R v Manyathala; R v Ojielumhen [2013] ACTSC 115

4. On 4 March 2011an emergency controlled operation certificate was issued in relation to the cocaine which was found inside the black plastic wrapping inside the DVD player. This certificate was properly issued.

5. On 6 March 2011 Federal Magistrate Brewster issued a warrant, pursuant to the Surveillance Devices Act 2004 (Cth), authorising police to use surveillance and tracking devices in relation to the package. This warrant was properly issued.

6. On 7 March 2011 police substituted an inert substance for the cocaine and reconstructed the black plastic around the inert substance, the DVD player, the cardboard box and the wrapping around the box.

7. Later on 7 March 2011 Federal Magistrate Brewster issued two search warrants pursuant to section 3E of the Crimes Act 1914 (Cth), one in relation to the address in Ashburner Street, Higgins, and the other in relation to an address in Blackman Crescent, Macquarie, permitting police to enter into and to search the premises. The Crown conceded that Federal Magistrate Brewster did not have authority to issue these warrants.

8. On 8 March 2011 a police officer, purporting to be an Australian Post courier, attended at the address in Ashburner Street, Higgins, to deliver the passage to the consignee. A person at the premises denied that any person named Fred Manyathala lived at the premises. Police left a parcel collection card in the mailbox of the premises informing the consignee that the package could be collected at the Kippax Post Office, Kippax Shopping Centre, Hindmarsh Crescent, Holt, after 4 pm that day.

9. At about 4pm that day two males of African appearance arrived at the Kippax Shopping Centre in a maroon coloured Ford Falcon utility, bearing ACT registration plates Y----R. Shortly afterwards, the men entered into the post office where the accused, Mr Lenin Manyathala, collected the package, after when they left the post office and returned to the vehicle, which was driven away.

10. Police followed the vehicle from the post office to premises in Groom Street, Hughes, at where the two men left the vehicle and entered into the premises. Police heard, via the listening device secreted inside the package, that the men had removed the black plastic wrapped substance from within the DVD player.

11. At 4.52 pm that day police applied to Federal Magistrate Brewster for a telephone approved search warrant permitting police to enter into and to search the premises in Groom Street, Hughes. The warrant was approved. Shortly afterwards police entered into the premises. The Crown conceded that Federal Magistrate Brewster did not have authority to issue this warrant.

12. On entering into the premises police found the two accused, Mr Lenin Manyathala and Mr Osaro Peterson Ojielumhen, the wrapping from the cardboard box, the cardboard box, the DVD player with its base removed, the screws removed from the DVD player, the black plastic wrapping and the inert substance. In addition, police found a screwdriver, a knife and two mobile telephones. During the search, police recorded the conversations that they had with the men. After the search, police arrested the men and took them to a police station, where they were charged with the offence of attempting to possess a marketable quantity of an illegally imported border controlled drug, namely cocaine, contrary to section 309(6)(i) of the Criminal Code 1995 (Cth).

13. Later, on 6 April 2011 the accused appeared before a magistrate in the Magistrates Court to answer the charge. On their being arraigned, each pleaded not guilty to the charge. The magistrate stood over the proceedings to a later date for a case management hearing.

14. On 14 July 2011 Mr Manyathala appeared before a magistrate in the Magistrates Court on the case management hearing. He adhered to his not guilty plea entered on 6 April 2011 and he was committed to this court to stand his trial.

15. Then, on 4 August 2011 Mr Ojielumhen appeared before a magistrate in the Magistrates Court on the case management hearing. He, too, adhered to his not guilty plea entered on 6 April 2011 and he was committed to this court to stand his trial.

16. On 26 March 2013 Mr Ojielumhen filed an application seeking, relevantly, the order that "the evidence arising from the search of premises at Groom Street, Hughes, ACT, conducted on 8 March 2011 not be admitted at the trial of the accused." The ground relied upon is that, "The evidence was obtained illegally as the warrant purportedly authorising the search was not validly issued as Magistrate Brewster was not authorised to issue a warrant under section 3E of the Crimes Act 1914 (Cth)".

17. On 28 March 2013 Mr Manyathala filed an application seeking, relevantly, the same order based upon the same ground.

18. On 19 April 2013 the applications of both accused came on for hearing before me. I was told by the Crown prosecutor that the Crown conceded that the search warrant issued by Federal Magistrate Brewster permitting police to enter into and to search the premises in Groom Street, Hughes, was not legally issued as Federal Magistrate Brewster was not authorised to issue a warrant pursuant to section 3E of the Crimes Act 1914 (Cth) and that the Crown relied upon section 138 of the Evidence Act 1995 (ACT) to adduce the evidence obtained in and during and as a consequence of the police search of the premises in Groom Street, Hughes. I was given a folder by the Crown prosecutor which included affidavits and annexed statements of nine police officers and the Crown prosecutor's submissions on the Crown's application to adduce the evidence notwithstanding that the warrant was not legally issued. I then heard evidence from Constable Stephanie Ellen Leonard, who, at the request of Detective Sergeant Paul Gerard Beath, contacted Federal Magistrate Brewster by telephone at 4.52 pm on 8 March 2011 to obtain the issue of a search warrant to enter into and to search the premises in Groom Street, Hughes, and Detective Sergeant Beath, who, in general terms, was the leader of the police team involved in the controlled operation in relation to the finding of the cocaine in the DVD player. After hearing this evidence, I stood over the hearing of the applications to 16 May 2013, on which date the hearing was stood over to 22 May 2013, for counsel's submissions.

19. On 22 May 2013 I heard submissions from Mr Lawton, counsel for Mr Manyathala; Mr Archer, counsel for Mr Ojielumhen, and the Crown prosecutor, after which I stood over the applications to a date to be fixed for my judgment.

20. Mr Lawton submitted that the failure of Constable Leonard to obtain a valid legally issued search warrant from a person authorised to issue such a warrant amounted to such a fundamental and serious breach of the law that everything obtained during the execution of the search, whether done, found or said, was illegally obtained and should be excluded from the evidence to be adduced during the trial of the accused. As I understand the Crown prosecutor, the Crown accepts that everything done, found and said during the execution of the search warrant was illegally obtained, and, but for section 138 of the Evidence Act, would not be admitted into evidence during the trial of the accused.

21. Mr Archer relied upon the submissions of Mr Lawton, as to the illegality of the search warrant, and further submitted, as to section 138 of the Evidence Act, that:

(i) the probative value of the evidence obtained during the search was slight, as there is probative evidence in the Crown's case;

(ii) the importance of the evidence in the Crown's case was minimal, because the evidence simply confirmed the other evidence in the Crown's case;

(iv) the illegality, although not deliberate, was extremely reckless and shows a level of competency far below that which is expected of police;

(v) no one has been or is likely to be sanctioned for the illegality; and

(vi) the evidence could have been properly and easily obtained following the issue of a search warrant by an authorised person.

22. The Crown prosecutor submitted, as to section 138 of the Evidence Act, that:

(i) the evidence obtained during the search has significant probative value, because it establishes that the package was in the possession of both accused from the time when they left the post office to when police entered into the premises in Groom Street; that the short time between when the accused entered into the premises in Groom Street and when police entered into the premises and found the package to be deconstructed shows that the accused had knowledge of the illegal contents of the DVD player; that the deconstruction of the DVD player showed that the accused had knowledge of the illegal contents of the player; that the package was deconstructed while both accused were inside the premises; that both accused had touched the deconstructed DVD player as fingerprints of both of them were found on the inside of the player; and that the photograph of the deconstructed DVD player on the mobile telephone found in the premises confirmed that the accused had knowledge of the illegal contents of the DVD player;

(ii) the evidence obtained during the search is very important in the Crown's case, because it shows the accused's possession of the package, the deconstruction of the package and the DVD player, and the accused's knowledge of the illegal contents of the player; and furthermore it confirmed the evidence obtained by the listening device;

(iii) the offence allegedly committed by the accused is a serious offence, which carries a sentence of imprisonment for a maximum of 25 years or a fine of a maximum of $550,000;

(iv) the seriousness of the illegality is low, because both Constable Lennard and Sergeant Beath believed, honestly but mistakenly, that Federal Magistrate Brewster had authority to issue the warrant, as indeed Federal Magistrate Brewster himself believed that he had authority to issue the warrant;

(v) the failure to have an authorised person issue the warrant was neither deliberate nor reckless, rather it was, at worst, careless, because it is clear that police wished to act within the law, as shown by the obtaining of the search warrant, albeit issued by a person not authorised to issue it;

(vi) although the search of the premises in Groom Street was illegal and, therefore, amounted to a breach of the International Covenant on Civil and Political Rights, the illegality was at the low end of the range of seriousness;

(vii) the evidence does not show or suggest that any disciplinary action has been taken against any police involved in the obtaining or the execution of the illegal search warrant; and

(viii) the Crown conceded that the evidence could have been easily obtained by the issue of a search warrant by a person authorised to issue such a warrant.

23. I accept, as does the Crown, that the search warrant was not legally issued; that police entry into and the search of the premises in Groom Street pursuant to the warrant was illegal; and that the evidence obtained during the execution of the warrant was illegally obtained. I see this as a fundamental and serious breach of the law. I agree with Mr Lawton that, putting aside section 138 of the Evidence Act, the evidence obtained during the search should not be admitted during the trial of the accused.

24. Once it is found that evidence was illegally obtained, it is for the Crown to persuade me to exercise my discretion under section 138 of the Evidence Act to admit the evidence notwithstanding the illegality by which it was obtained.

25. Section 138(1) of the Evidence Act provides that evidence that was illegally obtained must not be admitted into evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting it, and subsection (3) identifies the matters which must be taken into account in deciding whether the desirability of admitting it outweighs the undesirability of admitting it.

26. As to the probative value of the evidence and the importance of it in the Crown's case, I agree with the Crown prosecutor. I am satisfied that the evidence has substantial probative value, and that the evidence is significantly important in the Crown's case. Although I do not know every piece of evidence in the Crown's case, I know, from the material provided to me, that the Crown can prove that:

(i) one of the accused obtained the parcel collection card from the mailbox of the premises in Ashburner Street, Higgins;

(ii) both accused attended at the Kippax Post Office in Holt;

(iv) Mr Manyathala took possession of the package using some form of identification, albeit that his first given name is Lenin, not Fred;

(v) both accused went from the Post Office to the premises in Groom Street, Hughes; and

(vi) a listening device hidden by police in the package recorded snippets of conversation between two men.

I do not accept that the illegally obtained evidence simply confirms other evidence in the Crown's case. It is obvious that the illegally obtained evidence would prove that the package had been deconstructed, that both accused had touched the DVD player, and that one of them had photographed the deconstructed player, and this evidence would lead to a strong inference that both accused knew what was inside the DVD player before it was deconstructed. I am satisfied that the Crown's case without the illegally obtained evidence would be greatly weakened, perhaps to the point where the Crown could not establish the guilt of either accused beyond reasonable doubt.

27. As to the nature of the offence, it is beyond argument that the offence of attempting to take possession of a marketable quantity of an illegally imported border controlled drug, which, in this case, is 196.3 grams of pure cocaine, is a very serious offence. It is of great public importance that people who import prohibited drugs into Australia or who take possession of prohibited drugs imported into Australia be apprehended, charged, convicted and imprisoned.

28. As to the gravity of the illegally and whether it was deliberate or reckless, again I agree with the Crown prosecutor. I consider that police did not intend to trample over the rights of the accused. I accept that police knew that entry into and a search of the premises in Groom Street could not be done legally without the issue of a lawful search warrant, and that police wanted to and intended to comply with the law. That is why Constable Lennard, at the request of Sergeant Beath, applied to Federal Magistrate Brewster for the issue of a search warrant, in the honest but mistaken belief that Federal Magistrate Brewster was authorised to issue such a warrant. I do not blame Constable Lennard for applying to Federal Magistrate Brewster for the issue of the warrant, because she had been told by Sergeant Beath to apply to Federal Magistrate Brewster for the issue of the warrant, and she had earlier applied to him for the issue of other search warrants. I do not think that it is fair to expect Constable Lennard to query Sergeant Beath's advice that Federal Magistrate Brewster may issue a search warrant, or Federal Magistrate Brewster's authority to issue such a warrant. I consider that Constable Lennard's failure to obtain a legally issued search warrant was not deliberate or reckless. Further, I accept that police who executed the search warrant believed that the warrant had been legally issued by an authorised person, because none of them had any reason to suspect that the warrant had not been issued legally. I consider the gravity of the illegality to be minimal, as the failure to obtain a legally issued search warrant was, at worst, technical, something done by mistake and without intention to trample on the rights of the accused or to obtain an unfair advantage over them.

29. As to whether anyone has been sanctioned for not obtaining a legally issued search warrant, I understand that no-one has been sanctioned, and I would not expect Constable Lennard to be sanctioned for her doing what she did. I know that both Sergeant Beath and Constable Lennard known now that a federal magistrate is not authorised to issue a search warrant under section 3E of the Crimes Act 1914 (Cth).

30. As to the ease of obtaining the illegally obtained evidence without any illegality, I accept, as does the Crown, that the evidence could have been easily and properly obtained if the search warrant had been issued by an authorised person. If the warrant had been issued by an authorised person, the entry into and the search of the premises in Groom Street by police would have been legal, and the evidence obtained in and during and as a consequence of the search would have been legally obtained and admissible against the accused without argument.

31. Accordingly, I am persuaded, indeed, convinced, that the desirability of admitting the illegally obtained evidence far outweighs the undesirability of admitting it.

32. In the result, I refuse to make the orders sought by the accused and, instead, I order that the evidence obtained in and during and as a consequence of the search of the premises in Groom Street, Hughes, by police on 8 March 2011 be admitted into evidence during the trial of the accused fixed to commence on 17 June 2013.

I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the Applicant: Office of the Commonwealth Director of Public Prosecutions

Solicitor for Mr Manyathala: Paul Edmonds & Associates

Solicitor for Mr Ojielumhen: Ben Aulich & Associates