R v Gallagher; R v Burridge

Court of Criminal Appeal (NSW)|2015-08-10|Before: Gleeson JA, Adams J, Beech-Jones J, Jones J

P. O'Connor - Gallagher B. Cochrane - Burridge

Judgment

GLEESON JA: I agree with the reasons and with orders proposed by Beech-Jones J.
ADAMS J: I agree with Beech-Jones J.
BEECH-JONES J: This is an appeal by the Director of Public Prosecutions (the "Director") under s 5F(3A) of the Criminal Appeal Act 1912 against a ruling by a District Court judge (the "primary judge") excluding the evidence that led to the granting of search warrants on two rural properties at 185 and 187 Stuart Road, Lawrence, as well as the evidence obtained during and as a consequence of their execution (the "excluded evidence").
Each respondent was an occupier of one of the properties and was charged with various drug offences following the discovery of, inter alia, cannabis plants and leaf on those properties. The search warrants were obtained following the attendance of a police officer, Senior Constable Hembrow, at the property said to be occupied by the respondent, Mark Gallagher, to conduct a firearms audit. Officer Hembrow discovered a cannabis plantation while attending that property.
Before the primary judge, the Respondents contended that Officer Hembrow conducted an unlawful search when he discovered the cannabis plants on Mr Gallagher's property. They contended that it followed that the excluded evidence should be rejected under s 138 of the Evidence Act 1995. It relevantly provides: "138 Discretion to exclude 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. … (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."
The primary judge held that the excluded evidence was obtained as a consequence of a "contravention of an Australia law". Although the precise law that was contravened was not identified it was accepted in this Court that it was so much of the common law that prohibits a trespass on private property. Otherwise his Honour was not satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence.
The Director challenges each of these findings. In so far as his Honour found that the excluded evidence was obtained as a consequence of a trespass, the Director challenged one aspect of the primary judge's reasoning which concerned the scope of the implied licence proffered to an entrant upon the property occupied by Mr Gallagher. For the reasons set out below, I do not consider it necessary to finally determine that contention. Otherwise the Director accepted that at the time Officer Hembrow located the cannabis he was acting outside the scope of any such implied licence, but contended that the actions of Officer Hembrow were authorised by s 88 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA"). For the reasons set out below I reject that contention.
The Director also contended that the primary judge's exercise of the "discretion" conferred by s 138(1) to reject the excluded evidence also miscarried. While I do not accept all of the Director's contentions, for the reasons set out below I consider that this aspect of his Honour's judgment was erroneous because his Honour erred in finding that the relevant officer's conduct was "reckless" and mischaracterised the gravity of his contravention. Instead, I consider that the officer's conduct could at worst only be characterised as careless and that the gravity of the contravention was minor. I consider that the evidence should be admitted and orders should be made accordingly.

Background

The search warrants were issued under Division 2 of Part 5 of LEPRA. They were executed on 6 March 2012. Mr Gallagher is alleged to have been the occupier of 187 Stuart Road as at that date. The execution of the search warrant is said to have yielded a total of 5.073 kilograms of cannabis leaf and a total of 283 cannabis plants. Mr Gallagher is also alleged to have made admissions during the search and afterwards to cultivating the plants, possessing the cannabis leaf for the purposes of supply and having possessed and supplied cannabis oil from a previous year's crop of cannabis. The material before the primary judge suggested that a reasonably sophisticated commercial operation of cultivating and distributing cannabis was conducted over a sustained period. For example, in bush on one part of 187 Stuart Road there were four constructed pens each with a built up soil bed and a sprinkler system that was connected by a pipe to a nearby dam on the property. Also found during the search was a firearm said to belong to Mr Gallagher's father. Mr Gallagher did not have a licence to possess the firearm.
The Respondent, Lynne Maree Burridge, is alleged to have been the occupier of 185 Stuart Road as at the date of the execution of the search warrant. A search of the house on the property located a small amount of cannabis leaf and seeds. A search of the rest of that property revealed a large wire enclosed area containing 136 cannabis plants, a smaller plot containing 28 cannabis plants, a further plot containing 34 cannabis plants and a small shed containing 20 small cannabis seedlings. Also found within a small garden shed were two bags containing a total weight of 1.8 kilograms of cannabis leaf and 2 jars of cannabis seed. It is alleged that both Respondents admitted that it was Mr Gallagher who established and maintained the cultivation and supply operation on 185 Stuart Road and that he paid Ms Burridge for the use of her land.
Mr Gallagher was charged with three counts of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the "DMTA"), one count of cultivating a prohibited plant not less than the commercial quantity, being 443 plants, contrary to s 23(2)(a) of the DMTA, one count of cultivating a prohibited plant by enhanced indoor means being not less than the small quantity but less than the commercial quantity contrary to s 23(1A) of the DMTA, and one count of possessing a firearm without a licence or permit contrary to s 7A(1) of the Firearms Act 1996. Ms Burridge was charged with supplying a prohibited drug, namely the 1.867 kilograms of cannabis leaf, cultivating a prohibited plant by enhanced indoor means not less than the small quantity but less than the commercial quantity, namely the 20 seedlings noted in [10] and knowingly taking part in Mr Gallagher's cultivation of the cannabis plants on her property contrary to s 23(1) of the DMTA.
As stated, the Respondents' application before the trial judge was that the information which formed the basis for the application for the search warrants, namely the belief that there were "thing[s] connected with a searchable offence" (LEPRA, s 47(1)) located on the two properties, was obtained as a result of an illegal search on part of 187 Stuart Road by Senior Constable Hembrow on 5 March 2012. The primary judge upheld that contention. As a consequence, his Honour rejected the evidence concerning the relevant part of Senior Constable Hembrow's inspection on 5 March 2012 and also rejected the "admission of the evidence found during the execution of the [search] warrant".
At the hearing of this appeal it was common ground that his Honour's ruling extended to the admissions obtained during the execution of the search warrants and an electronically recorded interview with a suspected person ("ERISP") conducted with Mr Gallagher after the search. The effect of the primary judge's ruling was to exclude the entirety of the Crown case against both Respondents. An appeal can only be brought under s 5F(3A) of the Criminal Appeal Act 1912 if the effect of the challenged ruling is to eliminate or substantially weaken the prosecution's case. There is no doubt that the challenged ruling had that effect. The Respondents did not contend otherwise.

Senior Constable Hembrow's visit on 5 March 2012

At about 3.20pm on 5 March 2012 Senior Constable Hembrow attended at 187 Stuart Road, Lawrence to conduct a fire arms audit on the person he understood to be the occupier of the property, Paul Thompson. However, Mr Gallagher had assumed occupancy of that property. He was in the process of purchasing it from Mr Thompson.
The relevant events from Officer Hembrow's arrival at 187 Stuart Road until his departure were set out in his statement which was before the primary judge. His Honour made findings consistent with the following narrative, although his Honour also made further findings: "4. On arrival at the property the front gate was open. I drove a short distance to a sloping clearing where I could see a green tin shed on the top flat area in front of me and a residence to the right of me. I drove the Police vehicle to the side of the residence closest the marked track got out of the vehicle and walked past a container at the rear of the residence to the entrance door at the side of the house. There looked to be no furniture in the residence and no person home. 5. I then walked to the green shed and could see through the double glass doors that the shed looked to be the main living residence of the two buildings. As I stood there looking around the property I yelled "Anybody home". As I yelled I saw movement toward the dam area about fifty metres away from the shed. 6. I walked to the dam area and could not see any person. On the dam wall I noticed a white pump and an irrigation pipe running from the pump. I called out again and there was no movement or answer. 7. I then walked from the dam to the track which leads back to the Police vehicle. The track also runs further down the hill. As I stopped and looked down the track I could see a plastic irrigation pipe exposed on the right side of the track. At this point the track bends to the right and you can see further down the track. I could see the top section of a large caged area on the left side of the track about thirty metres away. 8. I walked to the area and I could see the caged area had a number of cannabis plants inside. I could see there was another two areas close by set up the same way with a number of cannabis plants in each area. I estimated at a quick look to be fifteen to twenty plants in each plot about 1.5 metres tall. I could see an irrigation system set up from the pipe that ran from the dam. The irrigation pipe continued on into the bush area past the three cages. I did not go any further and returned to the Police vehicle that was parked beside the residence. 9. As I got back to the vehicle I observed a white utility enter the location and pass to the rear of the Police vehicle. The vehicle then drove onto the flat area near the green shed then backed back and turned and was driving back out of the property. As it passed I yelled out and waved to the driver of the vehicle to attract his attention. The vehicle slowed then turned toward the rear of the Police vehicle. I approached the driver's door and said "Are you Paul Thompson?" He said "No". We then had a conversation about Thompson and a firearms file I had in my hand."
The person referred to in [9] of this extract that Officer Hembrow spoke to was Brett Burridge. He resided with Lynne Burridge. Officer Hembrow learnt from Mr Burridge that Mr Gallagher was the occupier of 187 Stuart Road. After he returned to Lawrence Police station Officer Hembrow commenced preparing applications for search warrants in respect of the two properties which were executed the following day.
Before the primary judge there was tendered some oral evidence given by Officer Hembrow at a committal hearing in January 2013 and before another District Court judge in June 2014. On 16 December 2014 Officer Hembrow gave evidence before the primary judge and his Honour also conducted a view of the premises under s 53 of the Evidence Act which was transcribed.
In his evidence at the committal hearing Officer Hembrow stated that, although he recognised movement near the area of the dam, he did not "recognise it to be a person" but based on that "thought [someone] might've been down there". An aerial photograph of the area indicates that the area between the shed and the dam was cleared of bush. The dam was located to the south of the homestead and the shed.
Officer Hembrow also explained that there was a clearing between the dam and the track which "was the best way down and the quickest way back to the car". He said that, as he moved through the clearing to the track, he noticed the exposed section of the irrigation pipe referred to in [7] of the above extract from his statement. The track runs in a north-south direction. His vehicle was located at the northern end of the track near the homestead. The exposed section of the pipe was located "four or five steps" on the southern side of the point at which he bisected the track. The cages were located a further 30 metres to the south-west off the track.
In his evidence on 2 June 2014 Officer Hembrow was questioned about the point when he diverted from his journey on the track leading back to his vehicle to inspect the irrigation pipe and followed it to the cages containing the cannabis plants. He agreed that at that point he was not looking for the owner or occupier to conduct his firearms audit. He also agreed that he had insufficient information at that point to justify obtaining a warrant ("I hadn't seen any cannabis plants at that stage"). He was asked what his lawful justification for inspecting the pipe and following its course was. He replied: "A. Suspicious activity of what's going on on that property, as in it's a bush block, very rough, rocky and for somebody to have [a] pipe leading down to a caged area like that it's highly suspicious. … Q. I'd suggest to you, you had no lawful right to proceed beyond the pipe, did you? A. Yes I did. Q. What was that? A. The possibility of illegal activities, because it's very unlikely, as I said, that there's a pipe running down, down a hill to a caged off area in a real bushy, scrubby property, that far away from the house. Q. But you know don't you that you have no general power to search private land because you think something may be suspicious? A. No my - when I've - I couldn't locate the owner down at the dam, I had all intentions of going back to the car, which is what I was doing and then I saw the pipe and that led to me believing - and from that pipe, without even moving, standing at that pipe you can see down there to - to the cages. That's suspicious activity to be so far away from the house to be having a caged area in such a rough, scrubby area. Q. Suspicious or not, you had no right to go there, did you? A. No I feel I do have a right to go there. Q. What's the right please? A. Being on the property, for legitimate purpose and in seeing those things that I saw, such as the pipe and the cage, it led me to believe that yes there was things happening on that property, such as illegal events. It was just obvious, because I've been around bush properties for three-quarters of my career and that's - I've seen a number of cages and a number of set-ups and the way people set them up and to me, from that pipe, when I saw those cages, that was an illegal activity which I thought may have been."
Later in his evidence Officer Hembrow was challenged about his understanding of his right to enter private property. He maintained that he had a "lawful purpose" to enter the property for the firearm inspection.
I have set out these passages in some detail because both before the primary judge and in this Court there was some debate as to what Officer Hembrow asserted was his authority to inspect and follow the irrigation pipe. In my view it was clear that Officer Hembrow stated that he believed that, having entered the property lawfully, he was entitled to investigate something that appeared suspicious. At no point during his evidence was it suggested to Officer Hembrow that he was not giving honest evidence in either describing what he did on 5 March 2012 or his belief as to his lawful authority to traverse 187 Stuart Road (including that in walking to the dam he was looking for the occupier).

The primary Judgment

In his judgment the primary judge set out a description of Officer Hembrow's visit to 187 Stuart Road in terms consistent with the above. His Honour noted the common law principle stated by Brennan J in Halliday v Nevill [1984] HCA 80; 155 CLR 1 ("Halliday") at 10, namely that a "police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law". The primary judge then addressed the principles concerning the scope of the implied licence proffered by occupiers to entrants that is commonly inferred from the existence of gates and pathways leading to their residence. The governing principle was stated in Halliday at 6 to 7 (per Gibbs CJ, Mason, Wilson and Deane JJ): "While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked (cf Edwards v Railway Executive [1952] AC 737 at 744). The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it."
No question arises in this case concerning whether the implied licence referred to in this passage was withdrawn or revoked. Otherwise, it can be seen from this passage that the scope of the implied licence involves a consideration of the characteristics and layout of the property and the purpose of the entrant. As already noted, at least so far as he was asked to justify his entry onto the property at 187 Stuart Road and his walking to the dam, Officer Hembrow pointed to his intention to undertake a firearms audit. In terms of the above passage from Halliday, Officer Hembrow was in this respect pursuing a "purpose of lawful communication" with the occupier.
Ultimately the primary judge concluded that the implied licence entitled Officer Hembrow to enter the premises, as well as access the paths and tracks that lead to the residence and from the residence to the shed. However his Honour found that there was "no implied licence to go to other parts of the property" which would include so much of Officer Hembrow's visit which involved him moving from the shed to the dam and beyond. His Honour added that, even if he was wrong in that conclusion, the implied licence did not authorise Officer Hembrow to walk "from the dam wall in the southerly or south-westerly direction towards the pipe and the cages".
Next, the primary judge addressed whether the movement by Officer Hembrow on areas of the property for "which there was no implied licence was otherwise permitted by statute". His Honour stated that Officer Hembrow had maintained that he was authorised either by s 10 of the LEPRA or s 19 of the Firearms Act 1996. In this Court it was accepted by the Respondents that his Honour erred in so asserting. Officer Hembrow only pointed to those provisions as the source of his authority to enter the property. His Honour held that those provisions had no application.
The primary judge found that the movement of Officer Hembrow from the "shed towards the dam was unlawful but more importantly … his movement from the dam wall to the exposed pipe not in the direction of his motor vehicle was unlawful".
The primary judge then undertook what his Honour described as a "balancing exercise" in relation to the various factors in s 138(3). His Honour accepted that the probative value of the excluded evidence was "extremely high" in that the Crown stated that it was the only evidence it had to support its case (s 138(3)(a); 138(1)(b)). His Honour accepted that the Respondents were accused of serious offences (s 138(1)(c)).
Critically, the primary judge held that Officer Hembrow's contravention was "of substantial gravity" (s 138(1(d)) in that it was not in the "public interest for police to attend premises in compliance with an implied licence to enter premises and then go to other parts of the premises" or to "deliberately go to parts of premises which arouse suspicion where such suspicion is not sufficient to ground an application for a search warrant". In relation to s 138(3)(e) the primary judge found: "It seems to me that I cannot be satisfied that the impropriety or contravention was deliberate but bearing in mind the amount of care that in my view is necessary in my view it was reckless."
As I will explain, the Director's principal complaint concerned the primary judge's findings as to the gravity of Officer Hembrow's contravention and the recklessness of his conduct.
In relation to s 138(3)(f), his Honour noted that Article 17 of the International Covenant on Civil and Political Rights precluded arbitrary or unlawful interferences with a person's "privacy, family, home or correspondence".
Lastly, his Honour referred to the statement by Spigelman CJ in R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 at [3] that the "more serious the offence the more likely it is that the public interest requires admission of the evidence", and a statement to similar effect by McClellan CJ at CL in R v Camilleri [2007] NSWCCA 36; 68 NSWLR 720 at [35]. Nevertheless, his Honour concluded: "What is clear from what was said in Dalley and Camilleri is that the gravity of the crime is not final in the determination, it is still a matter of the balancing exercise that I need to undertake in accordance with s 138 of the Evidence Act 1995. Undertaking that balancing exercise I do not propose to admit the evidence of the finding of the cannabis plants by Senior Constable Hembrow on 5 March."

Contravention of an Australian Law

It was common ground in this Court that the powers of entry without warrant conferred by ss 9 and 10 of LEPRA were not applicable to the circumstances facing Officer Hembrow when he entered and traversed 187 Stuart Road on 5 March 2012. Officer Hembrow was not seeking to arrest any person (cf s 10(1)) and nor was it suggested that there was an actual or threatened breach of the peace or any actual or threatened physical harm to any person (cf s 9(1); see State of NSW v McCarthy [2015] NSWCA 153).
As stated, the Director contended that the primary judge erred in finding that the excluded evidence was obtained in contravention of an Australia law. The Director did not contend that his Honour misstated the principles applicable to ascertaining the scope of the implied licence to enter private property. However at the hearing of the appeal the Director challenged his Honour's finding that there was "no implied licence to go to other parts of the property", that is beyond the homestead and the shed. As noted, an aerial photograph of the property that was tendered suggests that the area from the shed to the dam was cleared. With a rural property it is conceivable that the implied licence extends to a cleared area around a homestead which a visitor pursuing a lawful purpose might reasonably traverse to look for an occupier, as Officer Hembrow was. In relation to the north-south track described in [19] Officer Hembrow repeatedly stated that it was the most direct path to his vehicle. I am conscious that the primary judge had the benefit of a view of 187 Stuart Road and that the advantage his Honour enjoyed in doing so was not shared by this Court. Nevertheless, I am very doubtful that in moving a mere 50 metres across a cleared area from the shed to the dam to look for the occupier and then embarking on the most direct route on a clearly marked track back to his vehicle Officer Hembrow became a trespasser.
However I am reluctant to take these misgivings further based on the material that was presented. A determination of this issue may be of considerable importance to the rights and obligations of many persons who live in rural areas. The Director's challenge to this aspect of the primary judge's finding was not developed in detail. The Court was not referred to any authorities on the point beyond Halliday. I will return to address this at [43] after considering the next aspect of the Director's challenge.
The Director also challenged the primary judge's finding concerning the unlawfulness of Officer Hembrow's conduct in diverting from his return journey to his vehicle to inspect the pipe and its destination. The Director accepted that Officer Hembrow's diversion from his journey was outside the scope of the implied licence proffered by the occupier. Nevertheless, the Director contended that Officer Hembrow derived legal authority to inspect the pipe and its destination from Part 7 of LEPRA and specifically s 88 which provides: "A police officer who is lawfully on premises (whether by authority of a crime scene warrant or for any other lawful reason) may: (a) establish a crime scene, and (b) exercise crime scene powers in accordance with this Part, and (c) stay on the premises for those purposes."
The power conferred by s 88(a) to "establish a crime scene" can only be exercised if relevantly the officer "suspects on reasonable grounds" that "a serious indictable offence is being, or was, or may have been, committed on the premises and it is reasonably necessary to establish a crime scene in or on the premises to preserve, or search for and gather, evidence of the commission of that offence" (LEPRA; s90(1)(b)). A "serious indictable offence" means an indictable offence that is "punishable by imprisonment for life or for a term of 5 years or more" (LEPRA; s 3). This includes supplying prohibited drugs and cultivating prohibited plants. LEPRA is less than clear in specifying what establishing a crime scene actually means. Subsection 91(1) simply provides that "a police officer may establish a crime scene on premises in any way that is reasonably appropriate in the circumstances".
The crime scene powers are enumerated in s 95(1) of LEPRA. They are extensive and include such matters as excluding persons from the crime scene, preventing persons from removing or altering evidence, or removing an obstruction from the crime scene (s 95(1)(a) to (f)), opening anything that is locked, digging up part of the crime scene and removing walls, ceilings, roofs or floors (s 95(1)(g) to (o)). Presumably the Director specifically relies on s 95(1)(g) which confers a power to "perform any necessary investigation, including, for example, search[ing] the crime scene and inspect[ing[ anything in it to obtain evidence of the commission of an offence".
However s 88(b) requires that such powers be exercised "in accordance with this Part". This includes s 92 which relevantly provides: "92 Exercise of powers at crime scene (1) A police officer may exercise any of the crime scene powers set out in section 95(1)(a)-(f) if: (a) a crime scene has been established under this Part, and (b) the police officer exercising the power suspects on reasonable grounds that it is necessary to do so to preserve evidence of the commission of an offence in relation to which the crime scene was established. (2) A police officer may exercise any of the other powers set out in section 95(1), but only if: (a) a crime scene has been established under this Part, and (b) the police officer or another police officer applies for a crime scene warrant in respect of the crime scene, and (c) the police officer suspects on reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence. …"
The Director accepts that the primary judge was not referred to these provisions but contends that because, objectively considered, Officer Hembrow's actions had a lawful basis then this Court should intervene regardless. Leaving aside any issue as to the appropriate approach to be taken if the Director seeks to agitate new points on an appeal under s 5F(3A) or whether Officer Hembrow in fact established a "crime scene", the difficulty with the Crown's contention is that they are dependent on Officer Hembrow having a particular state of mind. If Officer Hembrow did not form the necessary opinion(s) to invoke compulsive or intrusive powers, then this Court cannot hypothesise that he should or could have. In the case of powers of arrest that are similarly conditioned the Court "does not … look beyond what was in the mind of the arresting officer" as it is "the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed" (O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 at 298 per Lord Hope of Craighead; cited in Dowse v New South Wales [2012] NSWCA 337 at [12] per Basten JA).
In this case for an officer to exercise the crime scene power conferred by s 95(1)(g), either that officer or another officer must at some point apply for a crime scene warrant (LEPRA, s 92(2)(b)). There was no such application made at any time. Further, to exercise that power the officer must in fact have formed a suspicion "on reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence" (LEPRA, s 92(2)(c)). I have set out Officer Hembrow's evidence above. Officer Hembrow accepted that he did not form the opinion necessary to apply for a search warrant until he saw the cannabis plants after following the irrigation pipe. Instead, at the time he found the pipe he thought that it revealed "suspicious activity" and the "possibility of illegal activities", but he did not state that he inspected the pipe or investigated its destination to in order "to preserve evidence of the commission of an offence". Instead, Officer Hembrow was investigating whether such evidence existed. The question of the preservation of evidence only arose once he discovered the cannabis plants. However by that time he was clearly a trespasser.
Accordingly I would reject the challenge to so much of his Honour's judgment that found that Officer Hembrow contravened an Australia law when he diverted from his return journey to his vehicle to investigate the exposed irrigation pipe and its destination.
This conclusion means that it is not ultimately necessary to resolve so much of the Director's challenge that concerned Officer Hembrow's anterior journey from the shed to the dam and then towards the path. I will address next the Director's challenge to the discretionary aspect of the ruling. However it is clear that his Honour's analysis of the factors relevant to the weighing up process, such as his finding that Officer Hembrow acted recklessly, was directed towards that part of Officer Hembrow's movements after he noticed the exposed pipe. If that analysis is upheld then in light of the finding in [42] any error in relation to whether the scope of the implied licence ceased at the shed is immaterial. Similarly, if that analysis is flawed then his Honour's ruling must be set aside irrespective of whether his Honour was correct in finding that the implied licence to enter the premises ceased at the shed.

The desirability and undesirability of admitting the evidence

As noted the Director challenged the primary judge's determination that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence. The submissions of the parties in this Court proceeded on an assumption that this involved the exercise of a discretion and was reviewable on the principles stated in House v R [1936] HCA 40; 55 CLR 499 at 504 to 505 ("House"). This accords with the previous decision of this Court in Fleming v The Queen [2009] NSWCCA 233; 197 A Crim R 282 at [22]. Failed to take into account relevant considerations
In his written submissions the Director contended that the primary judge failed to take into account the factors identified in s 138(3)(g) and (h) of the Evidence Act with the consequence that the discretion miscarried. In relation to s 138(3)(g) the Crown's submissions contended that there "was no evidence and no suggestion that [Officer Hembrow] would face disciplinary action let alone Court proceedings as a result of the alleged contravention of the law". Far from being a submission this amounts to a concession. The absence of any disciplinary action against Officer Hembrow is a factor in favour of the rejection of the evidence because it leaves exclusion of the evidence as the only means of vindicating the law that was contravened (Parker v Comptroller General of Customs [2007] NSWCA 348 ("Parker") at [64] per Basten JA; Australian Securities & Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327 at [127] per White J).
This Court was not provided with any written submissions provided by the parties to the primary judge. There was no reference made to this factor in the parties' oral submissions before his Honour, and there was no questioning of Officer Hembrow on the topic of potential disciplinary action or other Court proceedings. In those circumstances I would not infer from the absence of any reference to s 138(3)(g) in the primary judgment that his Honour was not cognisant of that factor. Instead I would conclude that his Honour considered that, if the parties did not address it, s 138(3)(g) was not a factor that warranted the attachment of any weight to it in the circumstances of this case. The Director has not demonstrated the contrary.
In relation to s 138(3)(h), the same position applies. The Director contended that, had the officer not inspected the cages, then the cannabis plants would not have been discovered. The implication is that a trespass was the only means of discovering their existence. So much can be accepted, but it does not advance the Director's case. The circumstance that evidence was not obtained by an officer "deliberately cutting corners" to avoid some legal constraint on obtaining it is a matter that tends against its rejection (Bunning v Cross [1978] HCA 22; 141 CLR 54 at 79; Parker at [61]). Thus, for example, if Officer Hembrow had not trespassed but instead had only unlawfully seized the cannabis plants in circumstances where he believed on reasonable grounds that no warrant was necessary then the fact that he could and would have obtained a warrant to take the same step would tend in favour of the admission of the evidence. Conversely, if Officer Hembrow knew that he needed a warrant to seize the cannabis plants but proceeded without a warrant then a combination of s 138(3)(h) and s 138(3)(d) and (e) would justify the rejection of the evidence.
However in circumstances where the discovery of the evidence was accidental such that, but for the contravention, the evidence would never have been discovered then this factor is neutral. The end result is that the Crown would never have obtained the benefit of the evidence without the relevant contravention, but equally the accused would not be burdened with it. Presumably for this reason no mention was made of this factor in the oral submissions before the primary judge. Given that and the neutrality of this factor then no error has been demonstrated by the primary judge's failure to expressly refer to it. Substantial gravity, recklessness and unreasonableness
The balance of the Director's submissions had three components, namely a challenge to the characterisation of the trespass by Officer Hembrow as involving "substantial gravity", a challenge to the finding that his contravention was "reckless" and a submission that his Honour's overall assessment was "unreasonable or plainly unjust" (House at 505).
It is appropriate to address the attack on the finding that Officer Hembrow was "reckless" first. Subsection 138(3)(e) directs attention to whether the relevant contravention was deliberate or reckless. In that respect it echoes the importance attached to the deliberateness of the contravention discussed in Bunning v Cross at 78 - 79 (per Stephen and Aickin JJ). The meaning of "reckless" in this context was authoritatively stated by Bathurst CJ in the following passage in Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 at [210] (with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed): "Nor do I believe that her Honour was in error in finding that Mr Bradley and Mr Standen were not reckless. In R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257 at [33], Hulme J stated the concept 'must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some Australian law or obligation and a conscious decision to proceed regardless or alternatively a 'don't care' attitude generally'. I agree with this formulation subject to the qualification [stated in Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355 at [86]; Marijancevic] … that the reference to 'don't care' must be understood as meaning that the person in question recognised that the conduct might be improper but determined to engage in it not caring whether it was or was not."
It is difficult to accept that the primary judge was referring to recklessness of this kind in making the finding extracted above at [29]. His Honour expressly referred to the "amount of care that in my view is necessary" which suggests that his Honour's concept of "reckless" was actually a form of carelessness or negligence and not a recognition that the conduct might be improper accompanied by a determination to engage in it not caring whether it was or not. Further to make a finding of the latter kind his Honour must have rejected Officer Hembrow as a witness of truth. Officer Hembrow repeatedly stated that he believed he was entitled to inspect the pipe and its destination because he was lawfully present on the premises pursuing a legitimate purpose, and he was entitled to follow up something suspicious that he discovered. He was wrong in the latter respect but such a state of mind is inconsistent with the concept of recklessness used in s 138(3)(e). While some latitude should be afforded to his Honour in providing reasons given that they were delivered ex tempore, a finding rejecting Officer Hembrow as a witness of truth, if that is what his Honour did, required some explanation. In any event it was never put to Officer Hembrow that he was not telling the truth much less than he either deliberately trespassed or that he inspected the pipe recognising that his conduct might have involved a trespass but that he decided to proceed "not caring whether it was or not" (Gedeon at [210]). Otherwise I have already noted that his Honour misstated the significance attached by Officer Hembrow to LEPRA and the Firearms Act (see [26]).
The end result is that the Crown's challenge to the finding that Officer Hembrow's conduct was reckless has been established. In my view the better construction of the primary judgment is that his Honour equated the concept of "reckless" in s 138(3)(e) of the Evidence Act with careless or negligent and in so doing erred in law. However, if his Honour proceeded on the correct understanding of "reckless" then the finding should not have been made given the absence of any challenge to Officer Hembrow's honesty and the absence of any reasons for rejecting him as a witness of truth. At its highest and irrespective of where the trespass commenced, Officer Hembrow's conduct could not be characterised as anything worse than careless conduct undertaken in the honest belief that he was entitled to act as he did.
The related contention of the Crown is that his Honour erred in characterising Officer Hembrow's contravention as involving "substantial gravity". One difficulty with his Honour's reasoning is that it excluded any consideration of Officer Hembrow's state of mind in making that assessment. In Gedeon at [222] Bathurst CJ stated: "Although it is undoubtedly true that the end does not necessarily justify the means, the bona fides of the law enforcement officers and the motivation for their actions are relevant in assessing the gravity of these contraventions or improprieties."
Otherwise an assessment of the gravity of the contravention can involve a consideration of the extent of the departure from the relevant standard, the frequency that public officials engage in the departure to the extent that it is known, the rights and interests that are infringed by the departure and the consequences for the individual concerned (see Evidence (ALRC Report 26, 1985) at [964]; Evidence Act s 3(3); Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 219 A Crim R 344; R v Helmout [2001] NSWCCA 372; 125 A Crim R 257 at [12] per Ipp JA and at [40] per Hulme J). In this respect and leaving aside any issue as to Officer Hembrow's state of mind, I do not consider that it was open to his Honour to characterise the contravention as one involving "significant gravity". The law respects the rights of property owners and occupiers. As Counsel for Ms Burridge contended, Officer Hembrow's conduct amounted to an unlawful search in circumstances where the legislature has enacted a considered and detailed legislative scheme in the form of LEPRA to regulate searches of private property as part of the investigation of crime. However, just prior to commencing his unlawful search, Officer Hembrow was lawfully on the premises. Irrespective of what point the trespass commenced, the extent of his unlawful search was relatively small and concerned an area that was likely to be uninhabited such that the impact from the search on a person's privacy and personal living space was likely to be negligible. When these matters are considered with what the evidence permitted to be found as to Officer Hembrow's state of mind, then the only proper characterisation of the gravity of his conduct that was open was that it represented a relatively minor contravention of the law.
The conclusion that the primary judge proceeded either on the basis of an erroneous understanding of the meaning of "reckless" in s 138(3)(e) or made an error of fact in finding that his conduct was reckless is a sufficient basis to find that the exercise of his Honour's discretion miscarried and that the rejection of the excluded evidence should be set aside (House at 505). It is not therefore necessary to address whether his Honour's decision was otherwise "unreasonable or plainly unjust" (House at 505). Instead the matter can be reconsidered based on the characterisation of the gravity of the contravention and Officer Hembrow's conduct set out above. In my view it follows from that discussion that, given the probative value of the evidence, the seriousness of the charges, the fact that, irrespective of when it commenced, the contravention was a relatively minor trespass and that at its highest the trespass by Officer Hembrow could only be characterised as careless, then subject to one matter, the excluded evidence must be admitted. Overall, the desirability of admitting the evidence outweighs the undesirability of admitting it in light of the way in which it was obtained. The one matter of exception concerns the admissions that are alleged to have been made by the Respondents. Nothing in this judgment is meant to preclude the Respondents from objecting to the evidence of the admissions on a basis unrelated to the subject matter of this appeal.

Conclusion

Accordingly I would propose the following orders: 1. The appeal be allowed; 2. The ruling of Jeffreys DCJ made on 17 December 2014 be set aside; and 3. Subject to considering any further objection to the admissibility of any admissions made by either of the Respondents, the evidence obtained during and as a result of the execution of the search warrants on 185 and 187 Stuart Road, Lawrence on 6 March 2012 be admitted at the trial of the Respondents.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2015

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