R v Christensen

[1] The applicant is charged on indictment with two counts of unlawful possession of dangerous drugs: 3,4-methlylenedioxymethamphetamine (ecstasy) and methylamphetamine. He seeks a ruling pursuant to s 590AA of the Criminal Code that certain evidence located in the course of a search of premises is inadmissible, on the basis that the warrant pursuant to which it was seized was not valid.

[2] The search warrant in question was executed at about 7.00 am on 24 July 2004 at Rise, a club at Fortitude Valley. It is what is described as a "recovery" club: unlicensed premises to which club-goers repair in the early hours of the morning. Seventy-six persons were found there; 18 of them were arrested on a total of 28 charges. In the course of the search, it is alleged, a bag belonging to the defendant was searched. In it were found clip-seal bags containing 114 tablets and a small quantity of a white crystal substance, as well as separate sums of money amounting respectively to $1,160 and $18,050.

[3] The application for a warrant to enter and search the premises was made pursuant to s 68(1) of the Police Powers and Responsibilities Act 2000 ('the Act'), which provides:

"A police officer may apply for a warrant to enter and search a place (search warrant) to obtain -

(b) evidence that may be confiscation related evidence in relation to a confiscation related activity."

Such an application must be sworn and must state the grounds on which the warrant is sought[1]. If, in the course of entry and search, "it is intended to do anything that may cause structural damage to a building", the application must be made to a Supreme Court judge[2].

[4] Section 69 contains this constraint on the issue of the warrant:

"The issuer may issue a search warrant only if satisfied there are reasonable grounds for suspecting evidence of the commission of an offence or confiscation related evidence -

(b) is likely to be taken to the place within the next 72 hours."

A warrant issued on the basis of the first of those suspicions, that evidence is at the place, ends seven days after issue; if the suspicion is of the second kind, that evidence is likely to be taken there, it ends after 72 hours[3]. Section 73(1) requires that a warrant issued in relation to any offence state "brief particulars of the offence for which the warrant is issued" [4] and "any evidence that may be seized under the warrant"[5]. Section 74 sets out the powers conferred by a search warrant and specifies additional powers which may be authorised; the latter include the power to do anything which may cause structural damage (where a Supreme Court judge issues the warrant)[6] and the power "to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person"[7].

[5] The warrant in this case was issued by a magistrate on 22 July 2004. It was addressed to Detective Senior Constable Jones "or all police officers of the Queensland Police Service." It commenced by expressing the issuing Magistrate's satisfaction that there were reasonable grounds

"for suspecting evidence of the commission of the offence is at the place/is likely to be taken to the place within the next 72 hours."

The details of the premises were given. The material parts of the warrant, so far as this application is concerned, follow:

"# This warrant is issued in relation to an offence

That on the 24th day of July 2004 at Brisbane in the State of Queensland one person unknown did unlawfully supply a dangerous drug namely methylamphetamine to another person namely person or person unknown

# This warrant is issued in relation to a forfeiture proceeding authorised under the Police Powers and Responsibilities Act 2000.

Details of evidence that may be seized under this warrant.

Dangerous drugs namely methylamphetamine, ecstasy (MDMA), Fantasy (GBH), amphetamine, cannabis, glass crystal meth pipes, procceds (sic) of sale of drugs"

The powers conferred by the warrant were then set out; notably they included a power to do anything that might cause structural damage to the building and a power to search anyone found on the premises. The warrant was expressed to be valid for seven days.

[6] The applicant complained that the warrant could not be based on reasonable grounds for suspecting evidence of the commission of an offence might be found, because it did not name any suspect; it failed to specify an offence with sufficient particularity and was fishing; it was too wide in its scope, authorising detention and search of an unlimited number of people; although it authorised structural damage to a building, it had been issued by a Magistrate rather than a Supreme Court Judge; and it purported to be valid for seven days, but could only extend for 72 hours (since it was expressed to be issued in relation to a suspicion that evidence was likely to be taken to the premises within the next 72 hours).

[7] Some of the matters complained of clearly arise from less than careful attention to the detail of the warrant. The issuer failed to indicate whether the operative suspicion was that evidence was at the premises or was likely to be taken there. It was not within the power of a magistrate to authorise structural damage, but that power was left in the warrant. Clearly enough, there was no question of any forfeiture proceeding, but that reference was not deleted. It is evident that the issuer of the warrant simply neglected to strike out inapplicable parts. These omissions are all the more remarkable given the attention drawn by the Court of Appeal in Bensted v Edwards[8] to such errors and their capacity to mislead both those executing warrants and those subject to search. But more basic causes for concern lie in the descriptions of the offence and the evidence to be seized.

[8] One of the purposes of the Police Powers and Responsibilities Act is "to ensure fairness to, and to protect the rights of, persons against whom police officers exercise powers under this Act."[9] In that context it is reasonable to construe the requirement for a statement of "brief particulars of the offence" as directed to ensuring that an individual affected is able to discern from the warrant itself the scope of the search authorised by it. I have discussed elsewhere the divergence of view as to whether the purpose of stating the offence in the warrant is to enable those affected "to know the exact object of the search" or, more broadly, the "area of search".[10] Whichever view one takes, the description of the offence in this case could not have set any rational parameters for the search. It identified no suspect, gave no particular as to place of offending beyond "Brisbane", and gave a particular as to time which was nonsensical: although issued on 22 July, the warrant purported to relate to an offence on 24 July. The details of the evidence which could be seized, including an array of drugs other than methylamphetamine, bore no obvious relation to the offence alleged. This warrant, in my view, was hopelessly wide and obscure and was bad for that reason alone.

[9] However, a more fundamental question - whether there was any power to issue the warrant at all - emerged when Constable Jones gave evidence and the information on which the warrant was issued was placed before the Court. Constable Jones' evidence made it clear that the reference in the warrant to an offence on 24 July 2004 was not a typographical error. His explanation as to the reasons for seeking the warrant and the way it was to be used appears in the following passage of transcript:

"Constable Jones, can I ask you: the search warrant was based on a particular suspected offence of supply? -- Yes.

Are you able to say now when that supply took place or when it was believed to have taken place? -- Well, basically what we were alleging is that it was an ongoing situation with multiple persons, both staff and patrons in the club engaging in supplies - the supply of dangerous drugs. We had numerous informants - multiple informants, in fact, providing us with information in relation to this particular venue, and we had put a considerable amount of work and research into this matter, and that was the reason for the previous search warrant on terms associated with Boom. It was more - it was a situation where we were testing information provided by the informants to fund out whether it could be justified and out results from those search warrants certainly indicated the fact that we would proceed with this particular matter, as well.

Well, the actual warrant says it's issued in relation to an offence that on the 24th day of July, which is the actual day of the raid ------?-- Yes.

------- a supply took place? -- The way that that's worded, it's the same as - it's quite a standard, sort of, procedure when taking out a warrant, the same as if I was to do a warrant on a person tomorrow in relation to possession of a dangerous drug, you - you're acting on information that had been received from informants and it's - I suppose the way they did it is it's in anticipation that that is actually occurring.

So that the date's inserted in anticipation the offence will occur on that date? -- Yes, it's the same as like - as I said, like - if I was to execute a warrant tomorrow on a particular place because I received a Crime Stoppers file, for example, that certain persons smoked marijuana at a particular house, the warrant - the way that we would issue the warrant or take the warrant is that they would be in possession of the drug on the particular date that we raid there. And we don't 100 per cent know that, that they're going to be in possession of that drug on that day, but that's the information we received. So in this particular case we received information that persons supply dangerous drugs in that venue on a regular basis on Saturday mornings, for example."

[10] The information on which the warrant was based was not initially tendered because of a concern that it might disclose the identity of confidential sources. It was not necessary for me to reach any view as to the validity of that concern, because counsel for the applicant agreed the document could be tendered and inspected by me without disclosure to him. For present purposes, it is sufficient to say that the document sets out in general terms information about supplies of dangerous drugs by named individuals at the club, without identifying any particular transaction or any particular items of evidence which might be found on the premises. What is abundantly clear from the evidence of Constable Jones and from the information itself is that at the time the warrant was sought there was no specific offence in respect of which it was hoped to obtain evidence. Nor could the issuer have thought there was. Rather, the purpose of the warrant was to search the premises in the expectation that individuals would be apprehended in the course of committing offences; as indeed occurred. In effect, what was sought and issued was a general warrant of a kind not permitted at common law nor authorised by the statutory provisions relied on here.

[11] The warrant was invalid and the search, in consequence unlawful. Mr Copley, for the Crown, argued that, notwithstanding any such conclusion, I should exercise the Bunning v Cross[11] discretion in favour of admission of the evidence obtained from the search of the applicant's bag. The police officers involved had acted in good faith; it could be expected that a ruling as to the invalidity of the warrant would make clear the error, and ensure it was not repeated; and there was a strong public interest in the prevention of drug-related offences on such premises. I should say at once I accept the contention that the police officers acted in good faith. Constable Jones was entirely frank in explaining the basis on which the warrant was obtained; the warrant on its face strongly suggests the misapprehension as to its possible ambit which underlay its issue. But while I am satisfied that there was no deliberate disregard of the law, this can only be regarded as a reckless disregard: no proper attention can have been paid to the requirements or purpose of the relevant provisions.

[12] The importance of strict adherence to statutory requirements in the context of search warrants has repeatedly been emphasised.[12] This was not some mere technical defect in the warrant; the entire basis on which it was sought and issued was misconceived and wrong. The offences, if made out, are undoubtedly serious. Assuming that the tablets seized are proved to be ecstasy, a large quantity is involved. However, the purported use of a power which entailed the invasion of the privacy of citizens to such an extent, with so little regard for what was actually permitted by the statutory provisions, is an error of such proportions as to tilt the balance of public interest against the receipt of the evidence so obtained.

[13] The evidence obtained against the applicant in the search of the Rise club on 24 July 2004 is excluded.

[8] [2003] QCA 145; (2003) 138 A Crim R 552.

[10] Wright v Queensland Police Service [2002] QSC 46; (2002) 2 Qd R 667 at 676.

[11] [1978] HCA 22; (1978) 141 CLR 54.

[12] George v Rocket [1990] HCA 26; (1990) 170 CLR 104 at 110-111; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at 106-107.