DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355

DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355 - VSCA 2011 case summary — Zoe

[15]

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained -

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

[34]

HIS HONOUR: What's your definition of affidavit?---Well, in respect to a search warrant it's the - the Form 708A which is the Victoria Police Form that contains the information for, or in support of - - -

Are you saying that you were unaware that an affidavit had to be sworn?---Well, I was of the belief the process I was going through was swearing the affidavit.

MR PAPAS: Had you had any training in the course of your - either detective training or initial training or subsequent training, the one you mentioned, so that - I've identified three lots of training, but you tell us how many times you've been trained as a police officer?---I've been trained numerous times. I have got no specific recollection of training in respect to that particular aspect of taking out affidavits. The most like - well, my research in the last few days is there is information within various manuals in respect to it, and it may very well have been something that was touched upon.

HIS HONOUR: Did you read the affidavit before you signed it?---Yes.

Doesn't it say, 'I, Stephen McIntyre, Detective Senior Sergeant, at the Clandestine Laboratory Squad, make oath and say'?---Yes.

What does 'make oath' mean?---Well, my interpretation at that point of time, and it has been up until today, or yesterday, that I was making oath by acknowledging that document.

How were you doing that? What did you want - to make oath, what does an oath mean to you? You've been in court, I'm sure, on countless occasions when people have gone into the witness box and taken the oath?---Yes.

Is that right?---I'd never considered the subject.

Of what an oath means?---In respect to the taking out of an affidavit for a search warrant, it's not something I had ever turned my mind to.

You understand when someone goes in the witness box, and you've done it no doubt yourself countless times, you're taking an oath when you swear on the Bible?---Yes.

That's what it means?---I understand that, Your Honour.

Well, how can you read this 'make oath and say' without understanding what oath means? It just beggars belief.

MR PAPAS: What did you understand - - -

HIS HONOUR: Well, no, could he answer the question, please?---I'm sorry, Your Honour, I was unaware of - what was the question?

I'm putting to you that I just can't understand how you wouldn't - - - ?---Okay.

- - - understand what oath means in affidavit, in the first three lines, four lines of it?---This is a practice, and the only process in respect to taking out affidavits I've ever experienced. I have never had to swear on a Bible or make a verbal utterance in the course of taking out hundreds of search warrants by way of an affidavit.

MR PAPAS: When would you have first started being the person who was the deponent for affidavits in relation to search warrants, just as best you can, which year?---Probably around about 1991, in respect probably at that stage to stolen good, search warrants. Later on when I was promoted to the rank of sergeant there would have been drug warrants and - - -

So that's a deponent?---Yes.

HIS HONOUR: Just - let's go back to the facts. Sworn at, that wasn't filled out. Why was that?---I have got no explanation as to why that wasn't filled out.

Or the date?---It should have been.

Well, the word 'sworn', what does that mean to you?---Well, my understanding that by acknowledging what was in that document, by way of signing it, I was swearing it.

Is there anything in what we call the jurat, as you know in witness statements - - -?---Yes.

- - - of acknowledgments, 'I hereby acknowledge this is true and correct in the belief if it's wrong I'm subject to the penalties of perjury', that sort of phrase?---Yes.

There's nothing like that there, is there?---No, there isn't.

There's nothing to indicate that it's true and correct, is there?---No, Your Honour.

Except it says the words 'sworn at'?---Yes.

You say the word 'sworn' has no meaning to you at all?---Well, I'd never turned my mind to the actual document as, as I said. But the process I always accepted, that by doing the signing of that document I was accepting the truthfulness of the document and the contents of the document, and that would suffice. At no stage had I even turned my mind to it, because it's the only practice I have ever seen.

MR PAPAS: What did you consider in relation perjury? Were you subject to perjury if you told a lie in any of these documents?---Yes, definitely.

HIS HONOUR: How?---By virtue of - - -

You hadn't taken an oath?---Well, in my mind I had.

How had you taken an oath?---By virtue of witnessing and signing on that - - -

All you've done is sign your name and someone's witnessed it. There's not even an attestation that this is true and correct?---That's my understanding as of yesterday, that's correct, Your Honour.

You were saying this is a common practice in Victoria Police?---I'm saying this is the only practice I've ever seen in Victoria Police.

[46]

HIS HONOUR: Mr Hermans, you're an intelligent man. You've risen to a high rank in the police force. You understand that it's fundamental to an affidavit that the person takes an oath?---I certainly understand, Your Honour.

And you would expect a Sergeant in a crime squad to know that?---I understand it. My concern is for those that don't.

Answer my question. You would expect a Sergeant in a crime squad to know that?---I would expect so, Your Honour, yes.

And that Sergeant looks at the warrant and reads 'I make oath' or the affidavit 'I make oath and say' that a person who's attained a rank of Sergeant, with all the training that has happened, irrespective of whether he's been in uniform or not, would know that requires him to swear to the affidavit?---I agree with everything you say, Your Honour. My only reason - - -

And at the end when it says 'sworn at' that a sergeant would understand that actually requires a swearing, correct?---Correct and the only reason I raised it is because I'm surmising what could possibly lead to this poor work practice.

Let's get to that to what I would term 'corporate speak' of 'poor work practices'. You no doubt realise that it's much more than a poor work practice, it's a fundamental undermining of the affidavit?---It may be interpreted as that yes I understand that.

Well - - -?---It's not for me to make that decision Your Honour. I understand the complexities and I understand the importance. The evidence I'm giving relates to the - - -

You've used this word which I've termed 'corporate speak', 'poor work practice'. To a lawyer, it's inconceivable that an affidavit would be issued without it being sworn. Absolutely inconceivable. And if a solicitor were to do that, severe consequences would follow. Do you understand that?---I do understand that Your Honour.

I have the difficulty with a sergeant in an elite crime squad not having the same understanding of a fundamental of the criminal justice system, that is if you are taking out an affidavit to support a search warrant, you must swear it?---I agree with you, that is the context of our training - - -

And what - - -?--- - - - and it is the process that is - - -

Well it's fundamental isn't it?---Yes I would accept that.

Would you agree with this that if I substitute my face, familiarity breeds contempt, that might be a better way of trying to work out how this practice has arisen, that is - - -?---I'm not sure that I agree with that - - -

- - - I do so many of these that I just couldn't be bothered and once it starts, people get into the habit of 'couldn't be bothered'?---Look, that's one potential driver for - - -

Well given you say it's not intentional, that there's no grand plan to - - -?---I would - I would find that inconceivable because everyone understands we could all be exactly where I am now based on someone challenging an affidavit so the content - - -

So let's all accept - - -?--- - - -it's (indistinct) - - -

- - - that it's not intentional. The alternatives to that are, I'm in the Clandestine Laboratory Squad, I do warrants all the time, I'm raiding here, there and everywhere. I've got to have affidavits to support them, I've got to draw up the affidavit. For some reason a practice develops of they're not sworn?---I agree.

And it must be, surely, a reasonable conclusion to draw that's because there are so many. Familiarity breeds contempt?---Common error makes right I suspect this is one of the other ways to look at it. It just becomes so ingrained that the process is now as far as they're concerned - - -

And they don't even understand now, apparently, that according to Mr McIntyre that what they're doing is not taking an oath. His evidence is: 'If my signature is witnessed, that fulfils the requirement'?---And - - -

You would understand that - - -?---I do understand that - - -

- - - is completely wrong?---I don't disagree that you can draw a bow between that and sign an acknowledgement on the statement, where you are signing an acknowledgement to attest to the truth of the document and that's how that my answer came about that in the first place. I don't discount that it's not good enough. I'm only surmising that that's possibly where the mindset could've developed.

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Judgment (154 paragraphs)

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