentioning of the right to be present during the search.
Det Snr Sgt Woolley gave evidence that it has been usual practice over the past 12-14 months for Western Drug Investigation Services to inform occupiers that they have the right to view a search.
Snr Const Schnierer gave evidence that she observed Det Sgt Keiselis explain the warrant to the accused. She said the accused looked at the warrant. She heard Det Sgt Keiselis give the accused a chance to view the search.
The evidence of the accused was that Det Sgt Keiselis did not inform him that he had a right to observe the search. Indeed, he did not recall an explanation regarding a search of premises of the kind set out at [18] above. He recalled being asked the questions that had been written out by Det Sgt Keiselis.
I accept that Det Sgt Keiselis gave his usual explanation regarding the right to observe the search. It was heard by Snr Const Schnierer. He made a contemporaneous note that he gave an explanation about the warrant (see [2] above, "Explained as well") and that was read back in the interview with the accused. While the note itself is not informative about what was said, I accept Det Sgt Keiselis' evidence that the note was a shorthand reference to an explanation which included informing the accused of his right to observe the search. I also accept that the explanation did not make an impression upon the accused at the time it was given, and I accept his evidence that he could not recall hearing it.
My own impression of Det Sgt Keiselis' usual explanation, if delivered in the same style and at the same rapid pace as delivered in his evidence, is that there is every prospect that the utterance that the accused had a right to observe the search would be lost on an occupant in the context of the entirety of the information provided. The right was not highlighted. It was not elaborated upon. It is an important right and it should be conveyed effectively. If it is not, it is a factor to be taken into account in having regard to whether there was impropriety. That is not to suggest that the Search WarrantsAct requires police to inform an accused that they are entitled to observe the search: Seabourne at [24]. However, if the circumstances required communication of the right in order to counter what may otherwise be an undermining or thwarting of the right, then the effectiveness of the communication will be taken into account.

Did the accused leave the house during the search?

The accused gave evidence that he did not leave the house and go out to the workshop area, and that, contrary to the evidence of a number of officers, he did not assist police to open a shipping container. However, at the end of cross-examination, he was asked whether he went outside to help with opening the shipping container and he replied, "yeah, I remember that". The accused's evidence was that he did not observe any aspect of the search of the workshop area, but at the end of the search he asked the police if he could lock up. He locked up the workshop, probably locking two doors. By then, the police officers searching that area had left.
Det Sgt Keiselis gave evidence that, after the accused's phone call with Mr Sullivan, he left the house with the accused, who came to watch the police dismantle the hydroponic set-up. The accused was present in the workshop while that occurred. Det Sgt Keiselis said that he was present in the workshop with the accused for the last 20 minutes or half an hour of the search. Further, at some stage it was necessary to get into a locked shipping container in the yard, officers had trouble opening the doors and the accused assisted with this task. Det Snr Const Elliott gave evidence that he observed the accused with Det Sgt Keiselis in the workshop area after the video walk through.
Snr Const Schnierer gave evidence that towards the end of her work recording exhibits, she saw the accused in an adjacent room of the workshop with Det Sgt Keiselis. Once the exhibits were taken out, she approached the accused, read through the property seizure receipt with him and asked him if he wished to sign it. The accused signed the document there. The accused's evidence was that he recalled that he signed this document at the police station.
Det Snr Sgt Woolley noticed the accused "packing up or doing something" in the spray booth for the final 15-20 minutes of the search. Det Const Daw gave evidence that the accused was in the workshop towards the completion of the search, when exhibits were being processed. He said he was "mucking around with whatever was on the bench and just walking around".
Det Const Daw gave evidence that he went into the residence and obtained keys from the accused to unlock the shipping container. He returned to the house and asked the accused to assist because he was having some trouble opening the container, but he could not recall in evidence what the trouble was.
The accused's concession that he assisted police undermined his evidence that he did not leave the house. I find that, at one stage, he left the house to assist the police to open the container. However, in assessing what this conduct reveals about his entitlement to observe the search, it must be borne in mind that, according to the evidence from the police officers, the accused was complying with a police request rather than exercising his right to observe the search.
The remaining area of dispute is as to whether the accused was in the workshop area in the company of Det Sgt Keislis, observing the search. On the accused's case, he only went to the garage area with Det Sgt Keiselis to lock up after the others had left. I find that he did not observe part of the search. I note that, even on the State's case, at the time the accused was said to be present, the search was effectively over, the officers were dismantling the hydroponic set-up and recording the items that were seized. I found the evidence that the accused was present unconvincing. It lacked detail about what the accused was doing during the time he was present. From the officers' point of view, it was not an observation that held any particular significance until a short period before the preliminary hearing, such that it would have made an impression, and there is a risk of error in their memory of this aspect of the events. The exception about the unconvincing quality of the police evidence is the evidence of Snr Const Schnierer as to the accused signing the property seizure receipt. It was the kind of detail that Snr Const Schnierer would recall, given the tasks she was performing at the premises. By contrast, the accused's recall of signing the document at the police station seemed uncertain. Perhaps the accused went outside as the police officers were in the process of concluding the procedure of seizing exhibits and departing, and it was then that he signed the receipt. It is not necessary for me to decide whether that was what happened. The finding I have made that he did not observe the search of the workshop is sufficient for the purposes of the ruling.

The effect of police conduct

The accused gave evidence that when Det Sgt Keiselis left the room he said to Det Snr Const Elliott, "are you right to watch him". The accused said that, consequently, he did not think he was free to move around. There was no dispute that Det Sgt Keiselis did make a remark to that effect. His evidence was that he would have said something like, "I'm just going to duck out guys, can you just keep an eye on Mr Bott."
Snr Const Schnierer gave evidence that Det Snr Sgt Woolley came in and asked to see Det Sgt Keiselis. She recalled that Det Sgt Keiselis asked her, "were you right to – to stay with the accused".
Det Snr Sgt Woolley gave evidence that he was asked by Det Sgt Keiselis to stay with the accused.
Det Sgt Keiselis gave evidence about police practice in this regard. He said it was an "evidentiary and safety thing". If an occupant was to be left alone, it might allow the destruction of evidence, or access to weapons. The accused, he said, was free to roam around, he was not under arrest, but somebody had to accompany him. The evidence from Det Snr Const Elliott was that it was standard procedure to have a police officer stay with the occupant at all times during the search.
The accused gave evidence that he asked to make a phone call to his lawyer because, "I thought I had to. I thought it was my like one phone call or something." Before leaving the house he asked police if he could lock up. He did so because he had his tools in the shed. He was asked in evidence in chief, "Well it's your house, can't you just go and lock up?" His reply was that he thought he was in trouble, and he thought he had to ask permission for everything. It is unclear, but according to the evidence he may have been under arrest at that point, in which case his request to lock up is not telling. In that case, it may be attributable to his status of being under arrest, rather than the conduct of the police in other respects.
It is not disputed that the accused asked Det Sgt Keiselis if he could make a phone call to his lawyer. Det Sgt Keiselis agreed that the accused asked at some point if he could ring his lawyer and he said, "yes, absolutely". He agreed that may have occurred after he returned and mentioned that he had found more than a kilogram of cannabis head.
I accept that the accused believed that he should stay in the kitchen and that he was not free to move about, leave the premises if he wished or go to the workshop. It seems to me that a number of factors would have contributed to this belief. I expect that one of the factors was his own realisation that he was "in trouble", and his awareness that he had a quantity of cannabis bud, cannabis plants and a hydroponic set-up secreted in his workshop. There is no issue that he held such an awareness. I expect, given his realisation and awareness, it would be natural for him to be deferential toward the officers present, partly at least to maximise his prospects of a more lenient response from police. Those factors are not sheeted home to the conduct of Det Sgt Keiselis. However, also contributing to this belief was the conduct of the police in holding an interview away from the search that was occurring outside and at a time which coincided with the search. Further, Det Sgt Keiselis' conduct in granting the accused his request to make a phone call suggested to the accused that an indulgence in this regard was being extended to him. The question can be asked: why would that request need to be "granted", when the accused was perfectly entitled to make a phone call using his own phone in his own home? Finally, the language employed by Det Sgt Keiselis in asking police officers to stay with the accused suggested strongly to the accused that he had to stay where he was, in the kitchen, away from the search. I am conscious that Det Sgt Keiselis did not say so in explicit terms. It was a request merely to remain with the accused, not to remain with the accused and stay in the kitchen. However, that was not appreciated by the accused, and to him, given the circumstances he was in, the request conveyed that he had to stay where he was. The question is whether for the purpose of the Evidence Act, s 138(1), the evidence was improperly obtained.

Improperly obtained?

Section 138(1) of the Evidence Act provides:
"(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."
Undoubtedly in this case, there is conduct that falls short of optimum practice. There were a number of occasions when it should have been apparent that, in the circumstances, the accused may not have appreciated his right to observe the search and that his movement was not curtailed. These occasions were the questioning, the request to make a phone call, his remaining inside the house when nothing of note was happening at a time when a search of some significance was going on in his workshop, and the requests made by Det Sgt Keiselis to other officers to remain with him. There were opportunities for the right to be confirmed, to explain that he had such a right or that his movement was not curtailed. However, the fact that more could have been done is not the test. The question is whether the conduct in question was clearly inconsistent with "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": Robinson v Woolworths Ltd (2005) 158 A Crim R 456, per Basten JA.
In assessing whether the conduct was clearly inconsistent with those minimum standards, I take into account the following matters. At the time of the questioning, there was a search occurring in the kitchen and the defendant was present and had the opportunity to observe it. It may be borne in mind that the Search Warrants Act does not preclude police conducting a search of the premises in more than one location. While Det Sgt Keiselis ought to have avoided language which suggested to the accused that his freedom of movement and access to his phone were curtailed, he did not know that the accused had not heard that he had a right to observe the search, and he did not know that the accused held a belief that he could not leave the house. From Det Sgt Keiselis' point of view, the accused was exercising control, including exercising his right to silence, and making his wishes known (such as wishing to speak to his lawyer, and making arrangements for his son's child care).
In Seabourne, the occupant was interviewed by a police officer away from the search of his house whilst the search was in progress. It was concluded that there had been impropriety in conducting an interview at the same time as the search, away from the place where the search was being conducted. The reasons for reaching that conclusion are set out at [25] and [28]:
"25 On the other hand, I can see that the practice of conducting an interview at the same time as the search can create an impression, and in fact did create the impression in the accused's mind, that he ought to remain with the police during the questioning process. For this reason it is undesirable that an interview take place at the same time as the search away from the place where the search is being conducted. I do not consider the conduct of police amounts to a breach of the Search Warrants Act, s13, but it had the practical effect of undermining the accused's entitlement provided for in that section. There were steps that could have been taken to offset these consequences. Detective Orme could have informed the accused of his entitlement under s13 and offered to delay the interview until after the search.
…
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."
This case is somewhat different to Seabourne. The interview with the accused was merely several questions of a preliminary nature that lasted approximately 13 minutes, a short period compared to the duration of the search of the workshop. Here, the accused was informed of his right to observe the search, unlike the facts in Seabourne. However, Seabourne is but one example of how the right to observe a search could be undermined by police conduct. Conduct of a different type which impinges on that right may also be regarded as improper. Even short questioning held away from the search may, depending on the circumstances, undermine the right in s 13(1). The risk is that it may send a message that the right to observe the search is a qualified right or less important than other police objectives, such as interviewing or keeping out of the way, enabling the search to proceed efficiently. On a related matter, ascertaining whether adequate steps have been taken to offset conduct undermining the accused's entitlement is also a case by case question. A formulaic reference to the right, buried in a mass of other information, may well be found wanting. I return to the question of whether, in the circumstances of this particular case, the conduct of the police undermined the right that the accused had to observe the search being conducted. I conclude that while the conduct unfortunately suggested to the accused, with his mindset, that he had to remain in the house while the search was going on elsewhere, I am unpersuaded that there was improper conduct in the obtaining of evidence.
I wish only to add, in light of the Crown's submissions, that if there had been a finding of improper obtaining of evidence, then all of the evidence of the search would be tainted. In this case, the conduct under scrutiny extended beyond the questioning and, as mentioned, there was the potential for the police questioning to suggest that he was not free to observe the search, even after the questioning had concluded.
It is unnecessary for me to undertake the evaluative exercise in s 138 and assess whether the undesirability of admitting the evidence is outweighed by the desirability of admitting it. It is for these reasons I concluded that the evidence of the search should not be excluded.