R v Caruso [2006] ACTSC 45

3. The relevant portions of s 187 of the Act are as follows:

(2) If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be a thing or things of a particular kind connected with a particular offence on, or in the clothing that is being worn by, or in any property in the apparent control of, a particular person and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable--

(a) to enter any place the police officer believes on reasonable grounds to be occupied by the person; and

(b) to search the person, or the clothing that is being worn by, or property in the apparent control of, the person; and

(c) to seize any such clothing or property that the police officer believes on reasonable grounds to be connected with the offence.

(3) If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable to--

(a) enter any place named or described in the warrant; and

(b) search the place for things of that kind; and

(c) if the place is a private place--to search any person found at or in the place, or any person whom he or she reasonably believes to be about to enter or to have recently left the place, and the clothing that the person is wearing, or property in the apparent control of the person, if the police officer believes there are reasonable grounds for suspecting that things of that kind may be on the person or in the clothing that the person is wearing or in property in the apparent control of the person; and

(d) to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.

(4) An issuing officer shall not issue a warrant under this section unless--

(a) the informant or some other person has given to the issuing officer, either orally or by affidavit, the further information (if any) the issuing officer requires about the grounds on which the issue of the warrant is being sought; and

(b) the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.

4. It may be noted that the power conferred by this subsection can be exercised only upon the laying of an information on oath, alleging that there are reasonable grounds for the requisite suspicion and setting out those grounds. However, whilst a prerequisite for the exercise of the power, neither the laying of such an information nor even the issuing officer's own conviction as to the existence of reasonable grounds for the professed suspicion, requires the issue of the warrant sought. On the contrary, the power conferred by the section is discretionary and it is the issuing officer's duty to make a judgment as to whether it should be exercised and, if so, as to the nature of the warrant that should be issued.

5. The duty cast upon issuing officers is an important one. It is not properly discharged by a perfunctory examination of the paper work to ensure that any prerequisite for its exercise has been satisfied. If that was all that was required, the power would no doubt have been conferred upon police officers rather than upon issuing officers who must be judges, magistrates, registrars or deputy registrars of ACT courts. The issuing officer is called upon to stand between the citizen and the state and to determine whether, in all of the relevant circumstances, the warrant should be issued. In many cases the proposed search will involve invading a private home, rummaging through the property of the occupants, however personal, and requiring people to undress so that they and their clothing may be searched. Actions of this kind would normally give rise to civil, if not criminal, liability at the suit of those whose rights had been overborne and should clearly not be authorised in the absence of circumstances justifying such intrusions. The issue of search warrants is usually justified by the need to further investigate evidence of serious criminal conduct, but the issuing officer is required to make a judgment to that effect on a case by case basis and, if the power conferred by the section is not properly exercised, ordinary citizens may suffer unjustified interference with rights that are normally protected by the law.

6. In response to Mr Gill's objection, a voir dire was duly conducted and five search warrants tendered. The warrants were addressed to sixty-seven named police officers and were in substantially similar terms.

7. One, purporting to authorise the search of the accused, initially referred to him as "a particular person" but in the operative part transmogrified him into "the said place". The officers to whom the warrant was addressed were authorised "with such assistance and by such force as is necessary and reasonable to enter the said place" and "to search the said place and ...to search any person found at or in the place, or any person whom the person named in the warrant reasonable (sic) believes to be about to enter or have recently left the place." Fortunately, none of the officers to whom the warrant was addressed apparently took any of this literally.

8. A second warrant purported to authorise a search of "the premises situated at: ACT registered vehicle YDC27D being a white Mitsubishi TRITON utility ...".

9. Regrettably, it appears that these warrants were issued without due regard for the need for issuing officers to exercise due care and responsibility when considering applications for warrants under s 187 of the Act. Since neither the accused nor his motor vehicle could properly be described as a "place" the purported authorisation of the nominated police officers to enter "the said place" was, in my opinion, ineffective and any evidence obtained during searches carried out in reliance upon these warrants would have been illegally obtained.

10. It does appear that the accused and his vehicle were present at one of the three houses mentioned earlier when it was searched and that the searches would, therefore, have fallen within the scope of the authority purportedly granted by the warrants relating to those properties. However, Mr Gill argued that similar conclusions should be drawn from the form of those warrants. They were virtually identical, save for the description of the property in question, and, to take one as an example, that relating to the premises which the accused allegedly occupied as his residence was expressed in the following terms:

WHEREAS I, Phillip Raymond Thompson, a Magistrate within the meaning of Section 187(3) of the Drugs of Dependence Act 1989, of the Australian Capital Territory, being satisfied by information on oath placed before me this date, that there are reasonable grounds for suspecting that there is at premises situated at:

Block 8, Section 136, PALMERSTON in the Australian Capital Territory, also known as 11 Millpost Close PALMERSTON, in the said Territory.

Amphetamine, utensils used in the administration of amphetamine, syringes, spoons, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies and accounts or anything else which the Informant believes on reasonable grounds to be connected with an offence against Section 169(1) of the Drugs of Dependence Act 1989, namely Possess a Drug of Dependence, namely amphetamine.

Cannabis, cannabis plants, cannabis seeds, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies and accounts or anything else which the Informant believes on reasonable grounds to be connected with a particular offence against Section 171(1) of the Drugs of Dependence Act 1989, namely Possess Prohibited Substance.

Alona-dimethylpheylethylamine (MDMA/Ecstasy), resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies and accounts or anything else which the Informant believes on reasonable grounds to be connected with a particular offence against Section 171(1) of the Drugs of Dependence Act 1989, namely Possess Prohibited Substance.

YOU ARE HERBY AUTHORISED with such assistance and by such force as is necessary and reasonable to enter the said place specified above in the Australian Capital Territory at any time of the day or night within the period of TWENTY EIGHT DAYS from and including the date of this warrant, and to search the said place and if the said place is a private place, to search any person found at or in the place, or any person whom the person named in the warrant reasonable (sic) believes to be about to enter or have recently left the place, and the clothing that person is wearing, or property in the apparent control of the person and to seize such thing or things of a particular kind specified above, clothing or property that the person named in this warrant suspects on reasonable grounds to be connected with an offence against the Drugs of Dependence Act 1989, and for so doing this shall be your sufficient warrant.

11. Mr Gill pointed out that the only recital in the warrant merely contained a finding that there were reasonable grounds for suspecting that there were at the relevant premises things of the kind stipulated. He argued that, whist the section required the provision of information on oath to that effect, the issuing officer had not been required to make any finding as to the existence of such grounds but to determine whether the discretion provided by that section should be exercised. Whilst that may be true, the making of such a finding does not, in my opinion, indicate any error or principle and is, in fact, desirable as it confirms that there was at least some evidentiary basis for the decision to issue the warrant. It is not necessary for the recital to contain an explicit finding as to the need for the warrant.

12. Mr Gill submitted that I should infer from the recital that the issuing magistrate had applied the wrong legal test. He pointed out that the Full Court of the Supreme Court of South Australia had said in Tran Nominees Pty Ltd v Scheffler [1986] 42 SASR 361 at 392-393 that:

It is one thing for a warrant to be silent about the basis for its issue, leaving the reader to assume, perhaps, that all was done with due regularity. . . . It is a very different thing to state, even unnecessarily, the jurisdictional grounds and then to get them wrong.

It is really a question of what conclusion, if any, one is disposed to draw from an inappropriately expressed recital.

13. In the present case, however, the recital that the issuing magistrate was satisfied as to the existence of reasonable grounds for the stated suspicion was clearly directed to the jurisdictional basis imposed by subs 187(2) of the Act. Even, if, as a matter of strict technicality, that subsection were to be construed as imposing no requirement for the issuing magistrate to be personally satisfied that there were reasonable grounds for the suspicion of the informant, the mere statement of that he was so satisfied did not in my opinion reveal jurisdictional error.

14. Regrettably, the same could not be said for the subject of this purported satisfaction. As Mr Gill pointed out, in each case the issuing officer had purported to be satisfied that there were reasonable grounds for suspecting the presence of "anything else which the Informant believes on reasonable grounds to be connected with such an offence".

15. As Spender J said in R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88 at [42]:

Section 187(2) of the Act, properly understood, and 187(4)(b), requires a Magistrate to be satisfied that there are reasonable grounds for suspecting that there is, or will be, a thing or things of a particular kind - naming them - on or in the clothing that is being worn by, or in any property in the apparent control of a named person, and which things are "connected with a particular offence", describing that offence. There is no basis for referring to "anything else".

16. In R v Khajehnoori [2005] ACTSC 76 at [10], Gyles J accepted this statement and held that the addition of the words, "or anything else", impermissibly extended the scope of the evidentiary material that might be searched for and seized under the warrant.

17. In R v Rees [2005] ACTSC 91 the warrant in question, unlike that in Khajehnoori, had no comma after the words, "or anything else" and Gray J held, at [24] that it was only those words, and not the preceding list of items, that were qualified by the words, "which the Informant believes on reasonable grounds to be connected with (the offence)". His Honour also cited the observation of Burchett J in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FLR 523 at 546 that, whilst a warrant must comply strictly with the statutory conditions of its issue, it should be read fairly, and not perversely. Nonetheless, his Honour found that there was a defect in the warrant in that it authorised a search for things specified only by reference to a belief held by the informant.

18. In the present case the relevant portion of the each of the warrants is in similar terms to that in R v Rees and I agree with his Honour's conclusion that s 187 of the Act does not empower issuing officers to authorise police officers to search private property for things identified only in that manner.

19. The real question is whether this irregularity renders the warrants invalid.

20. In Khajehnoori, Gyles J referred to Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FLR 523, Malubel Pty Ltd v Elder [No 2] (1998) 73 ALJR 269 and Von Arnim v Health Insurance Commission [2004] FCAFC 33 as authority for the proposition that the inappropriate words in a warrant could be severed without affecting the balance of the warrant where the effect of severance would be to narrow the scope of the evidential material that might lawfully be seized.

21. I accept that it may be appropriate to apply the concept of severance in a case such as Khajehnoori in which, as his Honour seemed to suggest, there had been no suggestion of any failure to reach the necessary satisfaction in relation to the specified articles. However, I do not accept that this concept may be relied upon as a panacea for all errors, irrespective of how egregious they may have been or, perhaps more importantly, what they may reveal of the issuing officer's approach to the his or her responsibilities. It is one thing to conclude that the issuing officer was satisfied that there were reasonable grounds to suspect the presence at the relevant premises of specific items and other things connected with a particular offence and another to conclude that the issuing officer had simply signed warrants without sensibly addressing the relevant legal test.

22. In Rees, Gray J acknowledged that a warrant may be invalid if so vaguely worded that a person affected by it cannot know the object of the search (Ousley v R (1997) 192 CLR 69 at 107) but said that, in the case of the warrant before him, the only uncertainty related to the impugned phrase and that it could be severed. His Honour noted that in Malubel Pty Ltd v Elder [No. 2], the High Court of Australia had held that the applicable principle was as stated in Peters v A-G (NSW) (1988) 16 NSWLR 24 at 41. In the relevant passage of his judgment in that case, McHugh JA (as he then was) had referred to still earlier authorities which had recognised that the doctrine of severability applied to warrants which were issued in excess of power, but said that it was not possible to sever a warrant where the invalid provision formed part of an inseparable context or would operate differently or produce a different result from that which was intended.

23. Gray J also relied upon s 43 of the Legislation Act 2001(ACT) which provides, inter alia, that if a provision of a statutory instrument would otherwise be interpreted as exceeding power, the provision is valid to the extent to which it does not exceed power, and the remainder of the instrument is not affected. As his Honour pointed out, it is clear from ss 13 and 14 of the Legislation Act that a search warrant issued under s 187 of the Act is a statutory instrument for this purpose. It may also be noted that in Peters v A-G (NSW) McHugh JA cited, at [41], a passage from the judgment of Dixon J in Andrews v Howell [1941] HCA 20; [1941] 65 CLR 255 at 281 concerning a somewhat similar provision which, he had said:

. . . throws a burden upon those attacking an entire regulation, part of which is bad, of establishing that if the regulation were confined within the limits of the power the result would be, not a partial application of the law, but a different plan or provision, or of establishing that an intention is to be found in the regulation that unless it receives its full intended operation it shall not operate at all.

24. McHugh JA said that the principles expounded in this passage were equally applicable to a subordinate instrument such as a search warrant.

25. However, Mr Gill's argument was not based upon the contention that the ambit of the search purportedly authorised by the warrant was too wide but, as I have mentioned, upon the contention that the issuing officer had applied the wrong test or, perhaps, no test at all.

26. In Khajehnoori, Gyles J held at [16] that a similar argument, that the words "or anything else" had also "affected the formation of the appropriate satisfaction" by the issuing officer, was also answered by severance. His Honour said that there could be no suggestion of failure to reach the necessary satisfaction in relation to the specified articles.

27. In R v Rees the argument was again rejected. In that case, however, Gray J suggested that it might have had greater force if the phrase relating to the reasonable belief of the informant had been construed as qualifying all of the items mentioned in the warrant, though he had not construed the phrase in that manner. His honour found that the recital had reflected the correct jurisdictional test and that there had been no reason to go behind it. Any misconception of the issuing magistrate had not affected the application of that test.

28. The present case is, however, somewhat different in that five warrants were issued on the same day, presumably at the same time, and, considered overall, the terms of these warrants strongly suggest that the issuing magistrate had given little, if any, thought to the test that he was required to apply.

29. Whilst this conclusion may be regrettable, it is not surprising. This is at least the sixth case since October 2004 in which the validity of search warrants have been challenged due to obvious errors, the others being Stankovich, Khajehnoori, Rees, R v Trevitt [2005] ACTSC 48 (7 June 2005) and R v PJ [2006] ACTSC 37 (2 May 2006). I regret to say that these cases suggest a pattern of warrants being issued without those charged with the relevant statutory responsibilities even bothering to ensure that the appropriate pro forma paragraphs have been downloaded from the computer correctly.

30. This is disturbing. As Connolly J observed in PJ, the provisions under which search warrants are issued are Territory laws. Hence, s 30(1) of the Human Rights Act 2004 (ACT) requires the court to interpret the provisions in a manner that is, as far as possible, consistent with human rights. Those rights include the right of everyone "not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily" (s 12) and "the right to liberty and security of person" (s 18). Yet, there is little reason to believe that the importance of these rights has been reflected in a consistently conscientious approach to applications for the issue of warrants to substantially override them. It may be difficult for the community to accept that a requirement for warrants to be issued by judicial officers will be an effective safeguard against any abuse of the new "anti-terror laws", if those presently charged with issuing warrants repeatedly fail to undertake their responsibilities conscientiously.

31. It has also been necessary for a great deal of time and expense to be devoted to the resolution of issues that should never have arisen. Two of the six judges who have heard these cases were based interstate and numerous police officers and other witnesses have also had to be brought to court. The Crown and the various accused have all had to suffer unnecessary delay and incur unnecessary legal fees and/or other expenditure. In at least two cases the irregularities have led to the exclusion of potentially important evidence upon which the Crown had intended to rely to prove the commission of serious offences. The only consolation may lie in the fact that the warrants in question in this case were issued prior to the judgments in the other five cases, and in the hope that the observations in those cases may have prompted a more stringent approach since.

32. In the present case, I am satisfied that the warrants relied upon were invalid and the searches carried out in reliance upon them illegal.

33. Accordingly, the admissibility of evidence obtained during the course of such searches falls to be determined in accordance with the provisions of s 138 of the Evidence Act 1995 (Cth), the relevant portions of which are in the following terms:

(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.

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

(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. In the present case the evidence allegedly obtained during the searches of the houses was both highly probative and important to the Crown case against the accused. The search at one house revealed a substance with a gross weight of 26.947 grams of which 18.1 % was methamphetamine, a sealed bag of cannabis, some cannabis seeds and a machine capable of being used to vacuum seal items in plastic bags. At each of the other houses the search revealed a hydroponics system and cannabis plants. The offences charged are serious and an effective prosecution of them is clearly in the public interest. It has not been suggested that the police officers who conducted the searches did not act in the conscientious belief that the warrants were valid.

35. I accept that it is also in the public interest that the power provided by s 187 of the Act be properly exercised and if the apparent pattern of ill-considered warrants is continued this factor will, no doubt, assume progressively greater weight. In the long run, courts cannot tolerate a continued disregard of legal requirements that are intended to provide procedural safeguards against the unjustified infringement of rights and it is not inconceivable that further cases will arise in which judges feel compelled to reject potentially crucial evidence on this ground. However, in the present case, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in reliance upon the warrants in question.

36. Mr Gill also relied heavily upon allegations that the police officers who attended at the houses for the purposes of executing the warrants used unnecessary force. It must be borne in mind that in suspected drug cases there is almost inevitably some risk that drugs will be flushed down the toilet or otherwise discarded if entry is not effected without delay and steps are not taken to restrain those inside from doing so. There may also be some risk of flight or resistance and the attending police officers will be entitled to take reasonable steps to detain occupants and ensure their own safety. These considerations may require the use of at least some force, though it should obviously be avoided if possible and in any event limited to that which is reasonably necessary.

37. Whilst I have considered the competing submissions of counsel concerning the evidence of force used in the present case, I am not satisfied that the actions of the police went beyond what was reasonably necessary in the circumstances. Furthermore, even if I had concluded that one or more police officers had used excessive force that would not, of itself, have warranted the exclusion of evidence obtained during the subsequent search of the relevant premises. It may be noted that s 138 applies only when the evidence in question was obtained by, or in consequence of, the impropriety or illegality alleged and the evidence does not suggest that the discovery and seizure of things found during the search were causally related in this manner to any excessive use of force.

38. Mr Gill submitted that this was unnecessary. In support of this contention, he stressed the importance of the public policy considerations referred to by the High Court of Australia in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and, in particular, the undesirability of giving curial approval to unlawful conduct by those whose task it is to enforce the law. This is an important consideration, but neither the common law nor the provisions of s 138 support the contention that any improper or illegal act by a police officer should result in the exclusion of relevant evidence that had not been obtained by or as a consequence of that act. Mr Gill also relied upon statements made by Adams J in Bunning v Cross but those statements addressed a different issue. The offence charged in that case had allegedly been committed in response to the impugned conduct and his Honour did not suggest that a causal link was unnecessary but, rather, that it may not always be sufficient. I accept that there may well be scope for debate as to the precise ambit of s 138, but I do not accept that it may be invoked merely because a police officer carrying out a lawful search of premises used some unnecessary force which has not been shown to have caused or materially contributed to the obtaining of the evidence in question.

39. In my opinion, the force used in this case did not constitute an impropriety or contravention of law but, in any event, it has not been shown to have had any influence on the discovery or seizure of the relevant items. Hence, it did not provide a further ground upon which the provisions of s 138 could have been invoked. Furthermore, even if, despite the absence of such a causal link, the use of excessive force could have been relevant to the discretionary considerations arsing under s 138 by reason of the illegality of the searches, the allegations made in the present case would not have been sufficient to have tilted the discretionary balance in favour of the accused.

40. The evidence of items found and seized during the searches will be admitted.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the Crown: ACT Director of Public Prosecutions