R v Rees [2005] ACTSC 91

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - search warrants - validity of warrant - whether powers of search and seizure contained in warrant beyond power conferred by statute - Drugs of Dependence Act 1989 (ACT), s 187 - whether impugned phrase in warrant is severable - application of severance principles and Legislation Act 2001 (ACT), s 43.

Drugs of Dependence Act 1989 (ACT), Div 11.3, s 164, s 169, s 171, s 187

Crimes Act 1914 (Cth), s 23V

Evidence Act 1995 (Cth) s 97

Legislation Act 2001 (ACT), s 13, s 14, s 43

Acts Interpretation Act 1901 (Cth), s 46

Customs Act 1901 (Cth)

R v McGhee [1993] SASC 4070; (1993) 61 SASR 208

Lewis [1989] NTCCA 8; (1989) 46 A Crim R 365

R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88

The Queen v Khajehnoori [2005] ACTSC 76

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

Von Arnim v Health Insurance Commission [2004] FCAFC 33

_Malubel Pty Ltd v Elder [No. 2] (_1999) 73 ALJR 269

Peters v Attorney-General (NSW) (1998) 16 NSWLR 24

Parker v Churchill (1985) 9 FCR 316

Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334

Re Arno: ex parte Forsyth (1985) 9 FCR 557

R v NG (2002) 5 VR 257

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427

1. In respect to paragraph 3 of the notice of motion dated and filed on 27 July 2005, what was said by the accused as a consequence of questioning by police officers on 14 November 2003, is not admissible in evidence in these proceedings.

2. In all other respects the notice of motion be dismissed.

1. Gwyn Alun Rees, the accused, is charged with possessing a trafficable quantity of a prohibited substance, MDMA (ecstasy) for the purposes of sale or supply on 14 November 2003 contrary to s 164(3) of the Drugs of Dependence Act 1989 (ACT). He is also charged with an offence of possessing a prohibited drug on the same day contrary to s 171(1) of the Drugs of Dependence Act. There is a further charge that he possessed a drug of dependence, namely cocaine, on the same day contrary to s 169(1) of the Drugs of Dependence Act.

2. The trial for this matter was set down for 1 August 2005. By notice of motion dated 27 July 2005 the accused raised, by way of pre-trial application, certain matters concerning the admissibility of particular evidence that was proposed to be called as well as an issue concerning a witness not called at committal, but who the prosecution proposed to call at trial.

3. Having regard to the prosecution's submissions that were made in this matter which conceded defects in the search warrant and an issue as to the application of s 23V of the Crimes Act 1914 (Cth) (Crimes Act), it may also have been appropriate for the prosecution to have also put on their own notice of motion. Because the accused had elected trial by judge alone, there was no inconvenience or expense incurred in respect of empanelling a jury but, nonetheless, I draw attention to the requirement that notices of motion in relation to pre-trial matters are required not later than 14 days before the date set for trial (O 86 Div 80.6 r 19), irrespective of whether the trial is to be by jury or judge alone.

4. In any event, I proceeded to hear the matters raised by way of pre-trial application and permitted the prosecution to call, on the voir dire, the witness concerned. Other material was placed before me for the purposes of determining the other matters raised by the notice of motion.

5. The accused had been charged consequent upon a search by the Australian Federal Police on 14 November 2003 in the execution of a search warrant granted pursuant to Division 11.3 of the Drugs of Dependence Act of premises at 5 Lewin Street, Lyneham. During the search of one of the bedrooms in those premises, police located a number of items, one of them being a sunglasses case which was inside a suitcase located under or by the bed in that room. Inside the sunglasses case were a number of items inside a large clipsal bag, in particular six tablets found to contain MDMA together with six smaller clipsal bags. Inside five of those clipsal bags were located a number of tablets, each containing MDMA. The total number of tablets found was 43. An analysis of the tablets found that they contained a total weight of pure MDMA of 2.1 grams. The sixth bag contained what was described as a small amount of cocaine. Police also found in the bedroom $1,800.00 in cash (all in $50.00 notes) found in a book on the dresser and several small plastic bags identical to those located in the sunglasses case. Personal papers in the name of the accused were also located in the bedroom.

6. Later that day, Constables Craft and Richardson spoke to the accused at his place of employment and informed him that a search had taken place. A caution was given to the accused after which the accused is alleged to have made admissions. That conversation was not tape-recorded but notes were made, apparently immediately after the conversation, in the car park adjacent to the employment premises.

7. The notice of motion sought the following orders:

1. That the evidence of the search of premises at 5 Lewin Street, Lyneham in the Australian Capital Territory upon the grounds that the evidence was unlawfully or improperly obtained by reason of the warrant relied upon being flawed.

2. Non-drug items seized from 5 Lewin Street, Lyneham on the basis that they are not relevant to the matters charged.

3. Evidence of admissions on the basis that they were unlawfully and improperly obtained.

4. Orders that the proceedings against the accused be stayed until the accused is accorded fairness in respect of the evidence of a witness who was not called by the Prosecution in the committal proceedings and for whom no witness statement has been provided, namely David Morgan.

8. It is convenient to deal with the matters raised in the notice of motion in reverse order.

9. The witness sought to be called by the prosecution was the owner of the premises at 5 Lewin Street, Lyneham who could confirm the accused lived in the premises, that he, the owner, used the premises infrequently and that he did not possess the brand of sunglasses related to the sunglasses case that was found. It appears that the witness was not called at committal but Ms Jones, who appeared as counsel for the Director of Public Prosecutions, considered that he should be called in the trial. In those circumstances, I permitted the witness to be called and cross-examined on the voir dire in accordance with the practice referred to in R v Basha (1989) 39 A Crim R 337. There is, accordingly, now no ground for staying the proceedings.

10. Because what the accused said to Constable Craft at his place of employment was not recorded, it was said that s 23V(1) of the Crimes Act would make any admission made by the accused on that occasion inadmissible.

11. Section 23V of the Crimes Act is applied by virtue of s 23A(6) of that Act. Section 23A(6) provides:

(6) If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:

(a) references to Commonwealth offences included references to that offence; and

(b) references to a law of the Commonwealth included references to a law of that Territory.

12. Section 23V(1) provides:

23V Tape recording of confessions and admissions

(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:

(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission--the questioning of the person and anything said by the person during that questioning was tape recorded; or

(b) in any other case:

(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and

(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and

(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and

(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and

(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).

13. The police officers in this case made a deliberate decision to not take a tape-recorder with them when they went into the accused's workplace. Constable Craft said that this was in the interests of not drawing attention to the accused. He also said that the purpose of speaking to the accused was to inform the accused of the search under warrant and that "a number of items of interest were located and seized from his premises". Having done so, the accused was apparently then cautioned and a statement made to him to which he responded. It is clear that the circumstance of not taping the accused were of the police officer's own choosing. It cannot be said that the circumstances were such that it was not reasonably practicable to tape record what was said and s 23V(1)(a) makes inadmissible any admissions made in those circumstances.

14. After speaking to the accused, Constable Craft made notes in the car park outside the premises but he did not return to read them to the accused as required by s 23V(1)(b)(ii) and no effect was given to the other procedures provided for in s 23V(1)(b). Although s 23V(5) of the Act gives me a discretion to admit the evidence notwithstanding non-compliance with s 23V(2), I need to be satisfied there are special circumstances which would mean that the admission of the evidence is not contrary to the interests of justice. I am not so satisfied. By not taking the tape-recorder with them, the police officers had deliberately not made this an occasion of questioning the accused. Because of that choice, they should not be permitted to use the occasion to now seek to avoid compliance with the required procedures for questioning a suspect.

15. In oral argument, it was put that the accused was not being "questioned" and therefore s 23V of the Act did not apply. That seems to me to be a submission devoid of any merit. Although, at no stage, were the exact words of the "caution" that was said to be given by the police officer put before me, the caution had to be a prelude to inviting the accused to say something. Whatever was said to the accused had to be an invitation to respond and could only be characterised as a questioning of him. Accordingly, I ruled that the evidence proposed to be given of any admission as a response was inadmissible.

16. This submission assumed the validity of the warrant. Amongst the items seized during the course of the search was the $1,800.00 all in $50.00 notes found in a book on the dresser which was near several small plastic bags identical to those located in the sunglasses case in which the drugs were contained. The warrant expressly authorised the seizure of "plastic bags" and "monies" connected with the offence of possess drug of dependence for the purpose of sale or supply to any other persons. As I understand it, the submission is that the evidence is irrelevant as to whether the drugs that were found were for sale or supply. That is because it is said that the money could only relate to past drug transactions, not to possible future ones. A contention was also made that, in any event, this was tendency evidence in respect of which notice should be given in accordance with ss 97 and 99 of the Evidence Act and as such ought to be excluded under s 101 of the Act on the basis that its prejudicial effect was not substantially outweighed by its prejudicial effect. Both contentions seem to me to have no validity. The finding of the monies is part of the surrounding circumstances, the context in which the offence is alleged to have been committed. Such circumstances are not adduced because they show a tendency, but rather they are part of the surrounding circumstances tending to prove the commission of the offence. Means of drug dealing and evidence tending to prove the existence of that dealing for the purposes of showing that drugs in the possession of an accused person are there for that purpose is a well recognised circumstantial aspect of proving the sale or supply element of the possession. In R v McGhee [1993] SASC 4070; (1993) 61 SASR 208 at 209-210, Cox J said in respect of the finding of $900.00 cash with a packet of amphetamine in a wallet:

If the accused was running a drug business at the time of the raid then it would be reasonable in the circumstances, in the absence of any plausible alternative explanation, to regard the $900 cash, or at least a substantial part of it, as his working capital, with some of it available as a cash float for expected sales. Moreover, the cash itself in all the circumstances is evidence tending to prove the existence of an ongoing business. That was the view that I took in the rather similar case of Polain (1989) 52 SASR 526. However, it is no doubt likely on that hypothesis that the money was also the proceeds of past dealings. In my opinion, that does not make the evidence any the less relevant and admissible in this case.

17. Cox J then discussed the decision of the Northern Territory Supreme Court in Lewis [1989] NTCCA 8; (1989) 46 A Crim R 365. In that case, Rice J, although in dissent with the other members of the Northern Territory Court of Criminal Appeal, Martin and Angel JJ, observed (at 367):

The fact that a sizeable sum of money was found in the possession of the appellant, as opposed to no money at all being so found, tends to rebut a defence based on a purpose other than for supply. That purpose may be gleaned from evidence of what the appellant has done in the past including, for example, the fact of his being in possession of a large sum of money which is at least consistent with being the proceeds of sale of cannabis.

18. Like Cox J, I find the reasoning and conclusion of Rice J generally persuasive particularly in view of the statutory presumption in s 164(8) of the Drugs of Dependence Act. The evidence seized under the authority of the warrant is relevant and is clearly admissible without necessarily resorting to tendency reasoning. I am satisfied that any prejudicial effect based on such reasoning can be dealt with by appropriate directions, if necessary.

19. The accused's major challenge was to the warrant itself. It was said that the warrant is defective on its face. The warrant, which is directed to named persons, is in these terms:

WHEREAS I Phillip Raymond Thompson a Magistrate within the meaning of Section 187(3) of the Drugs of Dependence Act 1989, of the Australian Capital Territory, being satisfied by information on oath placed before me this date, that there are reasonable grounds for suspecting that there is at any place situated at

Block 32, Section 14 in the Australian Capital Territory, also known as, 5 Lewin Street Lyneham in the said Territory, a thing or things of a particular kind, namely:

Amphetamine, utensils used in the administration of amphetamine, syringes, spoons, resealable plastic bags, paper bags, aluminium foil, scales, diaries, monies and accounts or anything else which the Informant believes on reasonable grounds to be connected with a particular offence, against Section 164(2) of the Drugs of Dependence Act 1989, namely Possess a Drug of Dependence for the purpose of sale or supply to any other person(s). [My underlining]

YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable to enter the said place specified above in the Australian Capital Territory at any time of the day or night within the period of twenty eight days from and including the date of this warrant, and to search the said place, and if the said place is a private place, to search any person found at or in the place, or any person whom the person named in the warrant reasonably believes to be about to enter or to have recently left the place, and the clothing that person is wearing, or property in the apparent control of the person and to seize such thing or things of a particular kind specified above, clothing or property that the person named in this warrant believes on reasonable grounds to be connected with an offence against the Drugs of Dependence Act 1989, and for so doing this shall be your sufficient warrant.

20. The section which authorises the warrant is s 187 of the Drugs of Dependence Act 1989 (ACT) and that section contains the following relevant provisions:

(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.

(4) An issuing officer shall not issue a warrant under this section unless--

(a) the informant or some other person has given to the issuing officer, either orally or by affidavit, the further information (if any) the issuing officer requires about the grounds on which the issue of the warrant is being sought; and

(b) the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.

...

(6) A warrant issued under this section shall state or set out--

(a) the purpose for which the warrant is issued, including a reference to the nature of the offence in relation to which the entry and search are authorised; and

...

(c) a description of the kind of things authorised to be seized; and

(d) any conditions to which the warrant is subject; and

...

(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.

21. I have emphasised the words in the warrant "or anything else which the Informant believes on reasonable grounds to be" . Those same words appeared in warrants which were the subject of challenge in two recent cases in this court.

22. In R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88 at 99 [42], Spender J said:

Section 187(2) of the Act, properly understood, and s 187(4)(b), requires a Magistrate to be satisfied that there are reasonable grounds for suspecting that there is, or will be, a thing or things of a particular kind - naming them - on or in the clothing that is being worn by, or in any property in the apparent control of a named person, and which things are "connected with a particular offence", describing that offence. There is no basis for referring to "anything else". It is necessary for the Magistrate to be satisfied that the suspicion is that the thing or things are connected with a particular offence, describing it. ...

23. In The Queen v Khajehnoori [2005] ACTSC 76 at [10], Gyles J accepted that passage as a correct statement and that the words "or anything else" describing the things to be searched for as failing to satisfy the requirement for specificity required by ss 187(2) and (3). In his view, the impugned words extended the scope of the evidential material which might be seized. Nonetheless, Gyles J in Khajehnoori was satisfied that those words could be severed without affecting the balance of the warrant.

24. In the case before Justice Gyles, it appears that the words "or anything else" were separated from the words "which the Informant believes on reasonable grounds to be", by a comma. Perhaps nothing turns on the punctuation, but I find it difficult to read both the warrant I am considering and the one before him as qualifying all the items that it specifies as those that the person seeking the warrant believes to be connected with the offence. If the warrant was so construed, that would create an unacceptable level of uncertainty as the person seeking the issue of the warrant may well not be the executing officer. It may be noted also that s 187(7) of the Drugs of Dependence Act allows the searching officers to seize things not of the kind specified in the warrant if such an officer believes, on reasonable grounds, that they are connected with the offence or any other offence.

25. I do not think that it can be fairly said that it was intended that the qualification apply to all the items set out in the warrant but rather that the "or anything else" is the only item that it qualifies. I would apply the comment of Burchett J in Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 at 546:

_But 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.

That being the case, the defect in the warrant is that it authorises a search in respect of "anything else that the Informant believes on reasonable grounds to be" connected with the named offence. In other words, the warrant authorises a search for like items that are only specified by reference to a belief held, in this case, by the person seeking the issue of the warrant.

26. A warrant may be invalid if it is so vaguely worded that a person affected by it cannot know the object of the search (Ousley v The Queen (1997) 192 CLR 69 at 107 per McHugh J). However, in the present case, the object of the search is properly described by the other items referred to as connected with the named offence. It is only uncertain in its operation in respect of the impugned phrase.

27. Gyles J, in Khajehnoori (supra) at para [13] of that decision, held that where the effect of severing an ineffective part of a warrant was to narrow the scope of the evidential material that might lawfully be seized, it was permissible to sever that part. He referred to the recent application of the principle of severance by the Full Federal Court in Von Arnim v Health Insurance Commission [2004] FCAFC 33. In _Malubel Pty Ltd v Elder [No. 2] (_1999) 73 ALJR 269, the High Court, McHugh, Kirby and Hayne JJ, in refusing application for special leave, held that the applicable principle of severance in its application to search warrants to be as stated in Peters v A-G (NSW) (1998) 16 NSWLR 24 at 41. Peters v A-G (NSW) followed the decisions of the Federal Court in Parker v Churchill (1985) 9 FCR 316 at 320-322 (Burchett J) and the Full Court of the Federal Court in that case [1986] FCA 88; (1986) 9 FCR 334 at 350 and Re Arno: ex parte Forsyth (1985) 9 FCR 557 at 573-575.

28. Apart from what may be regarded as the common law principles of severance that operate on warrants of the nature here, the provisions of the Legislation Act 2001 (ACT) would appear to apply. Section 43 of the Act requires that statutory instruments are to be interpreted not to exceed powers under the authorising law. Section 13 of that Act provides:

(1) A statutory instrument is an instrument (whether or not legislative in nature) made under--

(a) an Act; or

(b) another statutory instrument; or

(c) power given by an Act or statutory instrument and also power given otherwise by law.

...

(3) A reference to a statutory instrument includes a reference to a provision of a statutory instrument.

Section 14 of that Act also provides:

(1) An instrument is any writing or other document.

Note Writing is defined in the dictionary, pt 1.

(2) A reference to an instrument includes a reference to a provision of an instrument.

Writing, in part 1 of the dictionary, is defined as including any way of representing or reproducing words in a visible form.

29. It is clear from these provisions that a search warrant issued under s 187 of the Drugs of Dependence Act 1989 is a writing made under an Act and is a statutory instrument for the purposes of s 13 of the Legislation Act.

30. Section 43 of the Legislation Act provides:

(1) A statutory instrument is to be interpreted as operating to the full extent of, but not to exceed, the power given by the Act or statutory instrument under which it is made (the authorising law_)._

(2) Without limiting subsection (1), if a provision of a statutory instrument would, apart from this section, be interpreted as exceeding power--

(a) the provision is valid to the extent to which it does not exceed power; and

(b) the remainder of the instrument is not affected.

(3) Without limiting subsection (1), if the application of a provision of a statutory instrument to a matter would, apart from this section, be interpreted as exceeding power, the provision's application to other matters is not affected.

(4) This section is in addition to any provision of the statutory instrument or authorising law.

(5) This section is a determinative provision.

[Omitting examples]

31. In R v NG (2002) 5 VR 257 the Victorian Court of Appeal held that a comparable provision (s 46 of the Acts Interpretation Act 1901 (Cth)) applied to warrants under the Customs Act 1901 (Cth). The provision of the Legislation Act which I am considering here is in clearer terms than that which was considered in that case. I am informed by the detailed discussion of the authorities in that case and the approach taken by the court to apply the provisions of s 46 of the Acts Interpretation Act 1901 (Cth) to the warrant before the court. I consider that on its proper construction, s 43 of the Legislation Act applies to the warrant under consideration in this case. The warrant is a statutory instrument and s 187 of the Drugs of Dependence Act an authorising law.

32. In the present case, the appropriate interpretation of the warrant is to give it no force or effect insofar as it authorises a search for "anything else that the Informant believes on reasonable grounds to be connected" with the named offence.

Whether the impugned phrase indicates error in issuing the warrant

33. It was also submitted that the inclusion of the impugned phrase was an indication that the magistrate had not addressed the right question in issuing the warrant. That submission might have greater force if the qualifying phrase as to the reasonable belief of the person seeking the issue of the warrant was to be construed as attaching to all of the items for which search might be made. I have not so construed it. Moreover, the declaration in the warrant of satisfaction on the part of the magistrate that there are reasonable grounds for suspecting that the things connected with the named offence are at the specified place recites accurately the satisfaction required by the Act. Mr Gill, who appeared as counsel for the accused, relied upon two High Court decisions to support his contention. Both cases seem to me to be quite distinguishable. In Ousley v The Queen (supra), the first of the cases relied upon, the warrant did not recite that there were reasonable grounds for one of the required purposes of the warrant (see particularly at p86). The other case, that of Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, may also be distinguished in that the Court there held the issuing authority had misapprehended the nature and scope of the power conferred by reference to a condition expressed in the warrant which could be said to permit an unlawful entry. Because of the way that I have construed the warrant in this case, there is no reason to go behind the recital in the warrant which correctly expresses the jurisdictional test for its issue. Any misconception that the magistrate had as to the scope of the authorisation does not, in this case, affect that test.

34. Because I am satisfied that the warrant validly authorised the seizure of the items upon which the prosecution wish to rely in this case, it is not necessary to consider their exclusion from evidence by reference to s 138 of the Evidence Act. Two important matters that would be relevant to that exercise are the fact that no item was seized in reliance upon the impugned phrase in the warrant and that s 187(7) of the Drugs of Dependence Act would have, in any event, permitted seizure if one of the searching officers had had such a belief in an item not specified being connected with the offence (cf R v Khajehnoori at [19]).

35. In respect to paragraph 3 of the notice of motion, I rule that what was said by the accused as a consequence of questioning by police officers on 14 November 2003, is not admissible in evidence in these proceedings.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)