Police v Nicole Heuston

Consideration of the Collateral Issue as to the Validity of the Search Warrant

Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 outlines the search and seizure powers with warrant or other authority. Specifically s 47(1) provides as follows: (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 47A provides that: (1) A search warrant authorises any executing officer for the warrant: (a) to enter the subject premises, and (b) to search the premises for things connected with a particular searchable offence in relation to the warrant.
The words "subject premises" is defined in s 46 as "in relation to a warrant or application for a warrant, means premises the subject of the warrant or the application (as the case may be)".
Section 49 provides that: (1) A person executing a search warrant issued under this Division: (a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.
Section 76 provides that "[a] warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular".
The submissions from the parties relative to the collateral issue were short in compass. The only relevant authority referred to was the High Court decision of Ousley v The Queen (1997) 192 CLR 69. That decision dealt with an issue concerning warrants authorising the use of listening devices and whether such warrants were amenable to collateral review.
That decision merely affirms that there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the Judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements. As I understand the argument advanced by the applicant it does not proceed on that basis.
There is little doubt that the decision by the Eligible Issuing Officer to issue the warrant was an administrative one and not a judicial act. The warrant is not a judicial order, it is an instrument made pursuant to circumscribed statutory authority viz a viz under Part 5 of the Law Enforcement (Powers and responsibilities) Act 2002.
In so far as the judicial determination to be made by this Court is concerned there are a number of relevant authorities which I have considered none of which have been raised by either the defence or prosecution.
There are at least three important decisions which bear directly upon the determination of the arguments advanced in the current matter. Those are Hartnett v New South Wales [1999] NSWSC 265, R v Gassy (No3) [2005] SASC 496 and Way Out West Adult Shop P/L v Kraus [2008] NSWSC 87.
The decision in Gassy (No 3), whilst a decision of the Supreme Court of South Australia, dealt specifically with issues relative to the issue of a search warrant under the Search Warrants Act (NSW) as it then was. Amongst other things the Court held that a mis-description of the address in the search warrant when first issued meant that the warrant was invalid or, at least, did not authorise a search of the appellant's premises.
The Court held that it is clear enough that a failure to specify with sufficient precision the place to be searched will invalidate a search warrant. However, not every defect in the description of premises to be searched will invalidate a warrant. The general approach to be adopted was stated in Ousley by Kirby J as follows: Courts properly tend to take a practical rather than an unduly technical view of the challenges to warrants permitting intrusion into the property and privacy of those subject to them. But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected.
A search warrant should state with reasonable particularity the premises which may be searched in order that the police officers executing it may know the premises which they are entitled to enter and search, and so that the occupier may know that it is entry and search of his or her premises which is authorised by the warrant. The description should appear on the face of the warrant so that any police officers involved in its execution may, without reference to acquired or esoteric knowledge of the circumstances of the investigation to which the warrant relates, or of the person suspected of the offence, determine the premises which may be searched.
Here in the present case the applicant officer Detective S/Constable Carroll was not present at the time of execution of the search warrant, which fell to other Police present at the time. Additionally there is no evidence led in the proceedings from those persons as to the circumstances of what prevailed at the time of execution of the warrant. Nor is there any objective evidence before the Court in relation to the grounds for the application for the warrant or the occupiers notice which was required to be served on the occupier of the premises which would alert as to the address authorised to be searched over and above that contained on the face of the warrant.
Minor errors in the description of the premises to be searched will not make the warrant invalid or ineffective if those premises can still be identified with reasonable certainty. There are, of course, many ways by which premises can be described including by address, description, ownership or by reference to geographic location. Whether the premises have been sufficiently described will often be a question of fact and degree.
Way Out West Adult Shop P/L v Kraus dealt with a challenge to the validity of a search warrant on the basis of what was argued as a mis-description of the premises to be searched. The plaintiff in that matter held a commercial lease over premises situated at 3D and 3E, 438 High Street, Penrith. The warrant in that matter merely described the premises to be searched as "Way Out West 4/438 High Street Penrith". The imprecision argued by the applicant being that there was no reference to the particular suite numbers.
In her reasons for judgment dismissing the application and holding the warrant to be valid, Fullerton J referred to the decision in Carbone v National Crime Authority (1994) 52 FCR 516 at 521 where Hill J stated: "In my opinion a warrant must be strictly construed. If the NCA albeit inadvertently and through typing error, describes documents in a way which is ambiguous in the sense that the person to whom the warrant is address could read it either in one way or another, then if the warrant is capable of being read in a way adverse to the NCA, the NCA must bear the consequences".
Fullerton J further said that (at [25]): While his Honour was referring to ambiguity in the description given to documents to which a search warrant might be directed, the same consequences will obtain where ambiguity or imprecision in the description of the premises to be entered and searched, and from which property might be seized, is of such a kind that the person to whom the warrant is directed either cannot resolve the ambiguity at all, or cannot do so without recourse to his or her subjective or esoteric knowledge of the investigation, the person suspected of having committed the offence to which the warrant refers or to other circumstances surrounding the issue of the warrant.
Fullerton J stated the "necessity that a search warrant comply strictly with the statutory pre-conditions governing its issue is well established: George v Rockett (1990) 170 CLR 104 at 111. It is both a reflection and endorsement of the protection that the common law affords the citizens against unwarranted invasions of privacy or property and operates in recognition of what had been described as the 'great power of entry and search': (see Carroll Mijovich (1991) 25 NSWLR 441 at 451)".
Fullerton J further referred to the decision in R v Gassy (No 3) and affirmed that the view emphasised by Debelle J was correct in that it will often be a question of fact and degree as to whether or not premises have been sufficiently described such that they can be identified with reasonable certainty by the authorised officer asked to issue the warrant and the police executing it, and additionally, identified with reasonable certainty so that the occupier may know that it is entry and search of his or her premises which is authorised by the warrant (at [99]-[100]). It is for this reason that minor errors in the description or nomination of premises will not invalidate a warrant (see also R v Adamic [2000] QSC 402; (2000) 117 A Crim R 332 at 338).
Once it be accepted that the premises named in the warrant must be capable of being identified objectively, it becomes difficult, in my view to conclude that the premises named in the warrant (Exhibit 1) in the current proceedings sufficiently identified the appellant's premises.
A person reading the warrant and knowing that fact would naturally assume that the warrant was intended to refer to some premises and that there had been a mis-description. However, an objective consideration would not assist in identifying the premises to which reference was intended. The mistake could be in the name of the street, the description of the thoroughfare (street, road, crescent, etc) or in the name of the suburb
In my view, as in R v Gassy (No 3), the misstatement of the address to be searched in the current matter was not a minor defect, but was a defect which affected the substance of the warrant in a material particular sufficient to invalidate the warrant to a degree insufficient to enliven the provisions of s 76 of the Law Enforcement (Powers and Responsibilities) Act 2002.
In Hartnett v New South Wales it was stated that where a valid warrant issues but its execution is invalid or unlawful s 76 has no application.
Having determined the first issue in favour of the accused it then falls to consider whether the evidence produced consequent upon the search and relied on by the prosecution in respect to the charges should not be admitted under the provisions of s 138 of the Evidence Act 1995.
Section 138 provides: (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) … (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.
There is little doubt that the evidence obtained by Police following the execution of the warrant was obtained in consequence of the execution of an invalid warrant, sufficient to now enliven the provisions of s 138. That said the prosecution now bear the onus of demonstrating that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in the way in which I have found it to be obtained.
In considering whether the prosecution has discharged the onus I may take into account the following matters in s 138(3): 1. The probative value of the evidence. There is little doubt that the evidence of the finding of the property during the search has significant probative value. 2. The importance of the evidence in the proceedings. Again there is little doubt that the evidence is fundamental to the prosecution. 3. The nature of the relevant offences. The accused is charged with two counts of steal property as a servant between 9 July 2012 and 14 April 2018. The offence carries a maximum penalty of 10 years imprisonment on indictment. The total value of the property alleged to have been stolen is $300. If the offences are proved they would fall towards the lower end of objective seriousness for matters of this kind. 4. The gravity of the impropriety or contravention. It cannot be said that the contravention was minor or insignificant. The invalidity of the warrant rendered the subsequent search as illegal and in that regard to excuse the action would in my view significantly undermine the very strict statutory requirements for search and seizure under Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002. To restate what Kirby J said in Ousley: "But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected." 1. It cannot be said in the current proceedings that the actions of Police were deliberate so much is conceded by the defence. 2. Whether any other proceeding has been taken or is likely to taken. There is no evidence of any other proceedings being taken against Police.
Having weighed up all relevant matters in s 138 and s 138(3) in particular together with those matters germane to the search warrant, I propose to exclude the evidence, having regard to the desirability of the evidence not outweighing the undesirability of admitting the evidence which was obtained improperly and in a contravention of an Australian law.
The evidence is thus excluded. Magistrate Hiatt Penrith Local Court 26 September 2020

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