DPP v Hills & Ors

2 Karen Hills, together with Craig Hills, NC and Brodie Cooper, are charged with a number of offences which are alleged to have been committed on 9 December 2008. Those offences include the kidnap of Leah Freeman at her home at Brunswick East, and an attempt to murder her on the same day, by drowning her in the Maribyrnong River near Flora Street, Keilor.

3 On 10 December 2008, Senior Detective Lamb of the Moreland Criminal Investigation Unit applied to the Broadmeadows Court for a search warrant to empower the police to search the Truganina address for a number of items, including any mud-stained or bloodstained clothing or footwear. That application for the search warrant was supported by an affidavit sworn by Detective Senior Sergeant Chrystie. In that affidavit, Mr Chrystie deposed, firstly, that during surveillance of the premises at Truganina conducted on 10 December, police had observed a vehicle registered to Karen Hills and another vehicle registered to her partner, either at or outside the Truganina address; and, secondly that inquiries with the Residential Tenancy Bond Authority revealed that Karen Hills was registered as the tenant of the Truganina premises.

4 Consequent upon that application, the Broadmeadows Court issued the search warrant at 12.15 pm on 10 December. At about the same time, Karen Hills was arrested near the Truganina address and conveyed to the Werribee police station. A brief interview was conducted with her. At 2.55 pm, a search was conducted of the Truganina premises. For the purposes of that search, Ms Hills was conveyed by the police to the premises. The search was completed at 4.40 pm, and in the course of it some 14 items were seized.

5 During the search, the police searched the laundry of the premises, in which they found three pairs of runners, namely, a pair of Fila runners, a pair of Puma runners, and a pair of Nike runners, together with a pair of tracksuit pants. Evidence was given by Detective Senior Constable Ramage, who was principally the officer involved in undertaking the search, that the Fila runners were in a dirty or soiled state, and that the other two pairs of runners were found by him in the sink in the laundry. He stated that either one or both of those other two pairs of runners were wet, and that they were both in a dirty or soiled condition. Subsequently, the runners and the track pants were examined by Mr Peter Ross, a forensic officer. Mr Ross took soil samples from the Nike runners and the Fila runners, and from the track pants. The prosecution intends to rely upon an analysis of those soil samples conducted by Dr Fitzpatrick, a research scientist for CSIRO, who specialises in soil science. Dr Fitzpatrick has expressed the opinion that there is a high probability that the soil, which was taken from the track pants and the two pairs of runners, came from the same site at which Leah Freeman alleges that the accused attempted to drown her.

6 Initially, Mr Desmond, who appears as junior counsel with his leader Ms Randazzo SC for Ms Karen Hills, had foreshadowed a number of grounds, as the basis for the objection to the admissibility of the evidence of the search, and, in particular, the evidence as to the finding of the three pairs of runners and the track pants at the search. As a result, a voir dire was conducted, in the course of which eight policeman, who were involved in the search, gave sworn evidence before me. They were Detective Senior Constable Ramage, Detective Sergeant Todorov, Sergeant Banks, Detective Senior Constable Carland, Detective Senior Constable Dolman, Detective Sergeant Freeman, Detective Senior Sergeant Chrystie and Detective Senior Constable Lamb.

7 Mr Drake of counsel, who appears on behalf of Craig Hills, initially participated in the voir dire. However, most of the challenge to the evidence was conducted by Ms Randazzo and Mr Desmond on behalf of Karen Hills. At the conclusion of the cross-examination of those witnesses, Mr Drake did not persist with the objection to the admissibility of the evidence, and he took no part in the argument relating to it. Mr Bayles, who appears for NC, formally supported the application, but did not participate in the voir dire in an active way. Mr Stuart, who appears for Mr Cooper, did not participate in it, as the evidence does not affect his client at all.

8 The main focus of the voir dire related to the conduct of the search in the laundry. In arguing that the evidence should not be admitted, Ms Randazzo relied on s.138 of the Evidence Act 1958 (Vic). She made two submissions, namely, first, that the evidence of the items found on the search and of the observations made in the course of the search had been obtained in contravention of Australian law. In particular, she submitted that the runners and the tracksuit pants found in the laundry had been tampered with, and therefore that the police had been involved in an illegality in the search and seizure of them. She submitted that that illegality would constitute an attempt to pervert the course of justice by the police.

9 Alternatively, Ms Randazzo submitted that the evidence had been obtained as a consequence of an impropriety, that impropriety consisting of some six matters, which she outlined to me in the course of her final address, and to which I will return shortly.

10 It is fair to say that in the course of her submissions to me Ms Randazzo concentrated almost entirely on the submission relating to the question of impropriety. However, at the end of her submissions, whilst she conceded that she would have difficulty submitting that I should find that the evidence had been tampered with, she did, albeit with some evident hesitation, persist with the submission that the evidence had been tampered with. Nevertheless, as I stated, it is clear that the main thrust of her submissions to me were based on the argument relating to impropriety. However, the argument as to illegality and tampering having been made, it is necessary for me to deal with it.

11 As I stated, it has been submitted that, in one form or another, the shoes and the tracksuit pants were tampered with by the police during a search by them of the laundry at the premises, and in the process of the items being seized in the laundry. It was submitted that such tampering constitutes an attempt to pervert the course of justice, and is therefore an illegality under s.138(1) of the Act.

12 The evidence of the conduct of the search of the laundry was mainly given by Detective Senior Constable Ramage and Sergeant Todorov. There was also some evidence relating to it by Detective Senior Sergeant Chrystie and Detective Senior Constable Lamb.

13 The search of the actual premises commenced at about 3 pm and it would appear that the search of the laundry commenced about half an hour later. The property seizure record, which was filled in by Sergeant Todorov at the time, indicates that the three pairs of runners and the track pants were each located, seized and bagged at 3.35 pm and that twenty minutes later a quantity of hairs was seized and bagged and noted in the log at 3.55 pm.

14 In essence, it was submitted that I should infer that the seizure of the three pairs of runners and the tracksuit pants had involved tampering from, it would seem to me, three matters relating to the evidence, namely, first, the evidence that the door between the laundry and the kitchen in which Karen Hills was then located had been closed in the course of the search of the laundry; secondly, there were some inconsistencies in the evidence of Mr Ramage as to the reason why the door was so closed; and thirdly, there were some inconsistencies in the evidence of Mr Ramage as to the state of the runners when he seized them.

15 It is, of course, accepted that the onus of proving the tampering lies on the accused on the balance of probabilities. The allegation of tampering is a particularly serious allegation. As a result, there would need to be a substantial degree of cogency about the inference relied upon by those acting for Karen Hills, before I could be satisfied, on the balance of probabilities, that the police had deliberately tampered, or interfered, with the evidence as maintained by counsel.

16 It is, accepted that in the course of the search of the laundry, the door between the laundry and the kitchen was closed. Mr Ramage, in cross-examination by Mr Desmond, accepted it had been closed during some of the search of the laundry, and Mr Chrystie supported that evidence. Mr Todorov was not directly cross-examined as to whether the door of the laundry was closed, but he did say in his evidence, in response to questions put by Mr Desmond, that his recollection was that no doors in the house had been closed in the course of the search. Ms Randazzo submitted that I should conclude that Mr Todorov told deliberate lies on oath in stating that in his evidence. However, although his cross-examination took place after Mr Ramage had given evidence, it was not directly put to him in cross-examination that the door to the laundry had been closed. In those circumstances, particularly in the absence of Mr Todorov having the opportunity to respond specifically to that allegation, I would not find that he deliberately lied; indeed, on my assessment of his evidence, I consider that he was clearly mistaken in his memory. Certainly, my assessment of the evidence of Mr Todorov as a whole, and the manner in which he gave it in the voir dire, would not entitle me to find that he was deliberately untruthful in any relevant respect in giving his evidence to this court.

17 I turn, then, to the circumstances in which the door was closed. Mr Ramage in his evidence estimated that it was closed for a period of seven to eight minutes while he and Mr Todorov were in the laundry. Mr Chrystie considered it was for a shorter time. I prefer the evidence of Mr Ramage on that point. His recollection, I think, is better in relation to the details of the search, and it would therefore seem that the door was closed for just under ten minutes. Mr Ramage stated that it was Mr Todorov who closed the door of the laundry. That evidence, from my recollection, was not challenged, and indeed it was not put to Mr Todorov or Mr Chrystie that anyone else closed it. Therefore, I accept that it was Mr Todorov, and not Mr Ramage, who closed the door to the laundry.

18 Mr Ramage stated in his evidence that the door was closed after the three pairs of runners and after the track pants had been located, bagged and noted in the log. No evidence has been put before me which could contradict or make that evidence of Mr Ramage improbable or unacceptable. I, therefore, accept that evidence of Mr Ramage.

19 Mr Ramage was principally cross-examined as to the reason why the door of the laundry was closed. At the committal proceeding he stated that he thought that Mr Todorov had closed the door, to enable the clothes, which were in the laundry basket, to be spread on the floor of the laundry. He also suggested that it was closed to enable the cupboard doors in the laundry to be open. However, in evidence before me, he accepted that neither explanation was a correct reason why the laundry door was closed. It is clear that the laundry was sufficiently large to permit the clothes to be spread on the floor, without the door being closed. Evidence was also given that the cupboard doors were sliding doors, and are not hinged; therefore, it would not be necessary to close the laundry door to enable them to be opened.

20 Mr Ramage, in the course of cross-examination, stated that shortly after the committal proceeding, he inquired of Mr Todorov as to why the laundry door had been closed in the course of the search. Mr Todorov told him that he, Mr Todorov, had closed the door, because Karen Hills had been abusive to them, while they were conducting the search and that he closed the door in order to reduce the noise that she was making. In re-examination, Mr Ramage told me that, at the time at which the door was closed, he did not know, in fact, what was the reason for Todorov closing the door. Mr Todorov did not then tell him that reason. Mr Ramage said that he only learnt of the correct reason as to why the door was closed after he made an inquiry of Mr Todorov shortly after the committal proceeding. In his re-examination, he did confirm that his recollection was that, in fact, while they were in the laundry, Karen Hills had been directing abusive language at them.

21 As I stated, Mr Todorov was not tackled in cross-examination about this matter, and it was certainly not put to him that he closed the door for an improper or criminal purpose. Mr Chrystie knew the door was closed, but it would appear that he was not able to shed any light on the reason for it being closed.

22 Pausing there, criticism might fairly be directed at the police for not properly giving consideration to, discussing and identifying the reason why the door was closed. The act of closing the door in the course of a search is an unusual conduct. It precludes the owner/occupier from having the opportunity to observe what was going on in her premises. It is also conduct which is likely to engender suspicion concerning the police conduct of the search. The failure to properly there and then identify the reason for closing the door, and to make a contemporaneous record of it, is likely to only enhance that degree of suspicion. It is unfortunate in this case that, at the time the door was closed, the police did not give consideration to why they were closing the door, whether it was necessary to do so, and, if so, give consideration to the proper recording of that reason, so that the type of confusion which has occurred would not take place.

23 That said, however, I am not satisfied that there is any evidence, which would enable me to conclude that the door was closed for any improper, nefarious or criminal purpose. Indeed, in this respect there is, I think, some force in the argument made by Mr Horgan of senior counsel, who appears with Ms Ruddle for the prosecution, that if that was the purpose of closing the door, you would expect there to be a greater degree of consistency in both the memories of Mr Todorov and Mr Ramage and the evidence they have given. In my view, there is no evidence before me which would entitle me to properly conclude that the door was closed for any illicit or improper purpose.

24 I turn, then, to the allegation that some tampering with the clothing and the shoes took place in the laundry. It would appear that the allegation is, firstly, that the two pairs of shoes which were said to have been found in the sink were, in fact, found on the floor and placed by the police in the sink; and, secondly, it has been suggested that the clothing and the shoes were contaminated by the police deliberately planting soil or dirt on them.

25 As I stated, apart from pointing to the closing of the door, Ms Randazzo, in support of those propositions, also pointed to some conflicts and inconsistency in the evidence of Mr Ramage as to the state of the shoes when they were seized. Mr Ramage, in his evidence before me, said that all three shoes were soiled. In his statement, he said only the Fila shoes were soiled. That statement is supported by the log, which only describes the Fila pair of shoes as being soiled. Mr Todorov, in his evidence, confirmed that the log in that respect was accurate. Indeed, I also note that Mr Ross of the Victorian Forensic Science Department described the Puma shoes, which were found in the sink, as being extremely clean. Furthermore, Mr Ramage in his evidence before me, as I understood him, thought that the Puma and Nike shoes were both wet, but the log only records the Nike and not the Puma shoes as being wet.

26 Those inconsistencies may ultimately affect the weight of the observations and the reliability of Mr Ramage relating to the state of the items found by him. However, they are not such that they would entitle me to conclude that he has been deliberately untruthful about his evidence. Indeed, that type of inconsistency would indicate to me that he has not sought to confabulate, or simply parrot, evidence he has pre-rehearsed in relation to the search. I must say that my impression of Mr Ramage in the witness box in cross-examination before me is such that I would not be able to conclude that he deliberately was lying about that, or any other matter before me.

27 There is no evidence that has been put before me that the shoes, that is, the Nike, Fila and Puma shoes, were not in the position stated by Mr Ramage in his evidence in the voir dire. There is no evidence that the condition of the shoes have been misdescribed in the log, that is, that they were not in the condition so described in the log. There is no evidence, in particular, that the tracksuit pants and that the Fila and Nike shoes did not have some dirt on them, which was later extracted by Mr Ross and examined by Dr Fitzpatrick. It was put directly to both Mr Todorov and Mr Ramage that there had been tampering with those items. They denied it, and there is no evidence to indicate to the contrary.

28 In that state of the evidence, in my view, there is no basis upon which I could infer that the police conducting the search had tampered with any of the items that were found in the laundry, and, in particular, the three pairs of runners and the tracksuit pants. In my view, the evidence, which has been adduced on the voir dire, falls significantly short of a sufficient basis, upon which I could draw that inference on the balance of probabilities against the police. While the issue and, indeed, the matters raised during the voir dire, might be appropriately explored in cross-examination before the jury as a basis to raise a doubt about this aspect of the Crown case, nevertheless, as I stated, I do not consider that those matters, collectively or individually, constitute a proper evidentiary foundation, upon which I could draw the inference sought to be relied upon on behalf of Karen Hills.

29 I accordingly reject the submission that I should conclude that the three pairs of runners and the tracksuit pants were tampered with, and, accordingly, I reject the submission there was any illegality in relation to the conduct of the search.

30 I turn, then, to the second, and really the principal, basis relied upon by Ms Randazzo, namely the basis that there was some impropriety by the police in the conduct of the search as understood in the context of s 138(1) of the Evidence Act.

31 It has been recognised by the authorities that the terms in which s 138 is expressed, and the policy which underlies that section, are derived largely from the principles which related to the common law discretion to exclude evidence which has been illegally or improperly obtained. Those principles have been stated by the High Court in cases such as Ridgeway v R[1]. In Robinson v Woolworths Ltd[2], Basten JA stated that he considered the principles so defined in Ridgeway fundamentally applied to the considerations with which s 138 are concerned.

32 In Ridgeway,[3] Mason CJ, Dean and Dawson JJ, in their joint judgment, expressed the concept of impropriety in terms of conduct which "is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances". In Robinson,[4] Basten JA, with whom Barr and Hall JJA agreed, noted that the conduct must not merely be a contravention of those minimum standards in some minor respect, but, rather, it must be quite inconsistent with, or clearly inconsistent with, those standards.

33 In applying those principles, it is important, I consider, to bear in mind the underlying purpose and function, both of the common law discretion and s 138. Basically, the discretion and s 138 are based on the recognition that the admission of evidence, which has been obtained by unlawful or improper means, creates a tension between two competing requirements of public policy, namely, firstly, the conviction of those who commit criminal offences, and, secondly, the undesirable effect of the court countenancing unlawful conduct or significant impropriety by those whose responsibility it is to uphold the law. (See, for example, Bunning v Cross[5]).

34 As a result of the latter consideration, it has been recognised that in some cases a conviction may be obtained at too high a price, where such a conviction is based on evidence which has been derived from, or is a result of, an illegality or substantial impropriety. (See R v Ireland[6])

35 As observed by Stephen and Aickin JJ in their joint judgment in Bunning v Cross[7], "The reception of evidence in such a case may demean the court as a tribunal whose concern is in the upholding of the law".

36 It is for that reason that both the common law, and subsequently s 138, have adopted the balancing exercise between two competing aspects of public policy, which I have just described.

37 There are some differences between the common law and s 138 of the Evidence Act. In particular, and relevant to this application, s 138 does alter the burden of proof in relation to such a matter. Also, s 138 is not expressed as a discretion, but, rather, it is expressed in mandatory terms.

38 In relation to the burden of proof, it would seem that the burden is on the accused (here Karen Hills) to establish the relevant impropriety on the balance of probabilities.

39 Again, the allegation of impropriety is a reasonably grave allegation, and therefore the proofs of it would need to be sufficiently cogent to enable such a finding on the balance of probabilities. On the other hand, if an impropriety is established, then the burden lies on the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability of admitting it (see Parker v R[8]). If an impropriety or illegality is established, then s 138(3) identifies the factors which, inter alia, must be taken into account, in determining whether the evidence should be admitted, notwithstanding the illegality or impropriety.

40 In submitting that there had been an impropriety, Ms Randazzo relied on six factors, namely: firstly, what she described as the stubborn determination by the police and, in particular, Detective Senior Constable Ramage, to have Karen Hills adopt the Truganina address as her home address; secondly, she submitted that there had been a failure by the police to advise Karen Hills that they were intending to attend the Truganina address with her until they were en route to that address after leaving the Werribee police station; thirdly, she submitted that the search warrant had not been served on Karen Hills until the completion of the search and not, as required by the police manual, at the commencement of it; fourthly, she submitted there had been a failure by the police to properly explain the search warrant to Karen Hills; fifthly, it has been submitted that there had been a failure by the police to comply with the provisions of the police manual which require a list of the items taken from the premises to be signed or countersigned by the suspect or owner/occupier at the premises and, if it is not, to be countersigned by a policeman, and for a receipt there and then to be issued to the owner/occupier; and sixthly, Ms Randazzo relied on the actions of Mr Ramage and Mr Todorov in closing the laundry door while the search of that room was being undertaken.

41 In putting those six matters, Ms Randazzo accepted that none of the first five matters, either individually or collectively, could constitute an impropriety; however, she put them to me as demonstrating what she described as the mindset of Mr Ramage before he conducted the search, and she also submitted that they compounded the impropriety of the search of the laundry being undertaken behind closed doors.

42 I turn to each of those six matters raised by Ms Randazzo. First, she submitted there had been a determination by the police to make Karen Hills adopt the Truganina address as her address. In my view, there is no evidence that Karen Hills was coerced or importuned to adopt that address as her address. Before the search, Karen Hills, in fact, gave a different address, namely at Sunbury, as her home address. There is no evidence of any importunity at that time in relation to seeking to persuade her that that was not her address. The basis of the search of the premises at Truganina had been adequately established in the affidavit of Mr Chrystie, which was filed in support of the application of the search warrant.

43 In cross-examination, it was put by Mr Desmond and Ms Randazzo that there had been subsequent importunity by Mr Ramage in the adjourned interview, which was recommenced at 7 pm after the search was completed and Karen Hills and the police had returned to the Werribee police station. Logically, if there was any importunity, that, of course, would not impact on the search; secondly, there is no evidence of such importunity; thirdly, in any event, the prosecution have agreed not to lead the record of interview, because it does not contain any relevant admissions in it and a number of the questions were responded to by a no comment answer. It may be that Mr Ramage did believe that Karen Hills lived at the Truganina address despite her assertion to the contrary; however, in my view, there was nothing wrong in Mr Ramage holding that view, particularly at the time of the search, given the contents of Mr Chrystie's affidavit. There is no substance at all in the first point relied upon by Ms Randazzo and I reject it.

44 The second point, which was relied upon, was an allegation that the police did not advise Karen Hills that they were searching the Truganina address, until they left the Werribee police station en route to that address. Mr Ramage, in his evidence, did state that he did not tell Karen Hills that they were going to the Truganina address until they had left the Werribee police station. He said that he deliberately refrained from doing that because he understood that she was going to be in contact at the police station with her father relating to looking after her young child, Kyle. In my view, that explanation given by Mr Ramage is appropriate, and I accept it. Further, I note that there is no obligation, in any event, in the manual, and any other document put before me, to require Mr Ramage to have told Karen Hills the address that was about to be searched before they left the police station. Accordingly, there is no substance in the second point raised by Ms Randazzo.

45 The third point, raised by Ms Randazzo, is that a copy of the search warrant was not served on Ms Hills at the commencement of the search. Clause 9.4 of the police manual requires the forward commander, where possible, to serve a copy of the warrant on the owner/occupier of the premises at the commencement of the search. The evidence of Sergeant Todorov was not entirely clear on this matter, but it would seem from his evidence-in-chief that his belief is that he did serve it at the commencement of the search. He was not challenged in his evidence to that effect, and I accept his evidence. His evidence in that respect was supported by the result of search form, which was signed by Karen Hills, and in which she acknowledged the receipt of the warrant. The onus is on the accused to establish that she did not receive the search warrant before or at the commencement of the search. No evidence has been adduced to that effect. In that state of the evidence, I am not satisfied that the search warrant was not served on her at the commencement of the search and, therefore, there is no evidentiary basis for the third point relied upon by Ms Randazzo.

46 The fourth point, which was relied upon by Ms Randazzo, is that there was a failure by the police to explain the warrant to Karen Hills at the commencement of the search. The evidence is that Sergeant Todorov, as I stated, said that he thought that he served the warrant on Ms Hills. I could find no cross-examination as to whether or not he explained to Ms Hills the warrant at that time. No evidence was adduced, in any event, that Ms Hills was not given an explanation of the warrant; indeed, it would seem to me, at the most, the evidence is entirely neutral, and, therefore, I would not make a finding that it was not explained. There is, in any event, no requirement in the police operations manual that the warrant be explained. Mr Chrystie, in his evidence, did state that it was common practice that it be explained, and I interpolate that I regard that as a good practice and one which ought to be followed. However, there is no requirement that it should be followed. In my view, if it was not followed in this case, which I do not find to be the fact, but if it was not followed that could not amount to an impropriety.

47 The fifth matter, raised by Ms Randazzo, was that contrary to the provisions of the police manual, the police did not issue to Ms Hills, at the completion of the search, a receipt for the property, and did not have her sign or countersign a copy of the list. It would seem that the result of the search document, which was signed by Ms Hills, did not, at the time she signed it, have attached to it a list of the items seized. Mr Todorov and Mr Ramage both frankly accepted that the typed list was not prepared, until they returned to the police station, and later attached to the result of search document. Equally, the property seizure record, which in effect constituted the search log, contains a provision for the occupier to sign it, thus acknowledging that it was a true record of the property searched, and also for the document to record a receipt on it. That part of the document was not filled in or signed by Ms Hills or countersigned by a policeman.

48 Initially, no provisions of the police manual were tendered during the voir dire indicating that those were matters which contravened any provision of the manual. However, after the voir dire had been concluded and submissions made to me, Ms Randazzo this day applied to me to reopen the voir dire, in order to tender and cross-examine Mr Chrystie about some material constituting another extract from the Victoria Police Manual, which she had subsequently located. I permitted her to do that, and I acceded to her application that the voir dire be reopened. In doing so, I did express what I regard as fair criticism of the defence for failing to identify, and put this material forward at an earlier stage.

49 The provisions, which have been tendered this day, provide that when property is seized, the forward commander must, where practicable, and, preferably, at the location of the seizure, ensure: that a receipt for the property is issued to the suspect or representative; that a list is compiled; and that that list is countersigned by the suspect, and, if the suspect does not sign or countersign it, that a second policeman countersign it.

50 It is clear from the evidence, both of the documents, and of Mr Chrystie, who was recalled today, that those provisions were not complied with. Mr Chrystie told me that the reason they apparently were not complied with was that, although he was the forward commander, he assumed that the police members actually conducting the search would have those documents signed, and he omitted to check that they were signed.

51 I accept the explanation given by Mr Chrystie for his departure from the police regulations. In my view, that departure, while regrettable, was not a deliberate or reckless departure, but, rather, he was, perhaps, in fairness to him, a little careless in relying on the adherence to the regulations by two quite senior policemen who were actually conducting the search.

52 However, I am not persuaded that that departure could in any realistic sense constitute an impropriety in the sense that I have already referred to. It was not, in my view, a clear inconsistency with the minimum acceptable standards, which the community should expect of the police. As I stated, it is a regrettable departure and one would hope that it does not happen other than in the most unusual case. However, it does not, in my view, constitute an impropriety.

53 Finally, I turn to the issue of the closing of the door. Ms Randazzo relied principally on this matter, and, indeed, it is a matter which, I think, is of more substance in this aspect of the application.

54 As I have stated, I am not satisfied on the evidence that the door between the laundry and the kitchen was closed for an illegal purpose, or for the purpose of concealing any improper or illegal conduct in the carrying out of the search of the laundry. However, as I have already stated, criticism can be levelled at the police in failing to properly clarify and give careful consideration as to whether the door should be closed at that time, and for failing to properly record contemporaneously with the closing of the door the reason for the closing of the door, when it was closed and when it was reopened. I am also, I think, entitled to be critical of the police for not carefully recording what items were, and were not, located at the time the door was closed.

55 As acknowledged by Mr Ramage and Mr Chrystie, Karen Hills was present at the premises as the owner/occupier, in order that she could have the opportunity to observe what was being carried out in the course of the search, and the manner in which the search was being carried out. As I have already stated, the act of closing the door deprived her of the opportunity to observe what was happening, and it was also the type of act which can give rise to an unfortunate degree of suspicion about what was happening behind closed doors. In my view, it is important that the police do not conduct searches behind closed doors, unless it is strictly necessary to do so, and in those circumstances a careful and considered decision should be made and recorded as to how and in what circumstances the door is closed.

56 That said, however, the question for me is whether the conduct in closing the door was an impropriety under s 138 of the Evidence Act. In considering that, it is important to bear carefully in mind the defined sense of impropriety, which has been determined by the authorities to which I have already referred. While I do consider that the closing of the door was a departure from what could be regarded as good police practice, I do not consider that, in the circumstances of this case, that departure has been demonstrated to be a clear inconsistency with the minimum standards of police conduct, which a community is entitled to expect of the police. In particular, in the absence of evidence that the door was closed for an illegal or improper purpose, and in the absence of any requirement in the police manual relating to this issue, I do not consider that the conduct was such as could properly be characterised by me as being an impropriety under s 138.

57 Accordingly, I am not satisfied that there was either an illegality or an impropriety. However, while it may not be necessary for me to do so, it is, I think, convenient for me to consider briefly the effect of what would have been my conclusion, if I had accepted the submission by Ms Randazzo that the closing of the door was an impropriety. In those circumstances, the onus would have lain on the prosecution to persuade me that the desirability of admitting the evidence outweighs the desirability of not admitting it.

58 The factors, which are to be considered on such assessment, include those contained in s 138(3). The factors which may relate to the undesirability of admitting evidence are those described in sub-ss.(d) and (e). As to (d), the gravity of the impropriety, if I were, contrary to my conclusions, to have considered the closing of the door to have been an impropriety, in my view, in the circumstances of this case, such an impropriety would be very much at the low end of the scale of improprieties of the type that are usually considered in the context of this type of case. In relation to the issue of whether the impropriety was deliberate or reckless, in my view it was neither, rather, it was a failure by the relevant police officers to give adequate consideration to the dictates of what I consider to be good police practice.

59 On the other hand, there is to be balanced against those two matters, factors which relate to the desirability of admitting the evidence which is set out in sub-paragraphs (a), (b) and (c) of sub-s.(3). As to (a), the probative value of the evidence, it is difficult at this stage to assess the probative value of it. Certainly there is no evidence, as I understand it, that directly connects Karen Hills with the runners. However, the evidence is that the house was leased by Karen Hills, surveillance put her at or near the house on the day of the search, and her two co-accused, her brother and her son, were at the home. There were other items that were found at the home, which apparently indicate Karen Hills used it for some domestic purposes.

60 The evidence is that the soil on the two runners and the tracksuit pants matched the soil at the site at which Leah Freeman says the assault took place. While that evidence does not directly implicate Karen Hills in the events alleged by Leah Freeman, nevertheless the evidence as to her connection with the Truganina address, together with the evidence relating to the matching of the soil is such that, in my view, it would have some probative value as part of the circumstantial evidence at the trial. It is, as I say, difficult at this stage to estimate how important that evidence is. Nevertheless, it does have, in my view, at least potentially some probative value.

61 In relation to its importance, which is the matter considered in sub-paragraph (b) of sub-s (3), again that is difficult to assess. However, if that evidence has probative value implicating Karen Hills or, indeed, any of her co-accused, it is evidence independent of that of both Leah Freeman and Kylie Meulenbrock. In a case such as this, the availability of independent evidence is important. Kylie Meulenbrock is a witness who could be properly described as an accomplice. She is also a witness who has already gained a benefit on her sentence because she will be giving evidence on behalf of the Crown. Accordingly, under s 165 I would be required to give a direction relating to her evidence. Whatever form I gave such a direction, I would expect that the direction would at least involve, to put it mildly, an encouragement to the jury to look for independent corroboration of her evidence. In those circumstances, if there is probative value in the evidence of the items seized at the premises, that evidence would have some importance in the trial.

62 In the scales it seems to me that the matter referred to in (c), that is, the nature of the relevant offence, is probably the most important. In this case, the two primary offences alleged against the accused, attempted murder and kidnapping, are particularly serious offences. If the evidence sought to be led by the prosecution were excluded, I would thereby be precluding the admission of relevant and probative evidence in respect of charges, which allege particularly serious criminal conduct. In my view, that being so, the probative value and the importance of the evidence, on balance, would clearly outweigh any impropriety, if there were such, as contended for by Ms Randazzo. In those circumstances, if I had to perform the balancing exercise described by sub-ss (1) and (3) of s 138, in my view, the balance would clearly fall in favour of the admission of the evidence.

63 For those reasons, I reject the application made by on behalf of Ms Hills, and supported on behalf of NC, for the rejection of the evidence of the search and of the items found on the search.

[1] [1995] HCA 66; (1995) 184 CLR 19.

[2] [2005] NSWCCA 426; (2005) 64 NSWLR 612, [22].

[5] [1978] HCA 22; (1978) 141 CLR 54 at 64 per Barwick CJ.

[6] [1970] HCA 21; (1970) 126 CLR 321 at 334-5 per Barwick CJ.

[8] [2009] HCA 7; (2009) 252 ALR 619 at para 28 per French CJ.