R v Stankovich [2004] ACTSC 93

Supreme Court of the ACT|2004-10-01|Before: Spender J

1. Pursuant to s 138(1) of the Evidence Act 1995 (Cth), evidence of the search of the person of the accused, and the finding of a quantity of heroin in a sleeve of the jacket of the accused, on 26 March 2003 in Canberra, is not admitted.

1. On 20 September 2004, I refused to admit evidence of a search of the person of the accused, and the finding of a small quantity of heroin in his jacket sleeve. I was prepared to permit evidence of the search of the accused's car, and the finding of methadone in the vehicle. I said I would publish my reasons. These are those reasons.

3. The Crown case is that, on the morning of 26 March 2003, the accused had in a package secreted in the right cuff of his denim jacket 3.478 grams of white powder, of which 29.7 per cent or 1.033 grams was heroin. In his car he had a plastic blister pack which contained ten tablets of methadone. Shortly after the accused had climbed out of his car, having parked it adjacent to Reid Oval, police officers stopped the accused, and a Detective Senior Constable Hains searched the accused and the accused's jacket, and later the Peugeot motor vehicle of the accused.

4. The offence of possessing heroin, a prohibited substance, carries a penalty of fifty penalty units, which is approximately $5,000, or imprisonment for two years, or both. The same maximum penalty applies to possession of methadone, a drug of dependence.

5. Objection is also taken by the accused to the evidence which the Crown proposes to lead concerning surveillance of the accused by the police on 13 March 2003 and on 26 March 2003 immediately prior to his apprehension. On each occasion, the accused was observed driving his vehicle to the CIT car park in Bruce, a distance of more than ten kilometres from where the vehicle was normally parked at Olim's car park adjacent to the accused's unit in Block E Kanangra Court, Ainslie Avenue, Reid. A short time after the accused had driven his Peugeot vehicle to the car park, a man known as Phuc Le, driving a maroon motor vehicle, drove his car and parked adjacent to the accused's vehicle, and on each occasion the accused was observed to speak to Mr Le while Mr Le was seated in the driver's seat of the maroon car and the accused was standing adjacent to the driver's window.

6. The Crown also proposes to lead, by means of a certificate of conviction, that on 11 July 1997 Phuc Le was convicted and sentenced in the Supreme Court of the Australian Capital Territory on one count of supplying a trafficable quantity of a prohibited substance namely heroin, and was sentenced to a term of imprisonment for five years and was ordered that he be not eligible for parole for a period of two years dating from 11 July 1997.

7. The Crown case is that the searches resulting in the finding of the heroin and the methadone were permitted by search warrants issued under s 187 of the Act. On 14 March 2003 (the day after the surveillance of the accused on 13 March 2003 which included the meeting on that day between Mr Stankovich and Mr Le), Constable Lyddiard at about 2.15 pm sought from Magistrate Peter Dingwall four search warrants, which the Magistrate issued. One of the warrants included the name Thomas Stankovich; one was in respect of premises at Flat 56, Block E, Kanangra Court, Ainslie Avenue, Reid in the Australian Capital Territory, also known as Block 1, Section 11, Reid in the Australian Capital Territory; one was in respect of a place namely a 1984 silver 505 STi Peugeot Sedan bearing ACT registration number YCN 31G; and the fourth which included a reference by name to a female.

8. The application to exclude the evidence of the searches is based on s 138 of the Evidence Act 1995 (Cth) ("the Evidence Act"), which relevantly provides:

138 Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

...

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

9. The contention by Mr Shane Gill, counsel for the accused, is that the search of the person of Thomas Stankovich was not authorised by the warrant on which the search of his person was based, and that the search and seizure of both the heroin and the methadone were conducted by a person not authorised by the warrant. The claim in respect of the finding of the heroin is that the search warrant for the person of Thomas Stankovich was invalid and the execution of the warrant was by a person who was not authorised by it; in respect of the search of the motor vehicle which resulted in the finding of the methadone, that search was executed by a person who was not authorised by the warrant.

10. It is necessary to set out the search warrant that purports to provide a lawful basis for the search of the person of Thomas Stankovich:

AUSTRALIAN CAPITAL TERRITORY

DRUGS OF DEPENDENCE ACT 1989

SEARCH WARRANT

To: Matthew Brett LYDDIARD, Matthew John DWYER, Michael Arnold CHEW, Michael SEK, Matthew James DOYLE, Ian Edward FAULDS, David Lee CRAFT, Sally Anne JENNINGS, Richard CHIN, Russell BROWN, Robert Terence BALL, Stephen PEREIRA, Andrew Paul SMITH, Mark Richard STEEL, Brendan Norman LAMB, Peter James LAMONT, Michael GORDON, Ivan Josip LUKATELA, Stephen John SZABO, Gregory MOWLE, Toby Bruce SEPPINGS, Tanya Gail SWIFT, Cecil Duncan MOONEY, Trevor COUTTS, Christopher John MORGAN, Geoffery Stephan HOBART, Adam Wayne SHARP, Donna Rae TANKARD, Richard Reginald THRIFT, Mark Darren USBACK, Nigel Patrick RYAN, Robert Walter PETERS.

all members of the Australian Federal Police, stationed at Canberra in the Australian Capital Territory.

WHEREAS I, PETER GEOFFREY DINGWALL a Magistrate within the meaning of Section 187(2) and 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 on

Thomas STANKOVICH born 14 August 1949

a thing or things of a particular kind namely;

Heroin, utensils used in the administration of heroin, 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 171(1) of the Drugs of Dependence Act 1989, namely Possess Prohibited Substance.

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.

GIVEN under my hand at Canberra in the said Territory on the fourteenth day of March in the year two thousand and three.

DATE: 14 March 2003 TIME: 2.33 pm

[signed] P. Dingwall

A Magistrate in and for the Australian Capital Territory

11. The body of the warrant refers to ss 187(2) and 187(3) of the Act. It is necessary to set out s 187 of the Act, which deals with search warrants, in full:

187 Search warrants

(1) In this section:

private place does not include a place ordinarily private that is for the time being -

(a) used for a public purpose; or

(b) a place of common resort; or

(c) open to the public, on the payment of money or otherwise.

(2) If an information on oath is laid before a magistrate 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 magistrate 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 information on oath is laid before a magistrate 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 magistrate 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) A magistrate shall not issue a warrant under this section unless -

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

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

(5) A magistrate may issue a warrant under subsection (2) or (3) subject to conditions limiting the powers set out in the relevant subsection.

(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

(b) whether the entry or search is authorised to be made at any time of the day or night or during specified hours of the day or night; and

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

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

(e) if the warrant is issued under subsection (2) - a way of identifying each person specified in the warrant by -

(i) name; or

(ii) description; or

(iii) a photograph of the person attached to the warrant; and

(f) a date, not later than 28 days after the date of issue of the warrant, when the warrant will cease to have effect.

(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.

12. The search warrant procedure is a procedure authorised by statute which validates what would otherwise be unlawful conduct at common law. In Entick v Carrington [1765] EWHC J98; (1765) 95 ER 807, the Lord Chief Justice Lord Camden said at 817-8:

... our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. ... we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have.

13. Mason J (as he then was) said in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 81-2:

The search warrant has been described as "part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known" (Attorney-General (Nova Scotia) v. MacIntyre (1982) 132 D.L.R. (3d) 385, at p.397, per Dickson J.). Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant.

For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation.

14. As a unanimous High Court said in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 ("George v Rockett") at 110:

A search warrant ... authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s. 679 [of the Queensland Criminal Code], the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property.

State and Commonwealth statutes have made many exceptions to the common law position, and s. 679 is a far-reaching one. Nevertheless, in construing and applying statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

16. Brennan J (as he then was) observed in Alister v The Queen (1983-1984) 154 CLR 404 at 456:

`It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way: cf. Sankey v. Whitlam (1978) 142 C.L.R., at pp.42, 61-62.

17. This emphasis on strict compliance with the "statutory conditions governing the issue of search warrants" and, I add, their execution, approaches quite closely the constitutional safeguard of "due process" in American jurisprudence. It is compatible with an important observation by Barwick CJ in The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334-5, where the Chief Justice expressed the view that evidence obtained in breach of statute would more readily warrant the rejection of the evidence than where there has been unlawfulness deriving from the requirements of the common law:

Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion : or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

18. On the question of admissibility of the evidence of the search and seizure which resulted in the finding of the heroin and the methadone, I am not concerned with the general exercise of discretion, which in all proceedings in an ACT court is now governed by the statutory provisions of ss 135, 136 and 137 of the Evidence Act.

19. The admissibility of the evidence of the heroin and methadone in this case is governed by s 138(1) of the Evidence Act. Where there has been the improper obtaining of evidence, or the obtaining of evidence in contravention of an Australian law, that section provides for a prima facie rule of exclusion. The evidence is to be admitted only if the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The Crown therefore bears an onus of showing positively that the balance tilts in favour of admitting the evidence. That weighing exercise requires the Court to take into account the matters listed in s 138(3)(a) to (h) inclusive, but may take into account other factors as well. Those other factors, in my opinion, would ordinarily include the public interest in bringing criminal offenders to justice, and the public interest in seeing that police officers, whose function is to uphold the law, do not themselves break it. It is important to the whole judicial process that Courts avoid giving the impression of tolerating or even condoning unlawful or improper conduct on the part of police officers, by too readily waiving the need to comply with the statutory conditions for the invasion of common law rights.

20. I respectfully agree with the observations of Kirby J and his Honour's analysis of s 138 of the Evidence Act, in Eade [2000] NSWCCA 369; (2000) 118 A Crim R 449 at 460-1.

21. The evidence on the voir dire concerning the search and seizure in this case includes the statements by Detective Senior Constable Hains, now Detective Sergeant, that he asked Mr Stankovich to take off his jacket. The jacket was passed to him which he then handed to Constable Mooney who placed it on the ground. Detective Senior Constable Hains said that he conducted a search of the black denim jacket and located in the right-hand sleeve a small ball of material wrapped in masking tape. He also said that "I conducted a search of his car". While it is true that Constable Lyddiard was present at all times during the search of the accused and of the vehicle, I find that the search both of the person of Mr Stankovich and of his car was conducted by Detective Senior Constable Hains. I am satisfied that what Detective Senior Constable Hains did was not rendering "assistance that was necessary and reasonable" to the search of Mr Stankovich and the car by one or other of the police officers named in each warrant.

22. I am satisfied that Detective Senior Constable Hains believed he was authorised by the relevant warrants to conduct the searches that he did and make the seizures which he did, and I am further satisfied that his omission from the officers named in the respective warrants was by inadvertence and an oversight by Constable Lyddiard, who drafted them.

23. I find that the search by Detective Senior Constable Hains which resulted in the finding of the heroin and the methadone was not authorised by the warrants, and the evidence obtained as a result of those searches is evidence that falls within s 138(1)(a) of the Evidence Act.

24. Counsel for the accused relied on the judgment of Higgins J in Applebee (1995) 79 A Crim R 554 ("Applebee") for the conclusion that an officer not named in the warrant was not authorised to take an active part in the search and seizure, and that pursuant to s 10(1) of the Crimes Act 1914 (Cth) ("the Crimes Act") , such an officer could render "such assistance as is necessary and reasonable" to execute the warrant, but not to actively seize the goods. Higgins J in Applebee excluded the evidence, but not solely on the ground that an officer not named in the warrant was not authorised to take an active part in the search, and seizure. His Honour also found that the warrant was not executed within a reasonable time, and the warrant did not authorise a general search and seizure of goods suspected of being stolen.

25. Applebee has been the subject of some criticism in later decisions, including Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372 ("Dunesky") and Hartnett v State of New South Wales [1999] NSWSC 265 ("Hartnett").

26. For present purposes, it is important to recognise that Applebee was concerned with a search warrant issued under the Crimes Act as it stood before its later repeal and replacement. Section 3G of the Crimes Act currently provides for the assistance and use of force in executing a warrant under the Crimes Act, as follows:

In executing a warrant:

(a) the executing officer may obtain such assistance; and

(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and

(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

27. Even pursuant to that section, in the execution of a warrant under the Crimes Act, the assistance that might be obtained by an executing officer is "such assistance ... as is necessary and reasonable in the circumstances."

28. A warrant authorising a search and seizure of relevant information recorded on a computer may require the authorised searcher to obtain assistance from a computer expert, as being necessary and reasonable in the circumstances. So, too, in a search warrant in aid of complex commercial matters, the assistance of taxation officers or accountants might be necessary and reasonable in the circumstances. In Dunesky, Lockhart J said at 385

The facts and circumstances that surround this matter are complex and have involved years of investigation by the Australian Taxation Office into the activities of the applicants. In my view it is not only permissible under s 10 of the Crimes Act for ATO officers to accompany the police officers on the search; but it is probably in the interests of both the prosecuting authorities and the applicants that they do so. Who better to assist in the identification of relevant documents (ie relevant according to the terms of the warrant) than the ATO officers who are intimately conversant with the subject matter of their audits? It is true that the ATO officers cannot take over the role of the police officers in the conduct of the search and seizure of documents; but plainly they were retained for the purpose of distinguishing between relevant and irrelevant material, that is material which would or would not answer the description of the documents in the warrants themselves.

29. In this case, Detective Senior Constable Hains was not rendering assistance in the execution of the warrants. As Dunford J said in Hartnett at par 19:

... an assistant is someone who assists_, and a distinction is to be drawn between an_ assistant who acts with and helps a principal, and a delegate or representative or agent who acts in place of the principal.

30. Detective Senior Constable Hains in fact was executing the warrants, and he was not authorised to do so. What he did was not necessary in the circumstances of the case, there being persons authorised by the warrant present who could have effected the searches that were effected by Detective Senior Constable Hains.

31. Were that to be the only difficulty, I, having regard to the factors in s 138(3) of the Evidence Act, would admit the evidence, because the desirability of admitting the evidence would outweigh the undesirability of admitting it. The evidence in my opinion is strongly probative, being real evidence and crucial to the proceeding. The impropriety or contravention, being a search by a police officer not authorised to conduct the search, amounted to a trespass, but did not evidence a contumelious disregard of the rights of the accused. The search was the result of a mistaken belief that the police officer was authorised to conduct the search. The search was conducted in a polite and appropriate way. The impropriety or contravention was neither deliberate nor reckless but the consequence of inadvertence.

32. Hulme J said in Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257 at 262-3:

It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term "reckless" in par (e) of s 138(3). In the context of "improperly or in contravention of an Australian law" the concept "reckless" must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a "don't care" attitude generally, in this case, by [the "custody manager" under cl 28 of the Crimes (Detention after Arrest) Regulation 1998 (NSW)].

33. There would have been no difficulty in obtaining the evidence by a person who was authorised by the warrant to obtain the evidence. In all the circumstances, I do not think that any other proceedings is likely to be taken in relation to the impropriety or contravention constituted by the unauthorised search.

34. However, the fact that the searcher was unauthorised is not the end of the matter. In my judgment the warrant to search the person of the accused was invalid on its face. Section 187(2) of the Act is the provision which authorises the search of persons and property under their immediate control. Section 187(3) of the Act is a separate and distinct provision which authorises the search of places.

35. The warrant which purports to authorise the search of Thomas Stankovich is clearly, and wrongly, based on the requirements of s 187(3). The warrant asserts that the Magistrate was satisfied:

... that there are reasonable grounds for suspecting that there is at any place situated on

Thomas STANKOVICH born 14 August 1949

a thing or things of a particular kind ... (Emphasis added)

YOU ARE HEREBY AUTHORISED with such assistance and by such force as is necessary and reasonable to enter the said place specified above ... 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 ... (Emphasis added)

37. It is plain that both the expressed statutory basis for the authorisation, and the authorisation itself, are flawed, as neither is appropriate to the task of searching a person rather than searching a place.

38. It is difficult to believe how a Magistrate could issue a warrant so expressed, and authorise such conduct. The observations of Burchett J in Parker v Churchill (1985) 9 FCR 316 at 322 are apposite:

The duty, which the justice of the peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.

39. The second erroneous aspect which appears from the face of the warrant is the reference to "anything else". It is difficult to see how the Magistrate could be satisfied that:

... there are reasonable grounds for suspecting that there is ... on

Thomas STANKOVICH ...

... anything else which the Informant believes on reasonable grounds to be connected with a particular offence against Section 171(1) of the Drugs of Dependence Act 1989, namely Possess Prohibited Substance.

40. Section 187(2) of the Act requires specification of the things as to which there are reasonable grounds for suspecting a connection with a particular offence. One of the requirements of the section is that the magistrate has to be satisfied that there are reasonable grounds for suspecting that the things named, or the things of a particular kind named, are connected with a particular offence.

41. Further, s 187(2) of the Act authorises the seizure of "any such clothing or property that the police officer believes on reasonable grounds to be connected with the offence". That reference to belief ought properly appear in the authorisation section of the search warrant, and not in the description of the things suspected of being on the person.

42. 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. In those circumstance, the Magistrate may authorise:

... each 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 [named] 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.

43. The submissions of the Crown based on s 187(7) misunderstand the operation of that subsection. The reference to "a" police officer in that subsection is not a statutory authorisation for any police officer whatever to seize anything that he or she believes on reasonable grounds is connected with the offence named in the warrant, even though the thing is not of a kind specified in the warrant. The section only has operation "in the course of searching in accordance with a warrant issued under this section". The section thus permits a police officer, being one who is authorised by a warrant under s 187 to search for specified things, to seize things that are outside the kind of things specified in the warrant, if the circumstances for such seizure exist.

44. In the case of the warrant relied on to search the person of Thomas Stankovich, there has not been "strict compliance with the statutory requirements" governing the issue of a warrant to search a person. So egregious has been the departure from those requirements, that the warrant can only be regarded as a laughable parody of what is required to render lawful what would otherwise be a violation of a person's right to the integrity of his person.

45. Having regard to the gravity of the departure from what is required under Australian law for a valid warrant to search a person (the factor referred to in s 138(3)(d) of the Evidence Act), and the need to deter any expectation that slovenly and serious departure from the conditions that the legislature has imposed before a person's rights to the integrity of his person can be invaded will be tolerated or condoned, I will not admit the evidence of the search which led to the seizure of the heroin found in the coat sleeve of the accused.

46. In the light of the above it is unnecessary, strictly, to consider the admissibility of the evidence of surveillance in respect of the possession of heroin, because absent evidence of heroin on the person of Mr Stankovich, the Crown has no case.

47. I would have thought that evidence that the accused person had arranged a rendezvous with a person who had a conviction for trafficking in heroin at a place and in circumstances that were at the very least suspicious, would explain why the police officers would seek to get warrants in the first place and why they would seek to execute them shortly after the second rendezvous. To be admissible on the trial, however, the surveillance evidence has to be probative of the charge of possession of heroin.

48. The evidence of surveillance and of the meeting between the accused and Phuc Le can be seen as part of the res gestae, and admissible on that account. That evidence, however, is of little probative value in proving possession of heroin, in the absence of admissible evidence that the accused was in possession of heroin. I mean to convey that if in fact the accused is shown to have been in possession of heroin, it adds nothing to the Crown case to show that a short time prior to his being found in possession, he had consorted with a person who, in 1997, had been convicted of trafficking in heroin. The only utility of such evidence is to provide a possible explanation of its source. That, however, is extraneous to what the Crown has to prove on the charge of possession of heroin.

49. The evidence as to the possession of heroin either stands or falls on its merits. While the evidence of surveillance and the meeting between the accused and a person who some time ago had a conviction for trafficking in drugs might provide a background to the circumstances leading up to the evidence of possession of heroin, the probative value of that evidence, in my opinion, is outweighed by the danger of unfair prejudice to the defendant.

50. I would therefore exclude the evidence of surveillance on each occasion, pursuant to s 137 of the Evidence Act.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.

Solicitor for the Prosecution ACT Director of Public Prosecutions

(Detention after Arrest) Regulation 1998

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Judgment (69 paragraphs)

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