On 1 April 2020 two unmarked police vehicles made their way to a rural property situated on Moss Vale Road at Beaumont, nestled in the Kangaroo Valley being part of Cambewarra Range. Upon arrival, Police met the accused, Phillip Manwarring, who was not expecting their visit, telling him they were making inquiries about an illegal building structure erected on the property and the manufacture of illicit drugs taking place there based on information they had received. The accused inquired if police had a warrant. No, he was told. He asked them to leave. They did.
Later that day a search warrant was issued from the Registrar of Nowra Local Court at the request of one of the police officers present at the accused property earlier that day, Senior Constable Corbridge, to search the accused's property, seeking documents which it was claimed would support evidence of fraud.
PolAir flew a fixed wing aircraft over his property, twice, once, on 11 February 2020 at the request of Sergeant Watson, and another during the night of 1 April 2020 at the request of Corbridge. Police returned the next day, 2 April 2020, armed with a search warrant, issued by the Registrar of Nowra Local Court, to search for documents connected with unapproved building work as evidence of a fraud. Some landscape drawings were found and seized. During a walk-through of the dwelling, police found a dried cannabis leaf in a room underneath the house adjacent to a rumpus room.
The accused consented to a further search on the basis that if he withheld his consent, a crime scene warrant would be obtained in a matter of hours. More police were summoned. Pots of cannabis were found in more remote locations within the curtilage of the property and beyond.
The accused, has since been charged with cultivate cannabis contrary to the provisions of section 23(1)(A) of the Drugs Misuse and Trafficking Act 1985 (DMTA).
The offending conduct is alleged to have occurred on 2nd April 2020.
The accused entered a plea of not guilty and has defended the charge.
The accused maintains that the evidence upon which the prosecution rely to prove the charge was obtained in contravention of an Australian Law, or in consequence of an impropriety, namely, by means of a search warrant granted to the police in circumstances where the police had misled the court about the nature of the offence they were investigating. He seeks a determination by this court that all evidence obtained during the execution of the search warrant be excluded for the purposes of the charge pursuant to section 138(1) of the Evidence Act 1995.
The hearing proceeded over a period of three days and proceeded on a voir dire in order to determine if the evidence sought to be adduced by the prosecution and obtained as a consequence of the execution of the search warrant should be admitted into evidence in support of the charge. The court heard from five witnesses and received seven exhibits into evidence.
At the conclusion of the voir dire, I reserved my decision.
I have had the benefit of very detailed and comprehensive written submissions prepared by Mr Stratton SC of counsel with assistance from Ms Heath, his junior, for the accused, together with more concise and succinct written submissions from the prosecution for which I wish to express my gratitude, both of which have both been of enormous assistance to me in grappling with the issues raised in this matter.
In the interests of time and for ease of reference, persons referred to in this judgement will, after having been initially identified, thereafter be referred to using their first name, their surname or their role in these proceedings as the case may be.
[2]
Chronology
A brief chronology of events leading up to and shortly after the charge preferred against the accused appears below.
Time Event
28 January 2020 Senior Constable Gallagher (Gallagher) received information, in the form of a police intelligence report, about a structure built on a property in the Kangaroo Valley that was likely being used for the manufacture of illicit substances
Jan-Feb 2020 Sergeant Watson (Watson) viewed the accused's Development Application on Shoalhaven Council's website.
11 February 2020 Sergeant Watson sent an email to Shaun Clay (Clay) [of Shoalhaven Council] to inform him of a police investigation into offences under the Drug Misuse and Trafficking Act 1985 relating to a property at 1045D Moss Vale Road, Beaumont. He inquires whether an underground bunker had been built on the property without Council's approval telling Clay that police wished to access the property without notifying the landowners, suggested the possibility of a search warrant and sought to work with the Council to consider an investigation of falsifying a development application or failure to comply with a development application.
11 February 2020 PolAir conducted a flyover of the accused's property at the request of Sergeant Watson
1 April 2020 Senior Constable Corbridge (Corbridge), along with other police officers, arrive unannounced at the accused's property, telling him that police were making inquiries into police intelligence relating to an illegal structure and the manufacture of illicit drugs at the property. Upon learning that police do not have a warrant, he told police to leave - which they did.
1 April 2020 Corbridge applied to the Registrar of Nowra Local Court to obtain a search warrant, asserting he had a reasonable belief that the accused had committed an offence contrary to the provisions of section 192E of the Crimes Act 1900
1 April 2020 Corbridge arranged for a night-time, PolAir flight, over the accused's property.
2 April 2020 Police arrive at the accused's property with a search warrant for 1045D Moss Vale Road, Beaumont and are informed by the accused that the address should be 1045C. Corbridge manually amended the search warrant which is then executed. Kelly located small fragments of cannabis leaf in an underground room. A Crime Scene was declared. The accused consented to a search on the basis that a crime scene warrant would otherwise be obtained in a few hours. During the search, various 'finds' are made, namely, pots of cannabis plants throughout the property and beyond, apart from landscaping plans in the dwelling - all of which were seized. The accused is arrested and charged with cultivation of cannabis.
14 April 20 Corbridge executes a search warrant at Shoalhaven Council.
15 April 20 Corbridge executes a search warrant on Madeline Blanchfield Architects.
27 May 2020 Fraud component of investigation dropped by police.
[3]
Issues
There are in my view three primary issues which arise for determination in the present case.
[4]
First Issue - Was the search warrant obtained validly?
Section 47(1) of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) relevantly provides:
47 Power to apply for search warrants
(1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.
Section 46A(1)(a) of LEPRA defines a 'searchable offence' in relation to the issue of a warrant and relevantly provides:
46A Searchable offences
(1) For the purposes of this Part, "searchable offence" in relation to a warrant -
(a) means any of the following -
(i) an indictable offence,
(ii) a firearms or prohibited weapons offence,
(iii) a narcotics offence,
(iv) a child abuse material offence,
(v) an offence involving a thing being stolen or otherwise unlawfully obtained,
(vi) a computer offence
Section 46(3) of LEPRA relevantly provides, in relation to "a thing" connected with a particular offence:
(3) For the purposes of this Part, a thing is connected with a particular offence if it is -
(a) a thing with respect to which the offence has been committed, or
(b) a thing that will provide evidence of the commission of the offence, or
(c) a thing that was used, or is intended to be used, in or in connection with the commission of the offence.
The prosecution case is that police suspected that the accused had built a dwelling without having obtained development consent from Shoalhaven Council contrary to the provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) and that drugs were being manufactured on the premises contrary to the DMTA.
Within the EPA Act is a separate regime for entry and search of premises by investigation officers investigating breaches of the legislation and creates powers to those officers to require persons to provide information and records. Additionally, the legislation makes provision which establishes a mechanism enabling owners to address lack of development consent.
Offences under the relevant provisions of the EPA Act are punishable by fine and, it was submitted by Mr Stratton SC, are not 'searchable offences' as defined in section 46A of LEPRA.
To establish 'fraud' for the purpose of section 192E of the Crimes Act 1900 the prosecution must prove that a person dishonestly obtains a financial advantage by any deception.
The accused accepts that the evidence only established that he built a fully functioning residence without obtaining council approval but not that he submitted a development application in which he sought approval to build a shed or horse stables and then built a residence. In other words, there was never any evidence of dishonesty.
Additionally, my attention was directed by Mr Stratton SC to the observations of the court in Ho (1989) 39 A Crim R 145 with respect to a charge of obtaining a benefit by deception which must necessarily inform me in determining this issue in so far as the question of a reasonable belief held by police for the purpose of issuing a search warrant.
On all of the evidence that I do accept I am satisfied that there was never any evidence of fraud that could form the basis of any charge to be brought under s 192E. There was certainly no benefit which would meet the description of financial advantage as contemplated by the section. Likewise, there was no basis provided by Corbridge for his belief that the relevant documents - the thing referred to in s 46(3) of LEPRA - would be found within the premises in his application to the registrar for the search warrant.
I have had the benefit of reviewing the transcript and the answers provided to Mr Stratton SC of counsel by Corbridge with respect to the inquiry he told the accused he was pursuing, namely fraud, for the purposes of section 192E of the Act. I considered much of that evidence to be disingenuous and self-serving.
I am not satisfied that, at the time the search warrant was sought, Corbridge held any reasonable suspicion with respect to the commission of fraud on the part of the accused. Indeed, the intelligence report referred to an illegal building structure and the manufacture of illicit drugs. The former is a matter which would, it was conceded by police, normally be investigated by council officers in the ordinary course of events, as they are better equipped to deal with, and for which a regime is established, under the EPA Act and therefore that his dissimulation about seeking documents to support a charge of fraud is readily apparent.
Indeed, it seems extraordinary that police would devote significant resources such as PolAir to assist in that line of inquiry. Different reasons were proffered for its use, one being to establish the existence of an underground bunker, which I consider preposterous, and the other, to ensure the safety of police when executing a search warrant, equally incredible.
Watson's email to Clay on 11 February 2020 is illuminating. Clearly, police were investigating offences under the DMTA. There is otherwise no reference to fraud.
The prosecution submits that, notwithstanding the fact that police:
1. had two initial lines of inquiry, namely, the alleged fraud and the manufacture of illicit drugs; and
2. did not have a reasonable suspicion for the second, the manufacture of illicit drugs
this should not prevent police from pursuing the first line of inquiry, namely, the fraud, in circumstances where Shoalhaven Council had declined to take any action. This submission is, in my view, unencumbered by merit and can be quickly disposed of.
During his evidence, Watson told the court that, in relation to possible fraud offences, the council had not pursued action against the accused because council officers had been intimidated by him who, it was asserted, was a mixed martial arts fighter. Watson had made no reference to this in his statement nor, it was established, did he seek details of any such intimidation from the council officer with whom he had spoken, nor had he made any attempt to investigate that allegation. Remarkably, no evidence was called from any council officer to support the corroborate such claim.
Corbridge, under rigorous cross examination about why he was investigating buildings not authorised by council, made no reference to the alleged intimidation and made no reference to it in his statement. Accordingly, I place little to no weight on that evidence whatsoever to explain why police determined to pursue the alleged fraud matter.
I am also satisfied that there was never any basis which could support a reasonable belief that there were documents within the premises which could support a charge of 'fraud' and that the only relevant offence, on the facts then known to police, arose under the EPA Act which were not 'searchable offences. Indeed, for their troubles, the police seized only landscaping plans, entirely irrelevant to the stated purpose of the search.
I am satisfied on the evidence adduced on the voir dire which I accept, that police were investigating offences under the DMTA but used the possible offence under s 192E of the Act as a ruse to apply for the search warrant to investigate the real purpose for searching the property, namely the alleged manufacture of illicit drugs, an offence contrary to the provisions of the DMTA.
[5]
Determination of the First Issue
Accordingly, it follows that on all of the evidence which I do accept, I find that the search warrant was not validly obtained by police.
[6]
Second Issue - Was the evidence of the discovery of the cannabis plants seized following the execution of the search warrant unlawfully or improperly obtained?
Section 138(1) of the Evidence Act 1995 relevantly provides:
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.
The prosecution submit that the accused consented to the search of his property and, following that search, police located and seized a number of pots containing cannabis plants, conceding however that plots 6 to 9 inclusive (points where cannabis plants were found) were positioned outside the perimeter of the accused's property. It was further submitted however that in defence of the police position, there were no fences or clear borders establishing the boundary of the property.
In the course of Mr Stratton's helpful submissions my attention was directed to the provisions of ss 47A(1) and 49(1) of LEPRA as well as the observations of the High Court in George v Rockett (1990) 170 CLR 104. I note that the description of the object of the search is "a reference point for delimiting the scope of the warrant". In this instance the scope of the warrant allowed police to search for "Documents, Development Applications, drawings, plans, drafts relating to the development of the residence at 1045D Moss Vale Road, Beaumont".
The issuing officer was given to understand that the search was in connection with the 'searchable offence' of fraud and that the documents the subject of the search had the necessary connection to that searchable offence. S 49(1)(b) allows police to seize and detain an item found 'incidentally' during the execution of a search warrant but otherwise does not permit police to search for anything associated with any criminal offence.
It is readily apparent from the search warrant videos [1] that police thoroughly search 'the bunker' where there are clearly no documents, ask the accused to open a sump where one would not expect to find documents, and Senior Constable Kelly, wearing gloves, finding cannabis leaves in a drain which he has run his finger through. Such conduct is illuminating and reveals that police surpassed the bounds of the warrant and were intent on finding evidence associated with offending under the DMTA rather than searching for documents in relation to a fraud.
The Crime Scene Warrant [2] referred to property described as 1045D Moss Vale Road, Beaumont NSW DP 839400 being the subject premises which police were authorised to search [3] . The evidence reveals the adjoining owner had not given permission to police search their property. The police it seems were in possession of information which informed police of the limits of the accused's property but chose not to avail themselves of that day. The accused was asked during the search where the boundaries of his property lay but he said he preferred to contact his lawyers. I am satisfied that police then in attendance were not then sure of the extent of the boundary within which they could search [4] but that they were reckless when doing so.
It is clear in any event that evidence of the discovery and seizure of plants at plots 6-9 should not, for that reason alone despite anything else, be admitted as evidence of conduct said to form part of the charge.
It is manifest from s 138(1)(b) of the Evidence Act 1995 that in applying that section it is sufficient if the obtaining of the evidence was in consequence of an impropriety or contravention of Australian law. I note the authority of Cornwell v The Queen [2010] NSWCCA 59 that a chain of causation must be shown between the impropriety or contravention and the obtaining of the evidence [5] .
For the reasons articulated earlier in this judgement, I am satisfied that the search was unlawful. But for the location of cannabis leaf during the execution of the search warrant, police would never have been able to establish a crime scene or obtain a Crime Scene Warrant [6] . When told by independent officer, Inspector Cockram (Cockram), that in the absence of his consent, police would obtain one in a couple of hours, the accused consented to a search. It is submitted by counsel for the accused that this "did not break the chain of causation". It is a forceful submission which resonates in all of the circumstances and finds favour in this hearing.
I am satisfied that the consent to search given by the accused which, it is readily conceded, was freely given, arose in circumstances where an unlawful search had been conducted following the issue of a defective search warrant and which, I am satisfied, was issued as a consequence of an impropriety by police.
[7]
Determination of the second issue
Accordingly, I find that the evidence obtained by police following the execution of the search warrant was in consequence of impropriety and contravention of the relevant provisions of LEPRA.
[8]
Third Issue - Does the desirability of admitting the evidence of the discovery of the cannabis plants seized following the execution of the search warrant outweigh the undesirability of admitting it, given the way it was obtained?
In determining whether to admit or exclude the evidence, the court may have regard to the factors specified in section 138(3), namely:
(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.
Addressing each of those factors set out in s138(3) respectively it may be observed that:
1. Clearly, the evidence obtained by police following the execution of the search warrant is of high probative value. Without it, it is difficult to see how the prosecution could succeed.
2. The offence for which the accused stands charged is being dealt with in the Local Court rather than on indictment, and therefore carries a maximum penalty of 50 penalty units and up to 2 years imprisonment. It is submitted for the accused that the offending conduct, if established, would fall at the lower end of objective seriousness. I am inclined to agree with that submission.
3. The impropriety in this instance, giving rise to the issue of the search warrant, ostensibly to obtain documents supporting evidence of 'fraud', enabling police to discover the presence of cannabis, which I am satisfied was their primary goal, is in my view most egregious and cannot be condoned. Left unchecked, the implications for the rights of members of the community are patent.
4. I am satisfied that the conduct of the police in the circumstances leading up to and including the issue of the search warrant and its execution was bold and deliberate. The conduct of the search could also be described as reckless at times, particularly where there was a heightened risk that plants found during the search were located on another property. In addition, there was obviously a considerable risk that the search was illegal and little, if any, thought was applied to that contingency.
5. My attention was directed, in the written submissions filed for the accused, to the rights of a person found in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) as well as the observations of the court in Director of Public Prosecutions (Vic) v Natale [2018] VSC 339 at [70]. I am satisfied in the presence case, that the accused's rights under the ICCPR was violated as a consequence of police conduct in obtaining the search warrant and its subsequent execution.
6. There is no indication that there are or will be any proceedings taken to address the impropriety or contravention. Excluding the evidence in this instance affirms the law which was contravened by the police in the application for the search warrant and the way in which it was executed.
I find that:
1. the evidence located during the search of the accused's property at Moss Vale Road, Beaumont on 2 April 2020 was obtained in consequence of an impropriety or contravention of Australian law by members of the NSW Police Force who applied for and executed the search warrant issue by the Registrar of Nowra Local Court the previous day.
2. The desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence that has been obtained in that way.
[9]
Orders
The evidence obtained as a consequence of the search is excluded.
Magistrate M O'Brien
Wollongong Local Court
[10]
Endnotes
Exhibit 6 - videos 0092 and 0093
Exhibit 8
S47A(1)(a) of LEPRA
Evidence of Senior Constable Nethery - Transcript of 19.11.2021 at page 90
At [178] - [180]
LEPRA section 19
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Decision last updated: 03 August 2023