R v Trevitt [2005] ACTSC 48

3. It appears that was located on the right-hand side of the rear seat, that is behind the driver, but within a pocket attached to the passenger seats itself. It does not appear that it was in plain view, not that that matters for the purpose of the search, but it was simply found when the pocket was opened up. I understand that was done by pulling the elasticised opening of it open and there it was found within the pocket.

4. The second item was a short plank of wood in a rectangular shape. It appears that that piece of wood had what could be described as a lid fashioned out of one end of it, which, when removed, revealed a hollowed-out pocket inside. This pocket contained certain items in plastic bags, which were analysed. They basically contained the items referred to in the first three of the four counts presented in the indictment.

5. The content of the brown glass eyedropper was the material referred to in the fourth count of the indictment.

6. Now, it is also common ground that, when questioned about these items, Mr Trevitt agreed that he was the driver of the vehicle and that it was the vehicle named in the warrant.

7. He stated that he had never previously seen the brown glass eyedropper and bottle; he made the same comment concerning the piece of wood. All these items were subject to forensic testing.

8. It appears that from the testing of the brown bottle and glass eyedropper, a mixed DNA profile from at least two individuals was found. But Mr Trevitt can be excluded as having contributed to this DNA, so it is fair to say that there is nothing that connects Mr Trevitt with the bottle and dropper apart from its location within the vehicle, which, of itself, would be insufficient in the circumstances.

9. In respect of the snaplock bags of capsules within the plank, there was some DNA material found, but only on the outside of the plank of wood. That material produced a DNA profile of at least two persons, but was not inconsistent with one of them being the accused. The report suggests that there was a 1 in 7,000 likelihood of a match; it equates with approximately 50 persons in the immediate Canberra region, but could relate to other persons outside of that region as well of course.

10. It appears that the warrants were issued at about 5.15 pm on 2 October 2003 and they purported to be in force for a period of 28 days from that date. The warrants themselves, on their face, bear a number of unfortunate defects. The first, and this relates to the warrant which names this accused, states that the magistrate in question, Mr Thompson, "Being satisfied by information on oath placed before me at [recites this date], that there are reasonable grounds for suspecting that there within ..." then it goes on to name the accused, then without any further preamble lists amphetamine, utensils et cetera believed to be connected with an offence under the Drugs of Dependence Act 1989 (ACT), namely possessing a drug of dependence.

11. Amphetamine obviously does fill the description of a drug of dependence and so will be connected with such an offence, but there are no introductory words which tell you what it is that is to be connected between the person and the alleged drug.

12. This contrasts with a similar case: R v Stankovich [2004] ACTSC 93; (2004) 149 A Crim R 88, where, at least, the warrant or the warrants in question, went on to say that "there is situated on" - in that case it was Thomas Stankovich - "a thing or things of a particular kind. Namely", then a list of items that might be so found.

13. This warrant does not do that. Now, that may not, of itself, be something which might render the warrant invalid, but it is certainly something that ought to have been noticed on even the most cursory inspection of the warrant.

14. The authorising part of the warrant is further cause for concern. In the case of the warrant referring to Mr Trevitt, it goes on, "to authorise the person or persons named in the warrant to enter any place believed on reasonable grounds to be occupied by the said person, at any time of the day or night". It does not specify the place to be entered, but that could no doubt have been done, "and to search the said person".

15. One section of the warrant is consistent with the fact that it is a warrant for the search of a person. But the introductory words are only explicable on the basis that it is intended to authorise the search of a place. The warrant suffers from those defects.

16. The second warrant, which starts out optimistically enough, by saying that the Magistrate, Mr Thompson, "is satisfied that there are reasonable grounds for suspecting that there within white Holden Statesmen, YIM171 et cetera. Again here it would have been easy to go on and say, "May be found", or, "is believed to be located", or, "is located", and they were such introductory words he used. But again it sails straight into talking about amphetamines/methamphetamines et cetera without any such words.

17. This warrant, however, suffers from the further improbability that it authorises the persons named:

"To enter any place within the Australian Capital Territory which the person named in this warrant, believes on reasonable grounds to be occupied by the said person specified above".

18. Yet the only thing that can be referred to as the, "person specified above" is the white Holden Statesmen, which is thereby given personal status. I assume it does not refer to the magistrate. However the authorising portion of the warrant is designed to be appropriate for the search of a person, not a search of a place, as it specifies the search of "clothing worn by the person, the property under the power or control of the person", et cetera.

19. As Mr Lundy concedes, consistently with the ruling that Spender J gave on 1 October 2004 in Stankovich, it is impossible to do otherwise than conclude that each of these warrants is invalid in form, and in effect, do not authorise the search or searches which were undertaken pursuant to them.

20. That does not matter so much in respect of the search of Mr Trevitt himself, because it appears that nothing was found of any incriminating nature as a result of that search. Rather, it was the search of the vehicle, which revealed things which are obviously incriminating, albeit not necessarily of this accused.

21. Spender J in Stankovich had ruled that evidence which had been located as a result of a search, ought not to be admitted into evidence, and that the defective warrants which had been used to authorise such a search were insufficient for the purpose. His Honour also commented, and I think I can no more than agree, that it is difficult to believe that a magistrate would issue a warrant so expressed, and authorise the conduct which the warrant purports to authorise. That applies to each of the various respects I have mentioned.

22. Hopefully since that ruling, both those who draft such warrants and those that authorise their execution, have paid more attention to the proper form of them, so that I do not need, I think, to do more than say that I agree with Spender J's comments concerning the warrant in that case, which is relevantly indistinguishable from the warrants in this case. If it is necessary to do so, I express my agreement with the views his Honour expressed leading to the invalidity of the warrants.

23. Of course the invalidity of the warrants does not end the matter. Such evidence may nevertheless be admitted, pursuant to the provisions of section 138 of the Evidence Act 1995 (Cth). That, however, requires that the court, in exercising discretion to admit the evidence, has regard to the provisions of that section. There are a number of matters concerning that section which are of importance.

24. The first is to note that whatever may have been the position at Common Law under the High Court ruling in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, the discretion to exclude improperly or illegally obtained evidence, that is, evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law. The Evidence Act now governs that situation. In this case, I interpolate, this evidence was clearly obtained in contravention of an Australian law, as is conceded. The Evidence Act provides that it is not to be admitted. Not that it may not be admitted, but 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.

25. And the matters that may be taken into account under subs (1) are the probative value of the evidence; the importance of the evidence in the proceeding; the nature of the relevant offence; the gravity of the impropriety or contravention; whether it was deliberate or reckless; and whether the impropriety of the contravention was contrary to, or inconsistent with the right of the person, as recognised by the International Covenant on Civil and Political Rights. This covenant is, I interpolate, now consistent with the Human Rights Act 2004 (ACT), albeit that that Act was not in force at the relevant time.

26. In any event, that is not, in itself, inconsistent with the current provisions of that Act, whether any other proceeding is taken in relation to the impropriety or contravention, and I would have thought none would be taken in this case. The difficulty of obtaining the evidence without impropriety or contravention is, I think, fairly common ground in this case. That evidence could have been obtained without a contravention of an Australian law, had the warrant been appropriately drafted.

27. Now, looking at the relevant parts of those provisions, under subs (3) it is apparent that this warrant was invalid. It was a serious and egregious oversight, such that no one who had read the warrant sensibly could have regarded it as conforming to the provisions of the Drugs of Dependence Act 1989 (ACT), s 187.

28. However it is apparent that the contravention was not deliberate, nor indeed would I characterise it as reckless. It was simply an egregious oversight. Nobody, it would seem, who drafted or signed the warrant had read it, or at least nobody had read the dispositive parts of it, the operative parts of it. No doubt the name of the accused and the identification of the vehicle was done with care, but the rest of it was not.

29. There was no emergency that required the warrant to be issued in that form. At least, there is certainly no evidence that it was impossible or not practicable to have drafted the warrant in a correct form or for the magistrate sighting it to have sent it back for redrafting. To that extent of course, the invalidity of the warrant was encouraged by the magistrate signing it without reading it, or at least without having read it sufficiently carefully to note the fact that it was not in a form appropriate for execution pursuant to the Drugs of Dependence Act.

30. However, it seems to me the major problem here is that the probative value of the evidence obtained was not great. The probative value of the accused being in control of the vehicle was some evidence that he was in control of the contents. However, the fact that he was, so I am told, named as an additional driver of the vehicle which was a hire vehicle, does not lead to that conclusion being available with any great degree of strength.

31. It would have been better had the items found yielded some connection with the accused, or if he had conceded, when put under questioning, some connection with the items found in the vehicle. He did not concede any connection and the only connection found was that which I have mentioned earlier.

32. In relation to the brown glass bottle, even considering it separately from the plank, there is simply nothing that would connect the accused with it. It would be very difficult to ask any one to draw the conclusion that he had any knowledge of or connection with that bottle, absent any admission or absent any finding in respect of it, if there is something to connect him with it. It could have been placed there by anybody, whether before this hiring of the vehicle or during it. But that is certainly not sufficient to have been probative of the offence that is alleged against the accused in respect of it. So the probative value of that particular piece of evidence is very slight indeed.

33. I have no doubt about the importance of the evidence in the proceeding. Mr Lundy concedes that, without the admission of the evidence of the items which were found, that is the search and fruits of it, there is little in the case that would justify putting it to a jury.

34. Before going to the question of the plank, I will state that the offence is a serious one. The gravity of the impropriety or contravention, however is ameliorated by the fact that it was not deliberate, albeit that it led to conduct which would have been regarded, absent the warrant, as inconsistent with the rights of a person as recognised by the International Covenant on Civil and Political Rights.

35. I turn now to the plank of wood that was found. Firstly, the plank was so constructed or so treated, that it appeared to be simply a plank of wood, containing nothing. However on closer inspection it was observed that there was a part of it which could be separated from the main part of the plank. When separated it revealed a hollowed out interior, containing obviously incriminating items; namely, the drugs referred to in the first three counts. The only connection that can be said to exist between the accused and that item, apart from its presence in the vehicle which I have referred to in relation to the first item, is the finding of DNA material, some of which is not inconsistent with that of the accused.

36. That leaves a 1 in 7000 likelihood of a match according to the analyst. That, of course, is subject to being tested; it may or may not be confirmed. Nevertheless, that is the prima face evidence which the prosecution is entitled to have taken into account.

37. A 1 in 7000 likelihood of a match implies that there are approximately 50 persons in the Canberra region who might be expected to return a similar DNA profile. That would be insufficient to exclude the possibility that a person other than the accused was the person, the second person or third person, or however many persons there were, who had handled this piece of wood on its exterior.

38. The fact that the accused had handled the piece of wood in question, albeit he does deny having seen it previously, would not of itself be sufficient to connect him with the contents of it. But it would certainly be a suspicious circumstance which the prosecution could rely upon.

39. However its probative value is no greater than the brown bottle; it is not, of itself, conclusive. Other evidence would need to be taken into account to have that effect. It appears there was little or nothing which could be added to that evidence.

40. Those circumstances, albeit that the evidence is not without any probative value, mean that its probative value is not great. This is despite the fact that its importance in the proceedings is great.

41. In those circumstances, given objection is taken to the omission of the evidence of this search, and given that the warrants are undoubtedly invalid, the search was therefore not authorised by them. Having regard to the other matters I have referred to already, it seems to me the evidence must be excluded in the exercise of the court's discretion. I am not satisfied that it ought to included. That is the test which I am required by section 138 of the Evidence Act to apply.

42. I should say though, that in coming to that determination, I am not finding that it is necessary to exclude the evidence in order to deter future illegality because I am certain that would have already taken place after Spender J's decision. It is not a case in which there would be any disciplinary proceedings against anybody. Had the warrant been valid, there is nothing in the search or seizure that has been placed before me that would have made it unfair to have admitted that evidence. Had it been that the evidence located was of greater probative value, it is entirely possible that the result would be otherwise. But given the unlikelihood that it would be conclusive against the accused, it seems to be the better course to simply reject the evidence, or to indicate that I would have directed in the trial to reject it by ruling accordingly.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: Office of the Director of Public Prosecutions ACT