[2021] ACTSC 50

CRIMINAL LAW - EVIDENCE - Admissibility - Pre-trial application - Evidence obtained pursuant to search warrant - Suspicion relating to the commission of multiple offences - Whether applicant acting on unreasonable but genuinely held suspicion amounts to an impropriety - Whether evidence was obtained in consequence of an impropriety - Whether discretion to exclude should be exercised

Crimes Act 1900 (ACT) ss 194, 242

Evidence Act 2011 (ACT) s 138, 142

Australian Securities and Investments Commission (ASIC) v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327

Briginshaw v Briginshaw (1938) 60 CLR 335

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 333 FLR 352

R v Cornwell [2003] NSWSC 97; 57 NSWLR 82

R v Dalley [2002] NSWCCA 284; 132 A Crim R 169

R v Petroulias (No 8) [2007] NSWSC 82; 175 A Crim R 417

R v Vincent [2018] ACTSC 347

Ridgeway v The Queen (1995) 184 CLR 19

Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612

Smethurst v Commissioner of Police [2020] HCA 14; 376 ALR 575

Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020)

1. Ms Young (the applicant) and Mr Vincent face trial in the week commencing 12 April 2021.

2. Pursuant to s 138 of the Evidence Act 2011 (ACT) (Evidence Act), the applicant seeks to exclude evidence that stolen property was found at her residence on 27 March 2020, when a search warrant was executed. Mr Vincent supports the application.

3. The applicant faces nine charges that, between 15 February and 28 March 2020, she was knowingly concerned in the receipt of stolen property, contrary to s 313 of the Criminal Code 2002 (ACT) (Criminal Code) (by virtue of s 45 of the Criminal Code).

4. Mr Vincent faces nine charges of dishonestly receiving stolen property, contrary to s 313 of the Criminal Code. If convicted, he will be in breach of a good behaviour order imposed by Elkaim J on 12 December 2018: R v Vincent [2018] ACTSC 347.

5. In addition, Mr Vincent is charged with one count of unlawfully possessing stolen property, contrary to s 324 of the Criminal Code.

6. The Crown case is that, between 15 February and 25 March 2020, various premises in the ACT were the subject of burglaries and thefts.

7. At least until 26 March 2020, Mr Vincent resided with the applicant and F at a residence owned by the applicant. F was in a relationship with Mr Vincent.

8. On 27 March 2020, Detective Sergeant Giles obtained a warrant to search the applicant's residence for specified items, including items that had been stolen on 12 January 2020, other stolen property, and methylamphetamines and drug paraphernalia.

9. When the residence was searched, police located items that had been stolen on 12 January 2020 and many items that had been stolen during the February/March burglaries. They did not locate methylamphetamines or drug paraphernalia.

10. Section 242 of the Crimes Act 1900 (ACT) (Crimes Act) provides that, when applying for a warrant, a person shall not make a statement that the person knows to be false or misleading in a material particular. The penalty for committing an offence against s 242 is two years' imprisonment.

11. The applicant did not pursue an initial suggestion that Detective Sergeant Giles had contravened s 242 of the Crimes Act by stating that he suspected that the applicant was trafficking in illicit drugs when he did not have that suspicion. The suggestion that Detective Sergeant Giles had lied in that way involved a grave allegation and invoked the principle in Briginshaw v Briginshaw (1938) 60 CLR 335 (Briginshaw): R v Petroulias (No 8) [2007] NSWSC 82; 175 A Crim R 417 (Petroulias (No 8)) at [18]. The applicant conceded that she could not establish that, when applying for the search warrant, Detective Sergeant Giles had lied about the suspicions that he held.

12. Consequently, the issues on the application were:

1. Was there an "impropriety" by Detective Sergeant Giles when he applied for the warrant because he relied on an unreasonable suspicion that the applicant was trafficking in a controlled drug other than cannabis?
2. If so, was the evidence of stolen property obtained "in consequence of" the impropriety within the meaning of s 138 of the Evidence Act?
3. If so, does the desirability of admitting the evidence outweigh the undesirability of admitting evidence obtained in the way in which the evidence was obtained?

13. In applying for the warrant, Detective Sergeant Giles stated on oath that there were reasonable grounds for suspecting that:

(a) at the premises, there were 20 gas bottles, stolen power tools, stolen trailers, methylamphetamines and associated drug paraphernalia, electronic devices including mobile telephones, and closed-circuit television footage and associated storage media; and

(b) those items would provide evidence as to commission of offences that:

(i) on 12 January 2020, Mr Vincent and others had stolen 20 gas bottles from Woolworths Petrol Wanniassa;

(ii) the applicant was trafficking in a controlled drug other than cannabis (specifically, to Mr Vincent); and

Information and evidence supporting suspicion about the applicant receiving stolen property

14. In the affidavit supporting the application for the March search warrant (as supplemented by evidence to the Court), Detective Sergeant Giles stated that:

(a) On 24 December 2019, police (including himself) executed a search warrant (relating to Mr Vincent and stolen property) at the applicant's residence. During the search, police seized property (with an estimated value exceeding $60,000). Mr Vincent was charged in relation to the seized property, including for the offence that he had received stolen property.

(b) The applicant denied knowing about the stolen property but conceded that it had been impossible for her not to notice the property in her backyard, garage, and beneath her residence.

In evidence on the application, Detective Sergeant Giles elaborated on the statements in his affidavit. He said that three truckloads of property (each approximately 4 metres x 3 metres) had been seized from the back deck, backyard, sheds, garage, and under the residence, including bicycles and building materials. The applicant had told him that she had not noticed the property and had no knowledge of it. He had considered that assertion to be "untenable", had said so, had advised the applicant that she needed to take more responsibility for the use of her premises, and had said that, if the police returned and found a similar situation, it was likely that she would face charges.

(c) On 19 March 2020, a community contact told police that Mr Vincent was responsible for stealing many vehicles and had recently been driving a stolen Mitsubishi Triton.

(d) A stolen trailer was recovered a short distance from the applicant's residence.

(e) On 26 March 2020, police attended a disturbance at the applicant's residence and were told by the applicant and F that Mr Vincent had been evicted from the house after assaulting other occupants. The applicant declined to allow police to look for Mr Vincent in the garage. Detective Sergeant Giles suspected that she had declined to allow access to the garage because she was involved with stolen property that was located inside the garage.

In evidence on the application, Detective Sergeant Giles elaborated on the statements in his affidavit. He said that, on the morning of 26 March, he and other police had attended the applicant's residence at her request. The applicant told them that she had finally ordered Mr Vincent to leave the premises. He understood that she had done so because Mr Vincent had been violent towards F. When speaking to the applicant, he was standing at the front of the property. A high fence obscured his view into the backyard. He asked to look in the backyard and the applicant denied the request. When asking for permission to search the premises, he may have mentioned that he wanted to look in the shed for stolen property. He may have said that he wanted to look for Mr Vincent. The police were looking both for Mr Vincent and for stolen property.

Other witnesses provided evidence to the effect that Detective Sergeant Giles had asked to look in the backyard for stolen property, rather than for Mr Vincent.

(f) Mr Vincent had a very lengthy criminal history, including for offences of receiving stolen property and other offences of dishonesty

Information and evidence supporting suspicion that Mr Vincent committed theft on 12 January 2020

(g) A gold Mitsubishi Magna was given by the registered owner to Mr Vincent.

(h) On 12 January 2020, a gold Mitsubishi Magna bearing similar (but false) number plates arrived at the Woolworths Petrol Wanniassa at about the time that 20 gas bottles were stolen from that location.

(i) A very similar vehicle was seen in the driveway of the applicant's premises on 24 December 2019.

(j) On 11 March 2020, following an attempted traffic stop, police pursued a gold Mitsubishi Magna. The police abandoned the chase. Shortly thereafter, police recovered the gold Mitsubishi Magna that had been given to Mr Vincent from a location very close to the applicant's residence. The vehicle bore false number plates.

Information and evidence supporting suspicion that the applicant was involved in supplying illicit substances to Mr Vincent in return for stolen property

(k) On 16 January 2020, an anonymous community contact informed Crimestoppers that there was stolen property at the premises, there were drugs in the house "including weed and ice" (cannabis and methylamphetamines) and "Meg" (the applicant) was "behind it all".

(l) On 7 February 2020, an anonymous community contact informed Crimestoppers that there was stolen property at the house and drugs on the premises "which has been reported numerous times".

(m) Similar information was provided on 19 and 26 February 2020.

(n) Mr Vincent's criminal history included many convictions for possessing a drug of dependence. He was subject to an alert for being an amphetamine user.

15. In evidence on the application, Detective Sergeant Giles said that, in his experience, drugs and stolen property often go hand in hand and are exchanged.

16. The evidence on the application included the four anonymous information reports on which Detective Sergeant Giles had relied when applying for the search warrant. The reports of 7, 19 and 26 February stated that the reporter had previously lodged a report or reports. Consequently, it is possible that each report was made by the same person.

17. On the other hand, Detective Sergeant Giles did not see three other reports that were produced in evidence (dated 22 October 2019, and 24 and 27 January 2020), made by anonymous reporters who stated that they had not previously made a report. The report of 22 October 2019 particularised the reporter's direct observations consistent with drug dealing at the residence.

18. When executing the search warrant on 27 March 2020, in each of the bedrooms, the garage, and the backyard of the residence, police located numerous items stolen during the thefts in February/March 2020 (including power tools, general tools and building and plumbing materials). They also located a large quantity of other tools, building and plumbing materials, electronic items, bicycles, wheels, and tyres. Some property was found under the bed in the applicant's bedroom.

19. The police did not locate illicit drugs or drug paraphernalia.

20. The applicant stated that Mr Vincent had brought all the items to the residence. She denied knowledge of the property. Detective Sergeant Giles observed that they "had had the conversation" previously, and he could not accept she was unaware of the property. She said that the property in the shed belonged to Mr Vincent. At one point, she commented that it was clearly all stolen. When asked why she had not reported the items, she said that Mr Vincent had threatened her and F.

21. Police conveyed several truckloads of property from the residence. In addition, builders came and removed property that belonged to them.

22. Detective Sergeant Giles gave evidence in a defensive manner. He was cross‑examined about a possible motive to lie and "harass" the applicant following the termination of a relationship with a person related to the applicant, but the cross‑examination yielded nothing of substance, and the matter was not pursued in submissions.

23. Ultimately, nothing turned on Detective Sergeant Giles' demeanour. The applicant did not pursue an argument that he had lied about the suspicions that he held; rather, it contended that the suspicions were not reasonably founded.

24. Section 194 of the Crimes Act provides that an issuing officer may issue a premises warrant if:

satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

25. The applicant said that the stolen items were obtained in consequence of an impropriety, in that Detective Sergeant Giles had no reasonable basis to suspect that the applicant was trafficking in a controlled drug other than cannabis.

26. Section 138 of the Evidence Act states:

1. Exclusion of improperly or illegally obtained evidence

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

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

must not 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 must take into account -

(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.

27. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111, the Court said:

[In] construing and applying [statutes that enable entry to property without the consent of the occupant], it needs to be kept in mind that they authorise 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.

28. In Smethurst v Commissioner of Police [2020] HCA 14; 94 ALJR 502, the applicant argued that a search warrant did not satisfactorily state the offence to which it related. At [25], Kiefel CJ, Bell and Keane JJ referred to the legislature's concern to balance the need for an effective criminal justice system against the need to protect individuals from arbitrary invasion of their privacy, noting:

It may be accepted that the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes. Nevertheless it remains a concern of the legislature ... to provide a measure of protection to persons affected by a warrant. It does so in large part by ensuring that the object of the warrant is identified by reference to a particular offence and that the limits of the authority to search may thereby be discerned. The court's insistence on strict compliance with the statutory conditions for a warrant gives effect to this legislative purpose.

29. These were cases in which there was a challenge to the validity of a search warrant. The present application did not challenge the decision of the issuing officer or the contents of warrant itself. The challenge was to the process by which the warrant was issued.

30. In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 333 FLR 352, at [54], Basten JA observed that it was open to an accused person to challenge the admissibility of evidence under s 138 of the Evidence Act 1995 (NSW) on the basis that there had been an impropriety by an applicant for a search warrant or in the execution of the warrant.

31. In Petroulias (No 8), Johnson J dealt with an objection to the tender of evidence on the ground that the evidence was improperly obtained within the meaning of s 138 of the Evidence Act 1995 (Cth).

32. In this case, the parties accepted that the applicant could rely on s 138 of the Evidence Act to challenge the admission of evidence that was the fruit of a search warrant that was said to have been obtained improperly.

33. The onus of establishing "impropriety" for the purpose of a s 138 objection falls on the applicant: Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 (Robinson) at [33] and [106]. In determining whether there has been an impropriety, the Briginshaw principles apply: s 142(1)(a) and (2)(b) of the Evidence Act, Petroulias (No 8) at [17]-[18].

34. The Evidence Act does not define "impropriety". In Robinson, after referring to the principles collected in Ridgeway v The Queen (1995) 184 CLR 19, at [23], Basten JA (with whom Barr J agreed) said:

It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Second, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Third, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence ...

35. In Petroulias (No 8) at [19], Johnston J cited that passage with approval.

36. Examples of circumstances that have been found to amount to an "impropriety" are to be found in Uniform Evidence Law (Thompson Routers, 15th edition, 2020) by Stephen Odgers SC at 1316-1317. Broadly, they include deception or factual misstatement, or breach of an established policy or protocol.

37. I accept the applicant's submission that the contents of the four anonymous information reports upon which Detective Sergeant Giles relied (which may well have emanated from the same source), Mr Vincent's criminal history of substance abuse, and Detective Sergeant Giles' experience that drug dealing and stolen property often go hand-in-hand provided very limited support for a suspicion that the applicant (as opposed to someone else who was living at her residence) was involved in trafficking drugs, or that the applicant was involved in trafficking drugs to Mr Vincent (as opposed to other people).

38. I doubt that Detective Sergeant Giles' suspicion that the applicant was trafficking a controlled drug other than cannabis to Mr Vincent could be categorised as a reasonable suspicion.

39. However, it is unnecessary to decide that point because the actioning of an unreasonable but genuinely held suspicion does not, without more, amount to an "impropriety". It was not suggested that Detective Sergeant Giles had breached any standard expected of a police officer by deception or deliberate misstatement, or that he had contravened any policy or protocol; merely that he had jumped to an unwarranted suspicion that the applicant was trafficking drugs to Mr Vincent (a suspicion that was less than reasonable).

40. I am not satisfied that there was any relevant impropriety by Detective Sergeant Giles.

Issue 2: Was the evidence obtained in consequence of the impropriety or contravention?

41. In any event, if the actioning of an unreasonable suspicion by Detective Sergeant Giles did amount to an "impropriety", the evidence of stolen property that was the fruit of the warrant was not obtained "in consequence of" the impropriety because there was no causal connection between the impropriety and the obtaining of the evidence of stolen property: R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 at [86] applied in R v Cornwell [2003] NSWSC 97 (Cornwell) at [25] and Petroulias (No 8) at [25].

42. In Petroulias (No 8) at [144], Johnston J opined that, even if the inclusion of factually incorrect information in affidavits in support of warrants amounted to an impropriety, there was no relevant causal connection between the impropriety and the obtaining of the impugned evidence because the accurate information that was in the affidavits was more than capable of supporting the issue of the warrants. Similarly, in Cornwell at [26], Howie J found that, disregarding any misstatement, there was ample information in the affidavit to support the issuing of the warrant.

43. In this case, Detective Sergeant Giles suspected that a warrant would yield evidence of three separate offences: a theft committed by Mr Vincent on 12 January 2020, drug trafficking by the applicant, and the receipt of stolen property by the applicant. To support each suspicion, he relied upon information that was largely (although not completely) distinct from the information upon which he relied to support each other suspicion.

44. I reject the submission of the applicant and Mr Vincent that the information supporting the suspicion concerning each of the three offences cannot be "dissected".

45. As the applicant conceded on the application, there was ample information to support the suspicion concerning the theft by Mr Vincent on 12 January 2020.

46. There was also substantial information supporting the suspicion that the applicant was in receipt of stolen property. On 24 December 2019, police located truckloads of apparently stolen property at the applicant's residence. She conceded that she had noticed it. She was warned that the situation must not continue. On 26 March 2020, she declined permission for the police to search her residence for stolen property. Mr Vincent, a person with a history of property offences and who had been charged in relation to the property seized on 24 December 2019, resided at the premises until 26 March 2020. These facts were more than adequate to create in the mind of a reasonable person an apprehension that, to the applicant's knowledge, there was stolen property at her residence as at 26-27 March 2020.

Issue 3: Section 138(3) considerations relevant to the exercise of discretion

47. I am satisfied neither that there was an "impropriety" nor that the evidence of the stolen property was obtained "in consequence of" any impropriety.

48. Although it is not necessary to undertake the balancing exercise under s 138(1) of the Evidence Act, I consider that the balance favours the admission of the evidence.

(a) Section 138(3)(a) - probative value of the evidence. The applicant accepted that, as with most applications for the exclusion of improperly or illegally obtained evidence, the probative value of the challenged evidence was high.

(b) Section 138(3)(b) - importance of the evidence. The applicant accepted that, from the prosecution perspective, the evidence was important in the proceedings.

(c) Section 138(3)(c) - nature of offence and subject matter. The applicant pointed out that she was not charged as the principal offender. Nevertheless, having regard to the nature and quantity of the stolen property and the maximum of available penalty, the offence was serious.

(d) Section 138(3)(d) - gravity of impropriety. Any impropriety was not grave. It did not involve a criminal offence or breach of any policy or protocol.

(e) Section 138(3)(e) - whether impropriety deliberate or reckless. Any impropriety was reckless rather than deliberate.

(f) Section 138 (3)(f) - International Covenant on Civil and Political Rights. No submission was made concerning the ICCPR.

(g) Section 138 (3)(g) - other proceedings re impropriety. As was the case in Australian Securities and Investments Commission (ASIC) v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327, in this case there is no real likelihood that proceedings will be taken for failure to comply with s 242 of the Crimes Act, and this consideration may support the exclusion of the evidence under s 138.

(h) Section 138(3)(h) - difficulty of obtaining the evidence without impropriety. There was no difficulty in obtaining the evidence without resort to an unfounded suspicion.

49. I accept the applicant's submission that, given the ever-increasing intervention of the state in the affairs of citizens, where safeguards have been enacted, the courts should not tolerate disregard of the safeguards or readily acquiesce in the face of unlawful conduct by law enforcement agencies: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 77-8. Consequently, any s 138 balancing exercise should be informed by a relatively strict approach.

50. Nevertheless, the s 138(3) considerations strongly support admission of the evidence.

51. The application to exclude the evidence is refused. The evidence will be admitted.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.