On 13 and 14 September 2018, the Court took evidence on the voir dire from the former Detective Senior Constable Matthews about the seizing of three pages of a notebook upon which there was handwriting. It also heard submissions from the Crown and the Accused about the admissibility of a single page photocopy of the three original pages.
On Monday 17 September 2018, the Court having decided that the Crown had persuaded it that the document ought to be admitted, made an order to that effect. It indicated the principal conclusions which led to that result, and informed the parties that detailed reasons would be provided in due course.
These are those reasons.
[2]
Three Pages of a Notebook are Found and Seized
On 30 July 1985, the then Det. Matthews, together with other police, attended at the Accused's home at 25 Tallowood Crescent, Casula ("the premises"). He initially waited outside the property until after members of the Australian Federal Police ("AFP"), accompanied by some officers of the NSW Police, entered the property in the execution of a Writ of Possession ("the Writ") which had been issued by the Family Court of Australia on 25 July 1985. Those officers took possession of the premises.
The contents of that Writ which was addressed to all Officers of the AFP and the NSW Police Force included the following:
"YOU ARE HEREBY DIRECTED for the purpose of giving effect to the said order and with such assistance as you may require and if necessary by force to enter the land described, being the land contained in Certificate of Title Vol 12140, folio 43, and cause the wife, ANDREW MARGARET BLANCHARD to have vacant possession of it, and to cause the husband LEONARD JOHN WARWICK to vacate the said land and premises."
That Writ is to be found at p.518 of Exh 2, the Family Court file between the Accused and his former wife, Ms Blanchard.
The Accused was present when the members of the AFP and some members of the NSW Police entered the premises and took possession of them. He was removed from the house and then the property.
Det. Matthews entered the premises after possession had been taken pursuant to the Writ, and went into the kitchen. His evidence, which for the purposes of this question of admissibility was unchallenged, was that he searched in some cupboards and drawers in the kitchen. He then looked on the bench top of the kitchen and saw three pieces of paper which had handwriting on them, recording addresses and telephone numbers on the Central Coast of NSW.
Det. Matthews thought the notes were potentially relevant to Event 7, the explosion at the Kingdom Hall, which had occurred on 20 July 1985, a few days before the execution of the Writ.
He then consulted with a fellow detective, Kevin Woods, and showed him the documents. Det. Matthews formed the view that the documents were relevant to the investigation and seized them.
The three pages from the notebook were taken back to the Liverpool Police Station by Det. Matthews where they were handed to Det. Woods.
Det. Matthews described the documents as "three small documents which to me were pages of a small notebook". He noted that there were two addresses on each of the three pages of the notebook.
[3]
Three Pages of a Notebook become a Single Photocopy Page
Back at the Liverpool Police Station before handing the originals to Det. Woods, Det. Matthews decided to copy the documents. When he did so, he put the three separate pages side by side and copied them onto a single sheet of paper.
The seizure of the three pages was recorded on a Running Sheet compiled on 30 July 1985, to which the original documents were attached. The Running Sheet also recorded the contents of the notes which were found in terms identical to the writing on the photocopy document, which is sought to be tendered. That Running Sheet was identified as MFI OOOO and became Exh VD2 on the voir dire. The Crown had previously indicated that it proposed to tender MFI OOOO when its author, Det. Woods, was called as a witness.
[4]
Accused's Submissions
The Accused objected to the tender of the single page photocopy document on three grounds. First, he submitted that the contents of the document was irrelevant to any issue in the trial; secondly, he submitted that the document was not a copy document within the meaning of s 48 of the Evidence Act 1995 but, rather, was a compilation of three original documents which are not being tendered; thirdly, he submitted that the original pages of the notebook (of which this document is a copy) were seized unlawfully by the NSW Police and that such unlawful (or perhaps improper) seizure meant that the copy document ought not be admitted.
[5]
Crown's Submissions
The Crown contested each of these grounds. Further, it submitted that even if there was some impropriety or unlawfulness surrounding the seizure, then the provisions of s 138 of the Evidence Act permit the admission of the document. This is because, they submitted, the desirability of admitting that evidence outweighs the undesirability of not admitting the evidence obtained in the way it was.
[6]
Relevance
It is convenient to deal with the relevance of the document first.
It is the Crown case that the Accused bore animosity towards members of the Lurnea congregation of the Jehovah's Witness who used the Kingdom Hall at Casula. The Crown's case is that such animosity derived from the assistance which members of that congregation gave to the former wife of the Accused and his daughter, to leave Sydney together with Ms Blanchard's sister and move to an undisclosed address on the mid-North Coast of NSW.
The Crown's case is that the Accused made a number of phone calls to members of the congregation in an unsuccessful attempt to ascertain the location and address to which Ms Blanchard and their daughter had gone. The Crown submitted that the notes were written by the Accused and that they recorded various attempts he had made to establish the whereabouts of his former wife and child by telephoning members of the Jehovah's Witnesses.
In that way, the Crown says that the existence of these notes corroborated other evidence that the Accused was making enquiries trying to establish the whereabouts of his former wife and daughter, and that he was aware that members of the Lurnea congregation had assisted her to move somewhere north of Sydney.
The Accused submitted that there was no evidence to connect the individuals and addresses on the three pages of notes with the whereabouts of his former wife, or the issues identified by the Crown. Further, the Accused submitted that in the absence of being shown to have knowledge that the members of the congregation helped his wife, the notes could not be relevant to any action or proposed action of his.
In reply, the Crown pointed to evidence of Ms Redfern, an earlier witness who was a member of the Jehovah's Witness Lurnea congregation, who described a conversation with a male (whom the Crown says was the Accused) during which she said words to the effect that she thought that the Accused's former wife was in the Central Coast area. The Crown submitted Ms Redfern's evidence showed two matters: first, that it could be inferred that the Accused knew of the role of members of the Jehovah's Witness congregation in helping his wife; and, secondly, as explaining the addresses on the Central Coast noted on the pages that were seized. In that way, the Crown submitted that the document is relevant.
I am satisfied that within the meaning of s 55 of the Evidence Act that these copy documents would be capable of rationally affecting the assessment of the probability of establishing a fact in issue. Namely, the attitude of the Accused to the members of the Jehovah's Witness congregation established by the knowledge of the Accused of, and his concern about, the fact that his former wife had moved with the assistance of members of the Lurnea congregation to the mid-North Coast and that he was unable to ascertain her address so as to exercise his rights of access to his daughter.
[7]
Section 48 of the Evidence Act
The second basis upon which the Accused objected to the admissibility of the document was that it was not a copy document within the meaning of s 48 of the Evidence Act, and so was not admissible as the Crown contended.
Section 51 of the Evidence Act abolished the best evidence rule that existed at common law which would have obliged the Crown to tender the original documents. It brought into being a new regime for the proof of documents.
Section 48, which is a part of that regime, makes it plain that evidence of the contents of a document can be adduced by tendering a copy of the document in question, subject to compliance with the provisions of s 48(1)(b). That section also makes it plain that adducing evidence of the contents of a document is permissible regardless of whether or not the original document is available to the party tendering the copy of the document in question: s 48(2).
Section 48(1)(b) permits a party to adduce evidence of the contents of a document by tendering a document that is, or purports to be, a copy of the document in question and which has been produced, relevantly here, by a photocopier.
Consideration of the terms of s 48, which are expressed to refer to a document in the singular form, is informed by the provisions of s 8(b) of the Interpretation Act 1987. That provision provides that where there is a reference to a word or expression in any Act in the singular form that includes a reference to the plural form.
There is nothing in the terms of s 48 of the Evidence Act which would mean that where a party copied more than one document onto a single page, or alternatively copied a two page document onto the front and back of a single sheet, or in some other way copied the contents of a document in question so that it did not exactly replicate the original document, such reproduced copy would not fall within the terms of that section.
There are many examples of how a copy document may differ from an original, but still faithfully reproduce the contents of it. A copy document could be enlarged by use of a photocopier; a document that was on two sides of a page could be copied so that each side of the document is reproduced onto a separate page; the original of document may be on coloured paper and a copy of the document may be produced on a white sheet of paper or a different coloured sheet of paper, or; an original document may contain coloured printing, but the copy document may be printed in black and white. None of these examples mean that the contents of the document have been copied so as to become inadmissible under s 48.
That this approach is appropriate is consistent with the terms of s 48(4) of the Evidence Act which provides that an extract from, or summary of, a document in question is admissible if the original document is not available to a party. As well, oral evidence of the contents of the document is admissible.
The effect of s 48 is to give a broad approach to the question of proof of the contents of an original document. There is no reason to conclude, and I do not conclude, that copying the original three pages of the note book onto a single sheet of paper means that the provisions of s 48 cannot apply.
In my view they do. This ground has not been established as a reason to reject the single page photocopy document.
[8]
Illegality of Seizure
The final ground of objection was that the document was seized in circumstances which were unlawful or improper.
On the morning that he attended at the premises, Det. Matthews was present at Liverpool Police Station for a briefing on what was to occur. It was his belief that the premises were owned both by the Accused and his former wife, and that he was told that there was a Writ of Execution to be executed by the AFP. So far as he was concerned, he attended the premises at Casula both to execute the Writ of Possession and to search the premises after the Federal Police took possession.
Whilst he was aware that there was no search warrant, he had been told that it was permissible for him and his fellow officers to enter the house and the premises and to search it.
Ms Blanchard had given permission to the AFP and the NSW Police to search the house when they took possession pursuant to a Writ of Possession.
Det. Matthew's understanding was expressed in this way:
"Q. Did you ask the question of anyone 'do we have his [the Accused] to search his possessions?
A. I had - as I understood it, I had permission to search the house.
Q. How did you understand that sir?
A. That he had been evicted and we were free to go into those premises without a search warrant and make that search.
Q. But taking possession of real estate doesn't give it sir, without being directed to do so, authority to deal with his possessions, does it?
A. I beg your pardon.
Q. I withdraw the question; it's clumsy. So was it your direction on that day to search and take possession of any objects that you considered important for your investigation?
A. Yes.
…
Q. Did it occur to you, you needed a search warrant for someone else's property?
A. That did not occur to me at all. I was instructed - I would have been instructed, 'We are searching these premises'. We - I wouldn't have gone in there illegally if I knew that was the case. I wouldn't do that. I went in. I searched the premises legally. … If it was illegal, I wouldn't do it.
Q. Did it occur to you that you should've asked for Mr Warwick's permission?
A. It didn't occur to me at all.
Q. Did it occur to you, you should have obtained a search warrant?
A. Look - no, no, no, no, not at all."
The cross-examination did not challenge the integrity of Det. Matthews personally. It was not put to him that he had any improper motive nor that he knew that he was in breach of the law and deliberately seized the documents.
In his submissions, the Accused contended that there was no lawful authority for Police, who may have been on the premises for the purpose of executing the Writ, to have undertaken a search of the house and the Accused's belongings. In the case of Det. Matthews, the Accused emphasised that his presence in the premises was at a time after the Writ had been executed and that, accordingly, he could not have been in the property in pursuance of that Writ.
In those circumstances, the Accused submitted that there was no lawful authority for Det. Matthews to have seized the notes and, accordingly, their seizure was unlawful.
It was inherent in these submissions that Det. Matthews did not have the permission of the Accused to be present on the property and to search it, a fact which Det. Matthews conceded, and that the evidence of Ms Blanchard, that she had given permission to the NSW Police to search the premises was an inadequate foundation for what Det. Matthews did.
The evidence of Ms Blanchard, which was confirmed in cross-examination, was that she gave the NSW Police permission to search the premises when approached by them a few days before the Writ was executed. Her permission came into effect, according to the tenor of her evidence, once the Writ had been executed.
It was plainly the case for the Accused, as put to Ms Blanchard in cross‑examination, that she had given such permission.
It is also appropriate to note from the evidence of Det. Matthews that the three pages of the notebook that were seized were found on top of the kitchen bench and were not concealed, nor were they discovered during a search of the premises. Rather, they would have been visible to any police officer who entered that part of the house.
It seems clear to me that it was open to Ms Blanchard, once the Writ was executed, as the person in lawful possession of the property, to give permission to officers of the NSW Police to search the property. She did in fact give that permission. Accordingly, Det. Matthews, as a member of the NSW Police Force, had the permission of Ms Blanchard to enter the property and conduct the search.
In fact, Det. Matthews did not need to conduct any search to identify the notebook pages because they were visible upon entry to that part of the property. However, I am well satisfied that his entry into the property was neither illegal nor improper.
Accordingly, no occasion arises to consider the doctrine of chance discovery by which a police officer may be entitled to seize evidence found on a property which fell outside the authority by which they came to be there (usually a search warrant).
However, if I be wrong in my conclusion that Ms Blanchard was able to give permission to officers of the NSW Police Force to search the property, I can turn to the fact that Det. Matthews believed that he was authorised to enter the property. He believed he was authorised to do so either because of the Writ or, alternatively, because of the permission given by Ms Blanchard. He also formed the opinion, assisted by discussions with Det. Woods, that the three pages of the notebook which he observed on the kitchen bench provided relevant information for the investigation of the Kingdom Hall bombing.
In those circumstances, any misunderstanding on the part of Det. Matthews with respect to the lawfulness of his presence on the property was of a very low order.
It becomes a question under s 138 of the Evidence Act whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, having regard to the way in which the evidence was obtained.
Although the evidence contained in the photocopy document is not essential to the proof of the Crown case, and is but one circumstance amongst many other circumstances upon which the Crown relies to prove its case against the Accused, in my view it carries the capacity to have probative value in the proof of the Crown case. The Accused was in no way unfairly treated by the presence of Det. Matthews in the premises given that the Writ allowed members of both the AFP and the NSW Police to be present, and if there was any impropriety associated with obtaining the document, that impropriety is outweighed by the desirability of admitting the evidence as part of the Crown case.
If it was necessary to consider the application within the discretion which the Court holds under s 138, I would have been minded to exercise the discretion such as to admit the document.
In those circumstances I concluded that, for the reasons expressed, the document should be admitted.
The document was accordingly admitted and marked Exh 167.
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Decision last updated: 06 March 2019