Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Conviction - Possession of a prohibited drug with intent to sell or supply - Trial judge's discretion to exclude evidence obtained under a defective warrant - Application of the principles in Bunning v Cross - Admissibility of DNA evidence - Turns on own facts

Criminal Investigation Act 2006 (WA)

Misuse of Drugs Act 1981 (WA), s 23(1), s 24(1)

Misuse of Drugs Regulations 1982 (WA)

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427

Forbes v The Queen [2010] HCA Trans 045

Forbes v The Queen [2010] HCA Trans 120

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

McCleary v Director of Public Prosecution (Cth) (1998) 20 WAR 288

Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69

2 OWEN JA: The appellant was convicted after a trial by jury of one count of possession of the drug methylamphetamine with intent to sell or supply the drug to another person. He was sentenced to immediate imprisonment for a term of 6 years, with eligibility for parole. This is an application for leave to appeal against the conviction.

3 The appellant was charged on indictment with two counts of possessing a prohibited drug with intent to sell of supply. Count 1, to which the appellant pleaded guilty, related to 5.6 g of methylamphetamine. Count 2 (the charge that went to trial) concerned two quantities of methylamphetamine: 238 g at 21% purity and 202 g at 2.8% purity.

4 On 12 February 2008 the appellant was living at his parents' home in Balcatta. His own residence (in Westminster) was undergoing renovation and was unoccupied. On 12 February 2008 he was detained by police as he drove into the driveway of the Balcatta premises. A search revealed the drugs the subject of count 1 in a bumbag fastened around his waist. The search of the bumbag also revealed a small notebook containing names and dollar figures and $430 in cash.

5 Police entered the premises subject to a warrant issued under the Misuse of Drugs Act 1981 (WA). The warrant was undated, a matter which the appellant drew to the attention of the ranking police officer at the time the warrant was executed. A search of the lounge by police revealed a plastic bag in one of the cushions. Inside the bag was a piece of grey cloth wrapped around two snap lock plastic bags containing the drugs the subject of count 2. When they searched the garage, police located digital scales with traces of methylamphetamine, glass smoking implements and some snap lock bags, some consistent with the bags containing the drugs the subject of count 2.

6 The appellant was then taken to the Westminster premises where he showed police some smoking implements, further snap lock bags and a set of scales. Some of the bags and the scales had traces of methylamphetamine.

7 The grey cloth wrapped around the bags containing the drugs was tested. The expert evidence tendered at trial was to the effect that one side of the cloth displayed a mixed DNA profile consistent with having come

from at least three individuals. The appellant could not be excluded as a contributor to the mixed DNA profile. The other side of the cloth was also tested. Again, a mixed DNA profile consistent with having come from at least three individuals was recovered and, again, the appellant could not be excluded as a contributor to the profile. The chance of a randomly chosen individual having a DNA profile that would not exclude that individual as a possible contributor is less than 1 in 34 (first side) or 1 in 217 (second side).

8 Other forensic evidence suggested consistency between the samples found in the bumbag and the drugs discovered in one of the bags found in the couch cushion.

9 The appellant's defence was that he did not know of the existence of the drugs in the couch cushion, although he did not testify or call any evidence at trial. The jury returned a guilty verdict on the sole count that was left to them.

10 After the jury had been empanelled, but before the State opened its case, defence counsel objected to the admissibility of two items of evidence. The first was any exhibits seized pursuant to the search of the Balcatta premises and the second was the DNA evidence.

11 As to the first, counsel said that the objection was not to the validity of the warrant but rather as to its execution. The search warrant had been issued by a Justice of the Peace on the morning of 12 February 2008 but the Justice had neglected to date the document. When the warrant was shown to the appellant he drew attention to the absence of a date and sought time to contact a lawyer. The transcript from the video of the search shows that the appellant made several requests for permission to contact a lawyer. The gist of the police officer's response was that he could do so but not until after things had been explained to him and they had 'done their bit'. The police officer added: 'You have the right to make a phone call to your lawyer ... when and if practical, and this time not practical [sic]'. This aspect of the transcript concluded with this statement by the police officer:

Right. Sweet. In relation to the warrant, as I've agreed, and we've earlier shown it, but we'll show it again so everyone's happy, signed in at Perth, the Justice of the Peace signature and I've confirmed that the complaint of the ground was dated and signed this morning. It's probably an oversight of the JP. The advice I've received is that it does not invalidate the warrant - the warrant - the search warrant, and we'll be searching the premises, okay, at this point in time? I'll then go and get a statement from the JP to that effect later on.

12 It appears that the appellant was eventually allowed to contact a lawyer but after he made the call to the lawyer the only issue he raised with the police officers was that he would decline to make any comment during the execution of the warrant.

13 The thrust of defence counsel's submission was that the absence of the date from the document made the warrant prima facie inadmissible under the provisions of the Criminal Investigation Act 2006 (WA) and that in the circumstances the trial judge ought not to exercise the discretion to admit the evidence. The trial judge was later to rule (and it is now common ground) that the warrant had been issued under the Misuse of Drugs Act 1981 (WA) and that this legislation, rather than the Criminal Investigations Act, governed the situation.

14 Defence counsel's argument concerning the DNA evidence focussed on the caveats in the scientist's opinion; namely, the exclusion ratios of 1 in 34 or 1 in 217 and the statement that 'due to the complex nature of the mixed DNA profile, the non-exclusion of an individual may be coincidental'. This, defence counsel argued, rendered the evidence totally worthless, devoid of any probative value and an invitation to the jury to speculate. Counsel for the State argued that the case against the appellant was circumstantial and that the DNA evidence was merely one of many strands of evidence that the jury were entitled to consider.

15 At the conclusion of the argument the trial judge ruled on the two impugned pieces of evidence together. Having decided that the situation was governed by the Misuse of Drugs Act (a matter that is not now challenged) his Honour said:

Now, the warrant obtained was defective in that the Justice of the Peace issuing the warrant failed to record on its face the date of its issue. That is a requirement of the form prescribed by the Misuse of Drugs Act regulations, regulation 6, and a necessary consequence or a necessary requirement since the warrant is valid for a limited period of time, and its validity is, of course, necessarily determined by the date of its issue.

There appears to be no doubt from the papers that the warrant was obtained on the date of its execution, and that the defect was due to an inadvertent omission by the issuing Justice of the Peace. I am mindful of the fact that the accused was acutely aware of the defect and brought it to the attention of [the police officer] at the time of its execution.

Having regard, however, to the nature of the defect, the consequences of the execution of the warrant, that is the significance of the issues arising, and applying the principles enunciated by the High Court in Bunning v Cross, I am of the view that the evidence obtained by the execution of the warrant is admissible.

Had I determined that the Criminal Investigation Act was applicable, and having regard to the nature of the breach and to the provisions of section 155, I would have been satisfied to admit it under that Act.

In respect of the second issue, the proposed DNA evidence: That ... evidence ..., to me - does have some probative consequence, albeit limited, but the extent to which it will assist the jury is, in my view, a matter for the jury, and the evidence can be properly led (ts 37 - 38).

16 The trial proceeded on the basis of these rulings. The DNA evidence was led in much the same fashion as had been foreshadowed in the argument about its admissibility.

17 The appellant seeks leave to challenge the conviction on three grounds:

Ground 1: The Learned Trial Judge erred in law in the exercise of his discretion by failing to exclude the evidence obtained pursuant to execution of the defective search warrant at Balcatta on 12 February 2008, thereby giving rise to a substantial miscarriage of justice.

Ground 2: The Learned Trial Judge erred in law in the exercise of his discretion by failing to exclude the expert evidence in relation to DNA matching, thereby giving rise to a substantial miscarriage of justice.

Ground 3: In the alternative to Ground 2, the Learned Trial Judge erred in law in failing to exclude the DNA evidence on the basis that its relevance could not be established, thereby giving rise to a substantial miscarriage of justice.

Ground 1 - evidence obtained under the search warrant

18 Section 24(1) of the Misuse of Drugs Act provides, relevantly, that a Justice of the Peace, on being satisfied of certain things may grant to a police officer a search warrant authorising a police officer at any time or times within 30 days from the date of that search warrant to enter any premises named in that warrant and to search those premises. The form of the warrant is specified in the Misuse of Drugs Regulations 1982. The form follows the language of s 24(1), including that the permission to search extends for 30 days from the date on which the warrant is granted.

19 Several things are common ground about this incident. First, the search warrant was issued on 12 February 2008 but the document taken to the scene by the police officer and shown to the appellant was not dated. Secondly, the appellant noticed the absence of a date and queried it with the police officer. Thirdly, the police officer told the appellant that the warrant had been obtained that day and that he would get a statement from the Justice of the Peace later on but that his (the police officer's) advice was that the warrant was not invalid. Fourthly, the appellant made several requests that he be permitted to contact a lawyer. The appellant was eventually allowed to consult a lawyer and after the contact he exercised his right to silence but did not say anything further about the absence of a date on the warrant.

20 There was a defect in the warrant. It should have included the date but it did not. The question is whether it was open to the trial judge to conclude that evidence obtained during the search authorised by the defective warrant could be admitted.

21 The evidence obtained by virtue of the search warrant was admitted in evidence and there can be little doubt that it formed a material part of the State's case. The question of its admissibility was a matter for the trial judge and, not surprisingly, the jury were not directed about the circumstances of which the appellant now complains. As I have already indicated, the warrant was defective but it does not necessarily follow that the warrant was invalid. However, I will approach the matter on the assumption that the evidence obtained during the search was illegally obtained. Were it not for the invalidity, no question of relevance or inadmissibility would have arisen. The question raised by the first ground is whether the trial judge should have exercised the discretion to exclude the evidence in accordance with the principles enunciated in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

22 It is trite to say that the criminal law regards the liberty of the subject as a precious commodity and seeks to protect against inappropriate intrusions against individual rights. Relevantly, the courts take seriously society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired: Bunning, (75). It is possible to extract from the judgment of Stephen and Aickin JJ in Bunning at 78-80 five considerations which serve as guides to the way in which the relevant discretion falls to be exercised. But as their Honours' noted (77), criteria such as these cannot be developed in the abstract and take their meaning from the circumstances of the case. The five principles are:

1. Whether the unlawfulness was other than the result of a mistaken belief on the part of the police officers that they were entitled to do what they did.
2. Whether the nature of the unlawfulness in the case affects the cogency of the evidence.
3. The ease with which the law might have been complied with.
4. The nature of the offence with which the offender has been charged.
5. Whether the law breached reflects a deliberate intent on the part of the Legislature narrowly to restrict the police in the exercise of their powers.

23 Counsel for the appellant submitted that the trial judge failed properly to consider and to give due emphasis to the Bunning factors, particularly the first and fifth criteria. I will deal first with the other three criteria.

24 The cogency of the evidence was not affected by the defect in the warrant. The warrant was executed, the items were seized and some of them were tested. Thereafter, their probative value stood alone, unaffected by the way in which they came into the possession of the investigating police officers. There was no evidence to suggest that the omission of the date from the warrant represented a deliberate 'cutting of corners' by the police officers concerned (Bunning, (79)). On the evidence, it seems to have been an inadvertent mistake by the Justice of the Peace who issued the warrant. Accordingly, the third factor does not weigh either for or against the admissibility of the evidence. The fourth factor involves some examination of the seriousness of the offence charged and of the unlawful conduct of the law enforcement authorities (Bunning, (80)). In this case the offence charged (possessing 440 g of methylamphetamine with intent to sell or supply) is very serious. Leaving to one side the reaction of the police officer when told of the defect (a matter with which I will deal shortly) the execution of a search warrant from which the date of issue has inadvertently been omitted does not rank at the higher end of the scale of seriousness. In my view the fourth factor does not weigh materially against the admissibility of the impugned evidence.

25 The evidence before the trial judge included the transcript of the exchanges between the police officer and the appellant before the search had commenced. The appellant drew attention to the omission of the date. The police officer told the appellant that the advice he had received was that the omission of the date did not invalidate the warrant. There was no evidence that called into question whether the police officer had sought and obtained the advice to which he referred or which tended to show that he did not genuinely believe that the warrant was valid. While it is true that the appellant's initial requests that he be permitted to contact a solicitor were rebuffed, he was eventually afforded that opportunity. There was no evidence that after the contact with the solicitor the appellant renewed his objection to the warrant. Rather, he exercised his undoubted right to remain silent. In all of these circumstances, I think it was open to the trial judge to conclude that the police officers executed the search warrant in the honest but mistaken belief that they were entitled to do so. Accordingly, the first of the Bunning criteria does not weigh against the admissibility of the evidence.

26 Counsel for the appellant drew attention to cases such as Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 in support of the proposition that strict compliance with the statutory conditions governing the issue of search warrants is an important consideration. That is undoubtedly so. But here, the only departure from the expressed will of the legislature was the absence of a date which would enable the appellant to know whether the force of the warrant had expired by the passing of time. It did not go to the essential preconditions for the grant of the warrant; namely, that a justice of the peace had been satisfied by information on oath that there were reasonable grounds to suspect that a 'thing' may be in the subject premises: Misuse of Drugs Act s 23(1) and s 24(1). Rather, it went to the description of the time within which the police officers could properly execute the warrant. The warrant, as issued, did not otherwise depart from anything contained in the Act, the Misuse of Drugs Regulations 1982 (WA) or Form 8 set out in those regulations. It seems to me, therefore, that the omission of the date was not so significant a departure from the will of the legislature as to demand the conclusion that, necessarily and without more, the warrant was so defective that nothing done under it could possibly survive. It was a factor to be taken into account in the exercise of the discretion (and there is no reason to think it was not considered) but it is not such as to lead to the result that the discretion ought to have been exercised by excluding the impugned evidence.

27 At trial, counsel for the State had referred to McCleary v Director of Public Prosecution (Cth) (1998) 20 WAR 288. That case involved (among many things) the validity of a warrant issued, again without a date, under the Telecommunication Interception Act 1979 (Cth). The court held that omission of the date was not a substantial defect or irregularity such as to invalidate the warrant. But in his submissions on appeal, counsel for the appellant referred to what was said by Ipp J about search warrants. His Honour said at 323:

[I]t seems to me, the inadvertent omission of the date of the execution of the warrant might well be regarded as a substantial defect. That is because the occupant of a residence sought to be entered and searched pursuant to such a warrant might require the warrant to be shown to him or her for the purposes of ascertaining its validity. A search warrant that does not record the date of its execution and issue is likely to be invalid on its face. If that were the case, an occupier, when confronted with such a search warrant, might refuse to allow any entry or search pursuant thereto. In those circumstances it would be inappropriate for a police officer to be able to justify an entry and search on the basis that the omission to record the date of execution and the date of issue was mere inadvertence.

28 However, his Honour did not deal with the exercise of the discretion to admit or exclude evidence obtained under the warrant and nor did he consider the Bunning criteria. He did not have to do so because he was dealing with a different statutory regime and a different type of warrant, which was found to be valid notwithstanding the defect. I do not think that anything said in McCleary requires this court to conclude that the evidence in this case ought to have been excluded.

29 In my view the argument that the trial judge's discretion miscarried in failing to exclude the evidence obtained under the search warrant has no reasonable prospect of success and I would refuse leave to appeal on ground 1.

30 In his directions to the jury the trial judge said:

Essentially, what she said was that the first two parcels; that is, the two parcels in the bum bag were likely to have come from the same source. The second two parcels; that is, those contained within the parcelling in the lounge cushion were unlikely to have come from the same source as those in the bum bag, and unlikely to have come from the same source as each other.

Dr Broom gave evidence concerning the analysis of the DNA found on the cloth, which the drugs secreted in the lounge cushion were wrapped. There was some lengthy examination and cross-examination of her; I don't propose to go over it. But essentially, what she said was, in respect to DNA lifted from side A of the cloth, there was a mixed DNA profile consistent with having come from at least three individuals. And the accused could not be excluded as a possible contributor.

However, due to the complex nature of the mixed DNA profile, the non-exclusion of an individual may be simply coincidental. She said that in a random ran test of an individual there was a 1 in 34 chance that the person could not be excluded in respect to that test. In respect to side B, she said, essentially, the same thing as she did in respect of side A, save that the random exclusion was 1 in 217. She pointed out, of course, that there were many, many, combinations that could be deduced from the tests that she had carried out, so that it would be impossible to exclude many, many, persons.

Now the weight or value to be given to the evidence of an expert is a question of fact for you, to be assessed in the same way as the evidence of any other witness. So you're required to reach a verdict, of course, according to the evidence which you accept. You may properly have regard to the impression made by the expert witness, and should examine the nature and quality of the evidence in a common sense way.

...

Whilst I'm dealing with the packaging, there, of course, has been discussion with the expert about transference of DNA, casual transference within a household or otherwise, it's a matter entirely for you, but you may think in respect of these drugs and the DNA on the cloth that the risk of transference is somewhat reduced when it is secreted in a Red Rooster bag (ts 146 - 147).

31 There is no suggestion that anything said by the trial judge misrepresented the effect of the evidence. The caveat mentioned by the witness was included in the trial judge's summary of the evidence. There is no suggestion that the State's case relied wholly, or even substantially, on the DNA evidence. It was simply one aspect among several on which the State's case was based. The other elements of the State's case are set out in the trial judge's summing up at ts 151-154. For the purposes of this application it is not necessary to deal with the other aspects of the State's case in detail because counsel for the appellant acknowledged that there was additional material other than the DNA evidence.

32 In ground 3, the appellant contends that the DNA evidence was irrelevant and therefore inadmissible. Counsel submitted that it was irrelevant because it was incapable of proving the proposition that it was the DNA of the appellant that was on the cloth inside the bag in which the drugs had been found. However, that seems to misstate the purpose for which the evidence was tendered. The evidence went no further than saying that the appellant could not be excluded from the mixed profile DNA. It (the DNA profile) did not, and did not purport to, establish a positive link between the appellant and the drugs wrapped in a cloth found in a bag inside a lounge cushion.

33 The gravamen of the appellant's submission is that it could not prove anything and therefore was irrelevant. But in my view, its probative force lay in its capacity to show the negative (namely, that the appellant could not be excluded) and its relevance lies in that area. The probative value of the evidence may have been (as was acknowledged) limited but this does not render it irrelevant.

34 Each case will depend on its own facts and the question of relevance will be answered by an assessment of whether the evidence has probative value. In my view the argument that the DNA evidence adduced in this case was so devoid of probative value as to be irrelevant and, as a matter of law, inadmissible has no reasonable prospect of success and I would refuse leave to appeal on ground 3.

35 In ground 2 the appellant contends that the DNA evidence was so inherently weak and non-conclusive that its prejudicial effect outweighs its probative value and, accordingly, should have been excluded in the exercise of discretion. I do not find this argument compelling. It has to be accepted that DNA evidence is not a panacea for all prosecution ills and that caution should be exercised in instances where there is a significant risk that a jury might misuse the evidence. There are many cases in which this issue has been raised: see, for example, Lewis v The Queen (1987) 29 A Crim R 267. Counsel for the appellant drew attention to the transcript of a special leave application in Forbes v The Queen [2010] HCA Trans 045, which (at that stage) had been referred to the Full Court. Subsequently, special leave was refused: Forbes v The Queen [2010] HCA Trans 120. But Forbes is of no assistance in this case because the argument agitated before the High Court was in respect of a case where the DNA evidence was virtually the only evidence to support a finding of guilt. That is not the case here.

36 The trial judge specifically drew to the attention of the jury the shortcomings to which the witness had referred in the caveat. He made an express statement that the weight to be attached to the evidence of an expert was a matter for them. In those circumstances it cannot be said that there is a reasonable prospect that the jury would have been misled into

ascribing more weight to the DNA evidence than it was capable of bearing. The task of the jury was to assess all of the evidence, including the DNA evidence, in assessing the circumstantial case against the appellant.

37 In my view, the contention that the trial judge should have exercised his discretion so as to exclude the DNA evidence has no reasonable prospect of success and I would refuse to grant leave on ground 2.

38 In my view none of the grounds of appeal has a reasonable prospect of success. I would refuse leave on all grounds. It follows that the appeal would be dismissed.