R v Ljubic; R v Nachouki [2013] ACTSC 125

Supreme Court of the ACT|2013-06-19|Before: Higgins CJ, Honour Spender J, Crispin J, Nield AJ

1. The evidence obtained in reliance upon the invalid warrant be inadmissible.

1. In this case, as has been conceded at the outset, the warrant purporting to have been issued on 7 November 2011 and to have been executed at 10.10 pm on 7 April 2011 is, on the face of it, an impossibility, and on the face of it, the warrant is invalid. It is invalid in the respect that the date November is plainly incorrect. I am satisfied on the evidence before me, that the date should have been April 2011, had it been written properly.

2. There have been a number of cases in this Territory where magistrates have issued warrants which have been invalid on their face. The case of R v Stankovich ; is a case in point and also the case of R v Caruso In Stankovich ; , a similar case to the present, his Honour Spender J decided in the exercise of his discretion, notwithstanding the fact that the admission of the evidence was central to the prosecution case, that the evidence should not be admitted. Indeed, as has rightly been pointed out, the onus is on the prosecution to satisfy the court the evidence should be admitted, not on an accused person to show that the evidence should be excluded. That is an important change from the position as it was in Bunning v Cross ;

3. I note too that in Caruso [2006] ACTSC 45, Crispin J, although admitting the evidence, in the course of doing so, noted in that case also that the evidence obtained by the search of the houses was highly probative and important to the Crown case against the accused. That was a case of methamphetamine being found, a gross weight of 26.947 grams, 18.1% pure as well as some other drugs, cannabis, cannabis seeds and a machine that would vacuum seal items in plastic bags, obviously one would think, for the purpose of dealing in drugs. His Honour noted that the effectiveness of the prosecution was clearly in the public interest, and of course that is so.

4. In that case, the police officers did act in the conscientious belief, his Honour accepted, that the warrants were valid. But his Honour also went on to say at [35]:

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

5. His Honour was satisfied in that case that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in reliance upon an invalid warrant. That was a case where the warrant was, as this one is, invalid on its face. There were irregularities on the face of the document.

6. In R v Manyathala; R v Ojielumhen [2013] ACTSC 115 before Nield AJ, the warrant was not invalid on its face. It was invalid if and only if you looked behind the signature on the warrant and found that the signatory was a federal magistrate, not a territory magistrate. So the defect in that case was latent and not apparent to the officers who were authorised to execute the warrant or to those who did do so. In that case it was Federal Magistrate Brewster (as he then was) who issued a surveillance warrant.

7. Those were the cases to which I was referred. It is a difficult case because it is quite obvious that to anyone reading the warrant, that it is impossible. But that is the point. Anybody who read it, whether the Magistrate or any other persons to whom the warrant was given, would or should immediately see, on reading it that there was an error on the face of the document, which made it impossible to comply with.

8. It is hard to imagine how, not only the Magistrate but also the police officers who obtained the warrant or copies of the warrant, could not have noticed that it was given a date upon which it was made that was some months in the future. It would have been a simple matter, having noted that, to take it back to the Magistrate and either amend the document or reapply for a document and have it signed and dated with the appropriate date.

9. As Crispin J said, it is undesirable that officers, whether magistrates or police, should simply obtain documents that were not apparently well-considered. It is a very serious matter to ask for and then issue a search warrant. That has been attested to in any number of cases. For a warrant to be issued and provided for issue without it having been read, apparently, to ensure that it was correct is, to my mind, inexplicable. No one can go into the mind of the Magistrate in this case, apart from which he is retired, to work out why it was that the wrong date was inserted. But it is not just a slip of the pen. It is in fact a date that is deliberately written.

10. In those circumstances, it seems to me that the contravention is of such a nature, being on the face of the document itself, that the remarks of Crispin J in Caruso [2006] ACTSC 45 are highly apt. These days, at least from 2006 to 2011, one would have thought that the pattern of ill-considered warrants would not have been continued, but they have been. At least in this case they have been. Why no one would have taken the hint, and it was more than a hint that Crispin J offered in Caruso [2006] ACTSC 45, I cannot explain.

11. In any event, the contravention is apparent on the face of the document. The document is invalid; I have acknowledged the importance of the evidence, but that is the only matter which weighs in favour of the admission of the evidence, not that it is unimportant. But the contravention is of such an obvious nature that to admit the evidence would effectively enable, officers, whether those issuing or seeking warrants, simply to ignore the terms of the document or not check it properly. I refer to what Spender J said in Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88 regarding that kind of slovenly and careless issue of warrants. This seems to me to be a case of the same kind.

12. As a matter of discretion, it seems to me that it would be inappropriate to direct the admission of the evidence, which prima facie is illegally obtained and I rule accordingly.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Appellant: ACT Director of Public Prosecutions

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