R v Hill [2012] ACTSC 17

Drugs of Dependence Act 1989 (ACT), ss 182, 187, 188, 198

Evidence Act 1995 (Cth), s 138

Crimes Act 1900 (ACT), s 209

Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 8

Road Transport (General) Act 1999 (ACT), s 58

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 17

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Momcilovic v The Queen [2011] HCA 34; (2011) 85 ALJR 957

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318

Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177

R v Romeo (1982) 30 SASR 243

Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2001) 124 FCR 384

Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651

Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523

Coward v Allen [1984] FCA 53; (1984) 52 ALR 320

Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20

Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562

R v Petroulios (No 8) [2007] NSWSC 82; (2007) 175 A Crim R 417

Re Lee [2009] ACTSC 98

Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494

R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312

R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169

R v Haughbro (1997) 135 ACR 15

Tasmania v Crane [2004] TASSC 80; (2004) 148 A Crim R 346

Dowe v The Queen [2009] NSWCCA 23; (2009) 193 A Crim R 220

R v Camilleri [2003] NSWCA 319; (2007) 58 NSWLR 720

1. The Application in Proceedings dated 15 November 2010 is dismissed.

1. An important protection for our community, that its members enjoy, is the prohibition of arrest, search and seizure otherwise than in accordance with the law. This prohibition has, as the High Court noted in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110, a long history of protection: "[t]he common law has long been jealous of the prima facie immunity from seizure of papers and possessions".

2. The law, both at common law and by statute, does, however, balance this immunity against the need for an effective criminal justice system by permitting exceptions. Thus, in specified circumstances searches may be made, if necessary using force, and items seized as a consequence. When considering these circumstances, however, the courts are enjoined to apply the principle of legality (see Momcilovic v The Queen [2011] HCA 34; (2011) 85 ALJR 957 at 985; [43]), so that any statutory incursion into the immunity or right is construed to avoid or minimise the encroachment.

3. It is not surprising, then, that persons whose liberty may be compromised by the admission into evidence during a trial of material obtained from such searches should seek the court's assistance by trying to have the results of searches made by police officers excluded as improperly obtained.

4. Thus, Gregory Dean Hill, the accused, applies for an order that evidence of a firearm, found during a search of a car he was driving, be ruled to be inadmissible in his trial for its possession.

5. His trial is for the possession on 26 October 2009 of a prohibited firearm, namely, a silver and black metallic .32 automatic calibre double barrel key ring pistol which he was not authorised by a licence, permit or otherwise under the Firearms Act 1996 (ACT) to possess. This offence, contrary to s 42(a)(iii) of that Act, carries a maximum penalty of imprisonment of ten years.

6. Police had Mr Hill under surveillance for some time, suspecting him of involvement in the trafficking of illegal drugs.

7. The following account of the circumstances is taken from the evidence tendered and given orally at the pre-trial hearing of Mr Hill's application. Not all has been tested and most was admitted only for the purposes of the application. Accordingly, unless I specify otherwise, I do not make any ultimate findings about any matters of fact.

8. It is alleged that, for some months, Mr Hill had been under surveillance. That surveillance, it was suggested, had linked him with a number of cars. One was a silver coloured Holden Statesman; another was a gold coloured Holden Commodore.

9. It was stated in evidence that Mr Hill had been associated with the silver Statesman months before the alleged possession of the firearm. In evidence before me, the informant, Detective Senior Constable David Fleming, also said that earlier surveillance had connected Mr Hill with the gold Commodore.

10. Ongoing surveillance was apparently being conducted, whether intermittently or not I cannot say, and on 22 September 2009 and 13 and 14 October 2009, the silver Statesman was seen at an address in Chisholm at which Mr Hill was then living and on two of those days, he was seen to be driving it.

11. On 15 October 2009, Detective Senior Constable Fleming applied for three search warrants under s 187 of the Drugs of Dependence Act 1989 (ACT). Those three warrants were for a search of Mr Hill (s 187(2)), a search of the Chisholm address (s 187(3)) and a search of the gold Commodore (s 187(3)). Detective Senior Constable Fleming said that, before applying for the warrants, he was not aware of the results of the surveillance of 13 and 14 October 2009.

12. On 26 October 2009, a number of police attended a briefing at the Winchester Centre. By reference to her notes, one of the officers there present said in evidence to me that a list of vehicles was advised to the officers at the briefing, namely the gold Commodore, the silver Statesman and a second, blue, Holden Statesman.

13. I was told that, after the briefing, various police officers left the Winchester Centre and travelled to Chisholm. At about 1.35 pm, Mr Hill was seen by Detective Senior Constable Fleming, who had the warrants, driving the silver Statesman. Mr Hill was alone in the car. Detective Sergeant Pearce was in the car with Detective Senior Constable Fleming and gave evidence of the following conversation:

On realising ... the accused was driving a silver Statesman coming out of Deamer Crescent into Clift Crescent in Chisholm I indicated to Senior Constable Fleming that that was the accused driving the vehicle and I recognised that vehicle. Senior Constable Fleming said 'I don't have a warrant, sergeant, for that vehicle'. And I said 'You should have a warrant for that vehicle. That's his vehicle'. I said 'We'll pull him in anyway' and I then made radio communications in relation to pulling that - stopping that vehicle. I informed Senior Constable Fleming we didn't need a warrant for the vehicle, given the circumstances.

14. Mr Hill was followed by a number of police officers in at least two cars for some distance and the emergency beacons and sirens were activated. Eventually, Mr Hill stopped his car.

15. Detective Senior Constable Fleming stated that he approached the door of the car and said words to the following effect, "I am Senior Constable Fleming from the Police, I have search warrants for you, 53 Barangaroo Street Chisholm ACT and a gold coloured Holden Commodore ACT registration YWC010." Mr Hill said words to the effect of, "I don't live there anymore, I've just moved to 18 Mimosa Street Isabella Plains" and Detective Senior Constable Fleming asked him to produce his driver's licence. Mr Hill climbed out of the car and produced a licence in his name.

16. Mr Hill was shown the warrants relating to the search of his person and the search of the Chisholm premises. He was recorded as saying that, having read them, he did "not really" understand them but did not know what he did not understand and declined an offer to read them again. He had no questions that he wanted police to answer about the warrants.

17. He was told that police were searching his car. Detective Senior Constable Fleming is recorded as saying to Mr Hill:

I just want you to understand, mate, I am invoking emergency search powers, available to me under Section One Eighty eight of the Drugs of Dependence Act, Nineteen Eighty Nine, as I have grounds to believe it is necessary to do so, to prevent the concealment, loss, destructions of evidence, and the circumstances of such serious, and urgency, as to require the immediate exercise of power, without the authority of a warrant. Do you understand that?

19. He was then searched. Nothing was found on his person that was of interest to the police.

20. While Mr Hill was being interviewed and searched, other police were searching the silver Statesman. During the course of the search they found the firearm and two bullets as well as two Clipsal bags, one containing a white rock substance and the other a residue. Mr Hill declined to comment on any of these items.

21. He was then taken to the Chisholm address where a further search was conducted. I do not need to set out the details of that search for the purposes of these reasons.

22. Subsequently Mr Hill was arrested and taken to the ACT Regional Watchhouse. Later that day, a forensic procedure was conducted, consisting of taking a sample from Mr Hill with a buccal swab. An analysis of the material from the swab and material taken from the handle of the firearm was conducted and it was concluded that there was "extremely strong support for the proposition that a major component of [mixed DNA from the firearm handle] ... originated from [Mr Hill]".

23. As is standard practice, a full brief of the prosecution evidence was served on Mr Hill's lawyers. This included a number of statements from police officers who were involved in the investigation, a transcript of the recordings made when Mr Hill was spoken to when he and the silver Statesman were searched and some photographs of the firearm and ammunition.

24. One of the statements was from Detective Sergeant Michael Pearce who told me he was, in October 2009, in charge of the Drug Team of ACT Policing. He described himself in oral evidence as "the supervisor in charge".

25. His statement gave details of the events of 26 October 2009 in which he was involved, including that he recognised the driver of the silver Commodore as being Mr Hill and that he was involved in the search of that car, apparently as supervisor.

26. Just before the hearing of the application made to me to exclude the firearm from being admitted as evidence, Detective Sergeant Pearce completed an affidavit which was filed and read. It attached what Detective Sergeant Pearce described as a "supplementary statement". Although in different terms, it outlined broadly the same facts as in the statement included in the brief served on Mr Hill's lawyer.

27. It had, however, some specific passages which referred to matters that had not been in his original statement and were underlined; it is not clear why that was done. These passages were as follows:

I recognised the defendant and the vehicle he was driving because of information provided to me through AFP indices, briefings and first hand surveillance of the defendant.

...

The search of the vehicle was conducted owing to my belief that the defendant had realised police were following him for some time and the defendant had taken an unrealistic amount of time to stop his motor vehicle after police activated warning lights and sirens giving the defendant the opportunity to secret any illegal drugs he may have been in possession of, within his vehicle.

Police were in possession of a Section 187 Drugs of Dependence Act Search Warrant for the defendant and I was aware that in the event of no illegal drugs being located on the defendant during the search conducted at the roadside vehicle stop, police had no power to further detain the defendant, nor seize his motor vehicle for the purpose of obtaining a search warrant for that vehicle. No illegal drugs were located on the defendant during the initial roadside search of his person.

28. Mr S Gill, counsel for Mr Hill, suggested that these passages were intended to strengthen the justification for the search of the silver Statesman as authorised under what Detective Senior Constable Fleming had described as the "emergency search powers" under s 188 of the Drugs of Dependence Act.

29. In his oral evidence, however, Detective Sergeant Pearce denied that. He asserted that the search of the vehicle was authorised by the search warrant authorising the search of Mr Hill.

30. The Drugs of Dependence Act is one of the statutes that includes provisions that encroach on the immunity from seizure referred to above (at [2]). There are two separate provisions, ss 187 and 188 of the Act. So far as they are relevant, they are in the following terms:

187 Search warrants

...

(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.

...

(7) If, in the course of searching in accordance with a warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds any thing that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.

188 Searches in emergencies

(1) A police officer may only exercise a power under this section if the police officer believes, on reasonable grounds -

(a) that it is necessary to do so to prevent the concealment, loss or destruction of any thing connected with an offence; and

(b) that the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant issued under section 187 or of an order of a court.

(2) A police officer may -

(a) search a person or the clothing that is being worn by, and property in the apparent control of, a person suspected by the police officer to be carrying any thing connected with an offence; or

(b) enter any place at or in which the police officer believes on reasonable grounds that any thing connected with an offence is situated; and

(c) seize any such thing that he or she finds in the course of that search, or at or in the place.

31. Also relevant is that s 182 defines "place" for the purposes of div 11.3 of the Act, which includes ss 187 and 188, to include "vacant land, premises, a vehicle, a vessel or an aircraft".

32. If I find, as Mr Gill submitted I should, that the search was not justified under either ss 187 or 188 of the Act, then he submitted the firearm would be evidence that was obtained illegally and so excluded under s 138 of the Evidence Act 1995 (Cth), which 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.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

• (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
  • (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(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.

33. As noted above (at [11]), three warrants had been issued, one under s 187(2) of the Drugs of Dependence Act and two under s 187(3). The warrant on which Detective Sergeant Pearce said he was relying (see [29] above) was that issued under s 187(2). It is as well to set out here the relevant portions of the warrant. It was, relevantly, in the following terms:

AUSTRALIAN CAPITAL TERRITORY

DRUGS OF DEPENDENCE ACT 1989

Section 187(2)

Warrant to Search a Person

To the following police officers: Michael John PEARCE ... David John Fleming ...

This is a warrant to search the following person:

Gregory Dean Hill born 21 August 1967

Whereas:

• An information on oath has been laid before me alleging that there are reasonable grounds for suspecting that there is, or will within 28 days be, on, or in the clothing that is being worn by, or in any property in the apparent control of, the person described above things of the kind described in this warrant and that those things are connected with the following offences against the Drugs of Dependence Act 1989 or Chapter 6 of the Criminal Code:

Trafficking in a Controlled Drug other than Cannabis, contrary to Section 603 (7) Criminal Code 2002

• And whereas I am satisfied that there are reasonable grounds for issuing this search warrant.

I hereby authorise you to search the person described above for the following things:

Methamphetamine or Methylamphetamine, utensils used in the administration of methamphetamine, syringes, spoons, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies, accounts or documents, alcohol, solvents, acids, acetates, iodine, gases, chemicals, glassware, heating mantles, funnels, filter papers, scales, resealable plastic bags or laboratory equipment or documents.

This warrant authorises each police officer named in the warrant, with the assistance and by the force that is necessary and reasonable, to:

(a) enter any place in the Australian Capital Territory which the police officer believes on reasonable grounds to be occupied by the person described in this warrant;

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

(c) to seize any such clothing or property that the police officer believes on reasonable grounds to be connected with the offence or offences described in this warrant whether that thing is of a kind described in this warrant or not.

And by operation of section 187(7) of the Drugs of Dependence Act 1989, if, in the course of searching in accordance with this warrant for things of a kind specified in this warrant, a police officer finds any other thing that he or she believes on reasonable grounds is a thing connected with an offence described in this warrant or connected with another offence against the Drugs of Dependence Act 1989 or Chapter 6 of the Criminal Code, this warrant authorises the police officer to seize that thing if the police officer believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating the offence to which it is connected.

This warrant may be executed at any time of the day or night.

34. Mr M Thomas, who appeared for the prosecution, sought to justify the search of the silver Statesman, in which the firearm was found, on the basis of both ss 187 and 188 of the Drugs of Dependence Act. In his submission, the warrant permitted the search of the car as it was "property in the apparent control of" Mr Hill. Additionally, he submitted that the circumstances of the situation that confronted police were such that the powers they had under s 188 were enlivened.

35. Mr Gill challenged both suggested powers authorising the search.

36. Mr Gill noted that the expressed views of the police officers were that they were acting under the emergency powers under s 188 and not under the warrant and that they had told Mr Hill that they were doing it under that power.

37. He appeared to acknowledge that "property" referred to in the warrant was a term wide enough to include a car, but submitted that a proper reading of s 187 showed a contrary indication. He submitted that s 187(2) and (3) distributed the powers of search in an exclusive way. Searches of the person were regulated by s 187(2) and searches of places were regulated by s 187(3). As a vehicle was defined by s 182 to include a vehicle, searches of vehicles was regulated by s 187(3) and not encompassed within s 187(2).

38. He relied on the differences in the expressions of the two provisions. He said:

So 187(2) enables the search of a person and property, being all clothing being worn by or property in the apparent control of the person. And what it empowers is the entry of a place in order to do that.

...

Then when you look at the place warrant, or the place powers, the powers are expressed differently. And so there's a corollary power, that there's a power to enter a place and then power to search persons and property in their control, or in their apparent control within the place. So there's a generalised ability to search the place and then a specific power to search the person and the property in their control, as distinct from the search of the place.

The property in the apparent control is within a provision that deals with the searching of the clothing that the person is wearing or that's connected to it. And we say that it's a search of a like manner to the search of the clothing of the person. So that what we have there is a grouping of like items, as distinct from a more generalised search power which can be granted to the search of the place.

...

So the distinction there is when there's a power to search a person that includes a power to enter a place to search the person but not a power to search the place. Where there's a power to search a place there's a power to search the place generally, and to search a person located within the place and the clothing and property within the apparent control of that person.

So we say they're distinctive regimes and the phrasing of clothing and property within the apparent control of the person is distinct from the power to search a place. And we say a vehicle is a place and requires a different search regime under the warrant power for the search of a place, and cannot be dealt with on the basis that it's a search of property within the apparent control of the person because it's a different thing.

39. Mr Gill submitted that the occasion for the exercise of the power under s 188 had not arisen. He pointed to the pre-conditions for the exercise of the power, namely that the police officer undertaking the search must believe certain things (set out in s 188(1)) on reasonable grounds.

40. He submitted that the powers were based on the non-availability of a warrant which, he submitted, could not be satisfied in this case. While no warrant was then in existence, the police officers:

(i) had known about the silver Statesman (see [10] above);

(ii) had sought and obtained a warrant to search a motor vehicle, albeit another motor vehicle (see [11] above);

(iii) had apparently decided not to get warrants for the other two motor vehicles of which they were aware.

41. This, he submitted, suggested that the police did not consider that the circumstances were sufficiently serious to obtain a warrant for the silver Statesman. He submitted that the circumstances that the police now faced were not, in any relevant sense, unexpected since they already knew that Mr Hill was connected with the silver Statesman. He submitted that the evidence of Detective Senior Constable Fleming, that he did not know of the results of the more recent surveillance, was irrelevant both because it was nevertheless knowledge that the police had but also because he clearly knew at the briefing of the existence of the silver Statesman and connection with Mr Hill.

42. Mr Gill further submitted that the police should not be entitled to rely on the urgency of the need to search because they had created it by failing to obtain a warrant for the silver Statesman. Indeed, as he pointed out, the police had, on that occasion, specifically gone out to search for and find Mr Hill.

43. Mr Gill also challenged the reasonableness of the grounds for any belief that it was necessary to search the vehicle to prevent concealment, loss or destruction of things the police might be entitled to seize. He submitted that there was no evidence before me of the connection, and the strength of it, between Mr Hill and drugs. He noted that the police were interested in some kind of operation but the basis of or information that "undergirded" the operation was not made explicit in evidence before me so that I could not assess the reasonableness of the grounds for any relevant belief. Insofar as that may help, he accepted that the issuing of the warrants had been achieved by satisfying a magistrate of the statutory preconditions to the issuing of a warrant.

44. He submitted that the driving of Mr Hill did not really assist to provide any reasonable grounds.

45. The evidence of Detective Senior Constable Fleming was as follows:

As we turned into Deamer Crescent we drove around - we turned left from Clift onto Deamer and Mr Hill was in the other - in the vehicle just a[t] the intersection waiting to turn right onto Clift from Deamer, and I believe he got a good view of us and aroused his suspicion about - because we were looking straight at him. And then he's turned right and driven off along Clift Crescent. We've done a U-turn and commenced to follow him and he's been going a bit quicker than the speed limit. Nothing excessive but it was above the speed limit. The exact speed I couldn't state. And then we've had Detective Senior Constable Arley pull in another unmarked vehicle - vehicle ahead of us. That made me believe that if there was anything in the vehicle he would have had time to - if he had anything on him he would have had time to secrete it in the vehicle somewhere. And then when Detective Senior constable Arley's activated the lights and sirens it's taken Mr Hill a period of time before he's actually pulled over. So that just led me to believe that, as I said before, if he was - if he's had anything on him he would have had an opportunity to secrete it in the vehicle and I didn't have a warrant for that vehicle. And once we'd done the - you now, basically executed the warrant on the person if he wished to get in the vehicle and drive off we didn't have any power to stop him from doing so. So that's why I believed that we needed to execute the warrant for the search of the vehicle under section 188.

46. Mr Gill submitted that, at best, this amounted to a suspicion rather than belief that s 188 required, even though so described by the police officer.

47. Ultimately, Mr Gill submitted that where the police could have obtained a warrant, as here, he submitted, they plainly could have, then the need to search because of the lack of the warrant could not be justified, when not only did they know of the car and its connection to Mr Hill but they chose the time of execution of the warrants that they did have.

48. There are, it seems to me, four matters here with which I should deal: whether the ignorance of the police about the source of the power to search undermines their exercise of the power; whether the search was properly authorised by the warrant issued under s 187(1) of the Drugs of Dependence Act; whether the search was authorised under s 188 of that Act; and whether, in the event that the warrant authorised the search, Detective Senior Constable Fleming's advice to Mr Hill that the search was an emergency search was an impropriety for the purposes of s 138 of the Evidence Act.

49. The resolution of these issues will determine whether the evidence of the finding of the firearm in the silver Statesman is admissible at trial. Accordingly, I will deal with each of these matters in turn.

50. The evidence of Detective Sergeant Pearce was quite unsatisfactory in many ways. Nothing in his first statement gave any hint that he had turned his mind to the source of authority for the search he was conducting. That is, of course, not to say that he had not actually done so, but that he should have included in his statement the relevant material about the search and arrest and this would include, for example, any belief he had in respect of the matters in s 188 of the Drugs of Dependence Act and the matters on which he relied to show that the belief was held on reasonable grounds.

51. The supplementary statement clearly identifies that omission. It includes the basis for him recognising Mr Hill, the subject of the operation, and facts that might well form the basis for considering that Mr Hill might be using the time between knowing the police were in the vicinity and then following him and then trying to stop him and when he actually stopped to conceal in the vehicle items that may prove or be connected with an offence.

52. I also accept that this material provided reasonable grounds for believing that an immediate search was necessary to prevent the concealment, loss or destruction of things that may have been in the silver Statesman connected with an offence.

53. This is also consistent with the conversation Detective Sergeant Pearce had with Detective Senior Constable Fleming that he recounted in his oral evidence (above at [13]).

54. The supplementary statement, containing this evidence, was prepared on 22 November 2010, just six days after the filing of the Application in Proceedings seeking to have the evidence of the search and the firearm excluded (on 16 November 2010). Though I do not so find, these circumstances would clearly run the high risk of an allegation of recent invention, though Mr Gill only indirectly suggested that.

55. What was curious then was that, in his oral evidence before me, Detective Sergeant Pearce robustly asserted that the s 187(2) warrant was the source of the authority for the search he conducted. When asked, "What power did you believe you were exercising?" he replied, "Under the power of the person warrant under the DODA Act, your Honour. 187." In particular, he referred to the provision authorising him "to search the person and any property in the apparent control of that person."

56. He acknowledged that he later, on 26 October 2009, came to know that Detective Senior Constable Fleming had a different view of the source of authority for the search and said in his evidence to me, "becoming aware of that I spoke to Senior Constable Fleming and informed him that he was incorrect in that view, and the vehicle had been searched under the power of the warrant." This, he said, resulted in the police Statement of Facts, prepared by Detective Senior Constable Fleming, as the informant, including the following paragraph, particularly the last seven words:

Police then suspended the taped record of interview and commenced to conduct a search of the silver coloured Holden Statesman, bearing ACT registration plates YFE99X which was driven by and in the control of the defendant.

57. That does support the version of events given by Detective Sergeant Pearce. Detective Senior Constable Fleming confirmed the conversation outlined above (at [56]).

58. It seems to me that there was confusion about the source of the authority for the search and that Detective Sergeant Pearce, in his supplementary statement, was, in fact, having it both ways. There is nothing wrong with that, so far as I can see. If I am correct, it would have been better and more creditworthy for Detective Sergeant Pearce to have admitted that and frankly stated that, while he believed at the time he was acting under the warrant under s 187(2) of the Drugs of Dependence Act, the circumstances justifying emergency action under s 188 were also present.

59. I do not need to address this evidentiary issue further here, though I do take some of it up below (at [81]-[86]).

60. The question arises, then, as to whether a mistake as to the source of the authority for the search affects its validity. The answer to this is easily given. As Heydon J, with whom Gleeson CJ and Gummow, Kirby, Hayne and Callinan JJ agreed, said in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at 362; [124]:

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power (footnote omitted).

61. This principle was described by Fullagar J as "settled principle" in Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177 at 184. It has been applied in a number of decisions since then.

62. In R v Romeo (1982) 30 SASR 243, Cox J, with whom King CJ and White J agreed, applied the principle (at 277) to search warrants, though not as a final opinion. More recently, the Full Court of the Federal Court of Australia also considered that it applied to search warrants in Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart) at 410; [104], though it did not save the actions in that case from invalidity for other reasons.

63. In Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651, Kiefel J applied the principle despite the Minister actually referring to the wrong statutory provision.

64. Thus, so long as there is compliance with the relevant statutory provisions and any preconditions to the exercise of a power are met, the mistaken identification of or erroneous belief in the head of power authorising an administrative procedure, such as the execution of a search, will not necessarily invalidate the search. In this case, there is, in my view, nothing to require that the principle not apply.

The warrant under s 187(2) of the Drugs of Dependence Act

65. As noted earlier, Mr Gill submits that s 187 must be construed so that:

(a) "property" referred to in s 187(2) does not include a motor vehicle; and

(b) the provisions in s 187(2) and (3) are mutually exclusive.

66. As noted above (at [2]), the principle of legality requires that statutory encroachments on liberties and rights recognised and protected by the common law, as is the immunity from search and seizure, should be construed so as to limit the interference with those liberties and rights to the least extent necessary to achieve the legislative purpose.

67. That is not to say that courts should strain to limit such provisions by being overly technical or unrealistic. It seems to me that guidance can be drawn from what Burchett J said in Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523. Though referring to the warrant itself rather than the authorising legislation, his Honour (at 546) said that "although a warrant must comply strictly with the statutory conditions of its issue (George v Rockett [(1990) [1990] HCA 26; 170 CLR 104] (at 111)), it should, like other documents, be read fairly, and not perversely."

68. In Hart, the Court said (at 401; [68]), of the legislation relevant in that case and its application:

[E]ffect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred. The need to recognise the operational realities in which warrants are executed was acknowledged by the learned primary Judge, who referred in that connection to Dunesky v Commonwealth (1996) 89 A Crim R 372 at 382-383 per Lockhart J. See also Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 83 per Mason J. The tension between the public and private interests involved in the issue and execution of search warrants was referred to by Lockhart J in Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123 at 141-142 (Northrop J agreeing at 132). His Honour cited the observation of Lord Cooper in Lawrie v Muir [1950] SLT 37 at 39-40:

From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.

See also Trimboli v Onley (No 3) (1981) 56 FLR 321 at 332-333, per Holland J. These remarks relate more to attacks upon the scope of warrants and action under them than to the construction of the statutes authorising the issue of such warrants. They nevertheless expose adequately the policy issues and legislative purposes which should inform construction. In particular, there is no requirement that the court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power.

69. It is clear to me that the definition in s 182 was intended to meet the restrictions on the meaning of "place" identified and determined in Coward v Allen [1984] FCA 53; (1984) 52 ALR 320 at 333-4. It seems, therefore, to be designed to remove a lacuna in the investigative options available to police rather than necessarily to create two distinct regimes.

70. After all, a warrant under s 187(3) will permit, in certain circumstances, the search of a person; a warrant under s 187(2) is not required additionally for that purpose.

71. In addition, I note that the definition is an "inclusive definition" and is merely to encompass within the meaning of "place" certain things that would not otherwise be included in the meaning. It does not seem to me necessarily to have a limiting or exclusionary effect on the meaning of the word "property".

72. This is strengthened, in my view, by the reference to property "in the apparent control of" the person the subject of the warrant. This would limit the range of vehicles that could be the subject of a search to those where the person named in the warrant had what might be regarded as a relevant relationship to the vehicle, so that, for example, items over which he or she had control could be relevantly found. It would not allow search of a vehicle merely because the person in whose name the warrant was issued happened to be in it. There is, thereby, a relevant and limiting criterion for the extent of the search, and it is a reasonable criterion with a reasonable limitation.

73. I am fortified in this approach by the fact that the vehicle is a relatively small space, unlike, say, residential premises which will often have as residents persons who may be entirely unconnected with the object of the police investigation and whose privacy and immunity from search and seizure are beyond the reasonable encroachment contemplated by s 187(2).

74. The extent of this limitation is not crystal clear. Whether it would apply were there to be a passenger or passengers in the vehicle as well as the driver who was subject to the warrant is not something that I have to decide. Here, clearly, the Statesman was under the control of Mr Hill.

75. I note, too, that s 187(2) permits the police executing the warrant "to seize any such clothing or property ... connected with the offence". It would certainly be a surprising result if police officers executing a warrant under s 187(2) who located the named person in a car, found items, such as drugs, connected with an offence and could seize, say, a suitcase in the motor vehicle but could not, under this provision, seize the motor vehicle itself.

76. That this interpretation means that in certain circumstances there may be two heads of power for the search does not, in my view, require the legislation to be construed in a way that separates them into two mutually exclusive categories. No authority or principle was cited that required such a construction.

77. Placing such a restricted application on the definition could also cause problems with its application to s 187(3). For example, if the place described was a residential block of land, that is real property, then to say that the other items in the definition are separate places would mean that the search could not include any vehicles or vessels on that property at the time the police were searching without further warrants. That is not a construction that attracts itself to me in any way.

78. Without finally deciding, I consider that "property" in s 187(2) is likely to be limited to chattels (excluding leasehold property) and not to include real estate of which the person named in the warrant might be in apparent control.

79. I find, however, that in this case, the search by police of the Statesman was authorised by the warrant issued under s 187(2) and that, on that account, the evidence should be admitted to trial.

The emergency search under s 188 of the Drugs of Dependence Act

80. Strictly, it is not necessary for me to consider the arguments advanced so far as this power is concerned.

81. In deference to the extensive and careful arguments of counsel, I shall briefly consider the issue. This might, also, be relevant were I found to be wrong in my construction of s 187(2) and the meaning of the word "property" in it.

82. Mr Gill challenged the legality of this search on three principal grounds: that the police did not have the belief required by s 188(1) (partly on the basis of the absence of evidence from which the reasonable grounds for such belief could be assessed); that the circumstances were not urgent; and that the circumstances were not serious.

83. Ultimately, it seemed to me that his arguments as to urgency were really relevant to seriousness and he broadly acknowledged that.

84. As to whether the belief required by s 188(1) (see [3] above), was held, a number of questions arise. The question of who had to hold the belief was not agitated. It does not seem to me that every police officer undertaking the search must do so. It seems to me sufficient if the officer in charge or directing the search holds the relevant belief. In this case, that is not easy to determine.

85. Detective Senior Constable Fleming was the informant. He conducted the briefing at the Winchester Centre before the execution of the search warrants was attempted and effected. It was he who had applied for and was "holding" the warrants. It was he who searched Mr Hill. He also explained to Mr Hill that the search of the silver Statesman was being conducted under the authority of s 188 of the Drugs of Dependence Act.

86. On the other hand, Detective Sergeant Pearce was the senior police officer present; indeed he described himself in his oral evidence before me as "in charge of the Drug Team, ACT Policing". He clearly was exercising that position during the operation; for example, his evidence was that the silver Statesman was stopped at his request and direction so that Mr Hill and the car could be searched. After the vehicle was stopped, he made radio communication with other police officers "to bring other police ... to come and ... assist in the search of the vehicle". He said that, while waiting, he "maintained custody of ... [the] vehicle." It seems more likely than not that Detective Sergeant Pearce was the police officer relevantly in control of the search and, therefore, the person whose belief was relevant.

87. I am satisfied that it is likely that Detective Senior Constable Fleming had the relevant belief, though I am not satisfied beyond reasonable doubt that he actually did so. He did not articulate it in evidence before me. He did give evidence of matters that would provide reasonable grounds for the belief that there may be drugs in the vehicle.

88. The evidence of Detective Sergeant Pearce, both oral and written, was well sufficient for the belief. The difficulty is that he considered that the warrant justified the search. So clear was that opinion that he sought to disabuse Detective Senior Constable Fleming of the view that it was an emergency search.

89. I find it difficult to accept that Detective Sergeant Pearce would, at the time, have been satisfied that the search was being conducted under the authority of the warrant and yet considered and formed the belief that an emergency search was necessary.

90. I have no doubt that the matters he mentioned would justify an emergency search, though some of the evidence could have been clearer. The question, though, is whether the belief was actually held, not whether it could, justifiably, have been held. I am not satisfied that Detective Sergeant Pearce at the time of the search of the vehicle actually held the requisite belief.

91. This may appear a technical approach and be seen restrictive to police operations. I do not consider it to be so. The power to invade a person's privacy and to search their property and to seize items is a significant matter that should not be exercised lightly and without careful attention to the nature and requirements of the exercise of the power.

92. I am, however, satisfied that the circumstances were of such urgency that an emergency search would have been justified. Detective Sergeant Pearce was correct in his assessment of the situation as set out in his supplementary statement (at [27] above).

93. I was initially attracted to Mr Gill's submission that as the police knew about the silver Statesman and yet had not obtained a warrant for it, they could not reasonably believe that the circumstances were sufficiently serious to justify an emergency search. On further reflection, however, I am not satisfied that this is so.

94. Mr Gill did not submit that the offence, the subject of the operation (namely, possibly trafficking in drugs), was not so serious that the emergency search powers, if otherwise appropriate, should not be invoked. He was right not to do so. The nature of the possible offence was serious.

95. Accordingly, on the evidence actually before me, I would not uphold the search as being justified under the emergency search power in s 188 of the Drugs of Dependence Act.

Did the impropriety require the evidence of the search to be excluded or was it

96. I have found the search was authorised by the warrant. Mr Gill says that the statement by Detective Senior Constable Fleming that the search was being conducted under the powers given by s 188 of the Drugs of Dependence Act was an impropriety that enlivened the provisions of s 138 of the Evidence Act.

97. As Branson J said in Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 at

43-4 [78], s 138 imposes on a court a "two staged task": first to determine whether the evidence was obtained in one of the ways identified in s 138(1)(a) or (b) and, if so, then not to admit the evidence unless the desirability of its admission outweighs the undesirability of its admission. However, the task at the second stage is, as her Honour pointed out, not the mere exercise of a discretion. Rather, the evidence is not to be admitted unless the balancing exercise produces the result that the desirability of its admission outweighs the undesirability.

98. Here, there is no contravention of an Australian law; I am only concerned with impropriety. There must, however, be a chain of causation between the impropriety and the evidence: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 at 564 [5]. The impropriety may, it was held in R v Petroulios (No 8) [2007] NSWSC 82; (2007) 175 A Crim R 417 at 425 [25], be direct or indirect.

99. Thus, for example, a misstatement in the affidavit in support of an application for a search warrant may render the evidence obtained from the search to be improperly obtained. The link need not be immediate, but may arise through various steps as noted by Penfold J in Re Lee [2009] ACTSC 98 at [3].

100. The impropriety here is identified as the misstatement. In Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494, French CJ referred (at 501 [29] citing Oxford English Dictionary (Clarendon Press, 2nd ed, 1989)) to the meaning of "improper", as "not in accordance with the truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". By that definition, the misstatement was clearly improper.

101. The difficulty, however, is in this case that there seems no causal connection between the misstatement and the conduct of the search and therefore the finding of the firearm.

102. In R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312, Spigelman CJ opined at 327 [75], that "[i]t is at least arguable that the formulation 'obtained in contravention' should be construed so as to encompass the entirety of an integrated scheme, particularly a scheme designed to protect fundamental freedoms."

103. Thus, his Honour, with whom Newman and Greg James JJ agreed, held that evidence obtained temporally prior to the contravention was still obtained "in consequence of it". This widens considerably the scope of the causal link.

104. It may be, however, that this approach is limited to what his Honour described as "an integrated scheme" for in R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169, Simpson J, with whom Spigelman CJ and Blanch AJ agreed, held (at 186 [86]) that the provisions of s 138 were not attracted to evidence given during an extended investigative failure to comply with a statutory requirement to transmit, to a justice who issues a detention warrant to extend the investigation period, an affidavit setting out the information on which the application for the warrant was based. That is, evidence obtained prior to the impropriety was not infected by it.

105. Consistently with that approach, Howie J held in R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 at 87 [20], that

[n]ot every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect.

[o]n the other hand, the terms of s 138(3)(e), which subsection requires the court to take into account whether the 'impropriety or contravention was deliberate or reckless', make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power.

106. Mr Gill made no submissions about whether the misstatement had any causal link to the evidence sought to be excluded. The onus does appear to be on the party asserting the illegality to prove that and the causal connection: R v Haughbro [1997] ACTSC 343; (1997) 135 ACTR 15 at 23. Even accepting that impropriety in the investigative process can indirectly enliven the provisions of s 138, I am not able to find any relevant link here. The evidence would not, therefore, be inadmissible under s 138.

107. It only remains for me to consider whether, if I am wrong about the source of authority for the search, the evidence of it and what was located in the course of the search, should be admitted notwithstanding the lack of authority for it.

That is to say, if, contrary to my view, the warrant under s 187(2) of the Drugs of Dependence Act did not authorise the search of the vehicle, should the evidence nevertheless be admitted. This search would then amount to a contravention of the law.

108. Admission of the evidence depends on the application of the test in s 138(1) to determine whether the desirability of admitting the evidence outweighs the undesirability of admitting it. That balance has been found to justify admitting evidence obtained from a search notwithstanding that the search was not authorised by search warrant: Tasmania v Crane [2004] TASSC 80; (2004) 148 A Crim R 346.

109. In undertaking the task of determining whether to admit the evidence, the court is obliged to consider the matters in s 138(3), though these are not exhaustive of what may be and, indeed, may need to be considered. As this Court noted in Haughbro, the matters listed there constitute more than a "check list" and need consideration (at 24). I do so as follows:

(i) Probative value of the evidence: The finding of the firearm, especially with the analysis of the DNA material from it, is highly probative of the offence;

(ii) Importance of the evidence: The evidence is central to the prosecution case. Without it, it is likely that the prosecution will not be able to proceed;

(iii) Nature of the offence and the nature of the subject matter of the proceedings: The offence is, considering the maximum penalty, a serious one. I think I can accept that possession of unlicenced firearms, especially if shown to be possessed in connection with drug dealing, is a serious matter which affects the safety in the community. It is an offence that the community would certainly wish to be prosecuted;

(iv) Whether the contravention was deliberate or reckless: Both Detective Sergeant Pearce and Detective Senior Constable Fleming considered that there was authority for the search to be conducted. There was no deliberate contravention. I have found that there could have been made out reasonable grounds for a belief that the search was necessary to prevent concealment, loss or destruction of, for example, drugs that may have been secreted in the Statesman. I have also found that the circumstances were of such seriousness and urgency that an emergency search could properly be conducted. I do not consider the contravention was deliberate or reckless;

(v) Gravity of the contravention: It is important, and recognised by the law, that unauthorised searches should not occur. A breach of the immunity from search other than as authorised by law is a serious matter. It may be more serious to search a residence than a car, for which there are a number of provisions in legislation authorising police to stop vehicles, and, in some cases, search them (see Crimes Act 1900 (ACT) s 209; Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) s 109; Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 8; Road Transport (General) Act 1999 (ACT) s 58), the stopping of the vehicle giving rise to the possibility of a search if a relevant suspicion or belief is held. Nevertheless, an unauthorised search is a serious matter and should not be ignored; it is certainly not irrelevant. On the other hand, I have found that the contravention by the police was neither deliberate nor reckless. That, of course, does not cancel the contravention. The fact, however, that the police at all relevant times held a bona fide belief that they were acting lawfully does render the gravity of the contravention less serious. See Dowe v The Queen [2009] NSWCCA 23; (2009) 193 A Crim R 220 at [97], [99].

(vi) Inconsistency with a right recognised by the International Covenant on Civil and Political Rights: The relevant right is that contained in art 17 of the Covenant and which protects the privacy of the person, prohibiting arbitrary or unlawful interference with it. That it is such a right means at least that its infringement should be taken seriously. Though the interference is recognised as worthy of protection, it was not, in this case, arbitrary.

(vii) Proceedings in relation to the contravention: There was no evidence to suggest that any such proceedings have been taken or were to be taken. As Basten JA, with whom Mason P and Tobias JA agreed, said in Parker at

591 [64], it is incongruous to consider a person being convicted of an offence on the basis of a police officer having been disciplined for obtaining it. It is unclear how this consideration should be taken into account. In this case, I would think it unlikely that the police should be sanctioned, but that does not incline me to more likely exclude the evidence.

(viii) The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: There would be no difficulty in obtaining the evidence without impropriety or contravention. Had Detective Sergeant Pearce turned his mind to the need for an emergency search, it would seem he could have proceeded as it is likely he would have formed the relevant belief on what I consider are likely to be reasonable grounds. Of course, Mr Gill would say, and it is not to be dismissed, the police should have, and presumably could have without difficulty, had a search warrant under

s 187(3) of the Drugs of Dependence Act issued in respect of the silver Statesman.

110. There is no evidence to suggest that the contravention was a systemic problem or that Mr Hill was dealt with unfairly in some way.

111. In R v Camilleri [2007] NSWCCA 36; (2007) 68 NSWLR 720, McClellan CJ at CL, with whom Bell and Howie JJ agreed, said (at 727; [35]):

Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission.

112. In my view that accurately describes the position here. Accordingly, if I am wrong about the search being authorised by the warrant issued under s 187(2) of the Drugs of Dependence Act, but right about it not being authorised under s 188 of that Act, then I would find that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

113. As a result, the application to have the evidence obtained in consequence of the search of a silver coloured Holden Statesman motor vehicle bearing ACT registration YFE 99X on 26 October 2010 rejected as inadmissible must be refused.

114. I will make an appropriate order to that effect. I will also hear the parties as to consequential orders and give appropriate directions for the further conduct of the prosecution.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions