Criminal Law - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Warrants - Search warrants - Issue and validity - Generally - Issue - Telephone application - Requirements - No warrants signed until after search - Non-disclosure of search prior to application.

Search Warrants Act 1997 (Tas), s15.

Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542, referred to.

Judgment Number: [2004] TASSC 80

1 The accused has pleaded not guilty to a charge of cultivating a controlled plant for sale contrary to the Misuse of Drugs Act 2001, s7(1)(a), and to a charge of possessing a thing intended for use in cultivating a controlled plant for sale contrary to s9(a) of that Act. The State contends that he cultivated cannabis using hydroponic equipment at two properties that were searched by police officers on 20 December 2002 - an unoccupied residence at RA137 Rutherford's Road Stowport, and his home at RA132 Rutherford's Road Stowport. Search warrants were issued in relation to each property, but the accused contends that both warrants were invalid, that police officers entered both buildings as trespassers prior to warrants being issued or sought, and that all the search evidence should be excluded pursuant to the Evidence Act 2001, s138. A jury has yet to be empanelled. I have decided to give rulings as to these matters pursuant to the Criminal Code, s361A. I have received evidence from witnesses on the voir dire and heard submissions from counsel.

2 Both warrants were sought by telephone by Constable Keiselis pursuant to the Search Warrants Act 1997, s15. That section reads as follows:

"15 - (1) A police officer may make an application to an issuing officer for a warrant by telephone, telex, facsimile or other electronic means -

(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

(2) The issuing officer may require communication by voice to the extent that is practicable in the circumstances.

(3) An application under this section is to include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.

(4) If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that -

(a) a warrant in the terms of the application should be issued urgently; or

(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant -

the issuing officer may complete and sign the same form of warrant that would be issued under section 5.

(5) If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, facsimile or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

(6) The applicant is to then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.

(7) The applicant, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, is to give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.

(8) The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and

(b) the form of warrant signed by the issuing officer is not produced in evidence -

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised."

3 The matters required to be stated in a search warrant are set out in the Search Warrants Act, s5(2), which reads as follows:

"(2) If an issuing officer issues a warrant, the issuing officer is to state in the warrant -

(a) the offence to which the warrant relates; and

(b) a description of the premises to which the warrant relates; and

(c) the kinds of evidential material that are to be searched for under the warrant; and

(d) the name of the police officer who, unless he or she inserts the name of another police officer in the warrant, is to be responsible for executing the warrant; and

(e) the period for which the warrant remains in force, which is not to be more than 28 days; and

(f) whether the warrant may be executed at any time or only during particular hours; and

(g) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c)) found at the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be -

(i) evidential material in relation to an offence to which the warrant relates; or

(ii) evidential material in relation to another offence -

if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

(h) that the warrant authorises the executing officer or a person assisting who is a police officer to conduct an ordinary search and a frisk search of any person who is at or near the premises when the warrant is executed if the executing officer or person assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession; and

(i) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c)) found, in the course of a search of a person, on or in the possession of the person that the executing officer or a person assisting who is a police officer believes on reasonable grounds to be -

(i) evidential material in relation to an offence to which the warrant relates; or

(ii) evidential material in relation to another offence -

if the executing officer or person assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence."

4 The maximum lifespan of a warrant issued pursuant to s15 is less than that of an ordinary warrant as a result of s5(4)(b), which reads as follows:

"(4) If the application for the warrant is made under section 15, this section applies as if -

(b) subsection (2)(e) referred to 48 hours rather than 28 days."

5 It is clear from the wording of s15 that the following steps must be followed once a justice of the peace decides to issue a warrant pursuant to that section:

(i) The issuing officer completes and signs a warrant in the usual form: s15(4).

(ii) The issuing officer tells the applicant of the terms of that warrant, and of the date and time of its signing: s15(5).

(iii) The applicant completes a duplicate warrant, showing the name of the issuing officer and the date and time at which that officer signed the original warrant: s15(6).

(iv) That day or the next, the applicant delivers or transmits the duplicate warrant to the issuing officer. If the warrant was issued on the basis of unsworn information, the applicant also delivers or transmits a sworn document setting out the information originally communicated to the issuing officer: s15(7).

(v) The issuing officer then attaches to the original warrant, the document or documents delivered or transmitted pursuant to s15(7): s15(8).

6 The justice of the peace who signed the warrants in this case seems to have been diligent and conscientious but, despite those qualities, in relation to each warrant, the following events occurred. Constable Keiselis telephoned the justice and provided him with sworn information that satisfied him that a warrant in the terms applied for should be issued urgently. The justice should then have signed a warrant, but there is no suggestion that he signed anything until the next day. Constable Keiselis made notes of the details to be included in a form of warrant, but did not complete a form of warrant as required by s15(6) until the next day. The search proceeded very soon after the telephone conversation with the justice, during which the decision was made to issue the warrant. On the next day, Constable Keiselis prepared a written form of application and a written form of warrant, took them to the justice, and obtained his signature. In each case, the written form of warrant specified that it would remain in force for 21 days, despite the justice not having had the power to issue a warrant that would remain in force for longer than 48 hours.

7 No original documents signed by the justice of the peace have been produced in evidence before me. The State therefore bears the onus of proving that the exercise of the power to search premises pursuant to a warrant was duly authorised in relation to each search. That onus has not been discharged. However the state of the evidence is such that I would have made a finding that no valid warrants were issued on the day of the searches, regardless of which party bore the onus of proof.

8 It is clear that neither of the searches was conducted pursuant to a valid search warrant. When a justice decides to issue a warrant pursuant to s15, no warrant exists until the justice signs one. In this case there is no evidence that that step was taken until after the searches. Each of the warrants eventually signed was bad on its face, since it specified that it would remain in force for 21 days, whereas s5(4)(b) did not permit the issue of a warrant that would remain in force for longer than 48 hours. It follows that the searches conducted in reliance upon the justice having issued warrants, or having decided to issue warrants, were conducted by searching officers who were trespassers, and that all evidence obtained during the searches was obtained "in contravention of an Australian law" for the purposes of the Evidence Act, s138.

9 The accused contends not just that the warrants were invalid on technical grounds, but also that each of the relevant buildings was searched by police officers prior to a warrant being sought in respect of that building. In relation to that submission, it is necessary for me to make findings of fact.

10 Constable Keiselis and Constable Lodge gave evidence to the effect that they went to Rutherford's Road Stowport at about 5pm in order to investigate a report by a Victorian couple that a poppy crop was being grown on land owned by them there without their permission. Near one end of the poppy crop, the two officers saw the residence at RA137 Rutherford's Road. Although there were no vehicles there, and although there was no sign of life, they went to the building to see whether there was anyone present who could provide information as to who had been growing the poppies. There was a driveway leading to the residence. I take the view that the officers had an implied licence allowing them to go to the building for the purpose of pursuing their inquiries: Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1; Munnings v Barrett [1987] TASSC 8; [1987] Tas R 80 at 86 - 87. On arrival, they noticed some cannabis in a 44 gallon drum outside the building, walked around it, and peered inside. They decided to make sure that there was no-one inside. They entered the building through a window, found cannabis being grown in it hydroponically, left the building, and returned to their vehicle, which was on the other side of a hill a few hundred yards away. Constable Keiselis phoned his sergeant, and then, at about 5.53pm, had the phone conversation with the justice during which the first decision was made to issue a search warrant. He did not tell the justice that he and his companion had entered the building, but confined the information he provided to details of the observations made from outside it. Subsequently other officers arrived. After the first building had been searched, Constable Lodge and Sergeant Singline went to the nearby home of the accused. They did so at the request of Constable Keiselis, who wanted to ensure that no-one was at home there. He had earlier telephoned the accused's partner on her mobile phone, and been told that she was at Strahan and that there was nobody home at Rutherford's Road. On arrival at the home, Detective Lodge and Sergeant Singline noticed what appeared to be light from another hydroponic system that was visible through a crack under a door. They told Detective Keiselis of that information, as a result of which he phoned the justice for the purpose of obtaining a second warrant at about 8.30pm.

11 Counsel for the accused called evidence with a view to establishing that police officers had entered the accused's home as trespassers prior to the second warrant being sought. The accused gave evidence that he received a call on his mobile phone between about 2.30pm and 3.30pm from a man from the Poppy Advisory and Control Board who told him that drugs had been found at the first building. The accused's partner, Ms Mollison, gave evidence that she had received a telephone bill showing calls having been made from her and the accused's home to her mobile phone at 1.45pm and 2.34pm, and to the accused's mobile phone at 1.53pm and 2.48pm, when they had each left for Strahan well before 1.45pm and nobody had a key to their house. A neighbour, Cheryl Hill, gave evidence that two men had called at her home before 3.20pm asking directions, that one of them had a police badge on his belt, and that before 5pm she looked across some paddocks to the accused's home and then saw that an external door of that home was open where one had never been open before, and that there were people in the yard. She said it got dark at 9pm.

12 I am not persuaded that I should make a finding that officers entered the accused's home prior to the seeking of the second warrant. Ms Hill seemed an honest witness, but she might be mistaken as to the timing of events. Even if she is right, her observations are inconsistent with police officers having been in the house as early as 1.45pm or 2.48pm. There is no reason why police officers would have used the phone in the house to make calls if they were in it illegally, especially since the evidence establishes they were carrying mobile phones. The origin of the call that the accused says he received remains something of a mystery. Mr Richardson submitted that a police videotape of the search of the accused's home showed an officer locating light switches with such ease that their locations must have been previously established, but that situation is consistent with a preliminary inspection having been made after the second phone call to the justice, and does not tend to prove an unauthorised entry took place at an earlier time.

13 However, over and above the fact that, for technical reasons, there were no valid search warrants on the day in question, there were the following improprieties. Constables Keiselis and Lodge became trespassers when they started to walk around the first building. They entered it as trespassers when they should first have obtained a search warrant. After the justice had decided to issue a warrant in relation to the first property Constable Keiselis, and possibly also Constable Lodge, participated in the making of a misleading video, which depicts them gaining entry to the building through the window as if it had not previously been entered. For the purpose of committal proceedings, each of them made a statutory declaration that contained a misleading or false statement. That of Constable Keiselis said in relation to the first building, "The warrant was executed and an extensive hydroponic network was located", thereby implying that the hydroponic network had not been located prior to the seeking of the warrant. That of Constable Lodge said that Constable Keiselis obtained a search warrant by phone from a justice of the peace; that further inquiries showed the property to be owned by the accused and his partner; that before entry was gained to the premises Constable Keiselis contacted the accused's partner and spoke to her; that forensic services were then contacted by phone; and that a short time later entry was gained and a search conducted. The statement that the phone call to the partner was made before entry was gained was false. The statutory declaration as a whole is misleading in that it suggests that entry had not been gained before the videotaped search was recorded. At the home of the accused, the attending officers had an implied licence to go to the door on business, but became trespassers by moving around outside the building looking to see what they could see.

14 I do not think there was any impropriety in Constable Keiselis not informing the justice of the peace, when he sought a warrant in respect of the first building, that he and his companion had already entered it and looked around inside it. An applicant seeking a search warrant does not have the same sort of duty of disclosure as that which would compel an applicant seeking ex parte equitable relief to disclose matters that might be relevant to the Court's discretion to refuse relief, such as not having come to equity with clean hands: Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542 at 554; [1994] FCA 1286; 124 ALR 225 at 237. The judgment of Beaumont and Whitlam JJ in that case is authority for the propositions that an applicant for a search warrant does not have a general duty of disclosure, and that a search warrant will be invalidated by an applicant providing the issuing officer with half-truths only in an exceptional situation whereby the applicant thus deceives the issuing officer and obtains the warrant by fraud. This was not such a case. It was proper for Constable Keiselis to confine the information provided to the justice of the peace to the observations that he made before entering the building. The terms of the Search Warrants Act, s5(1) permit an issuing officer to issue a warrant if he or she "is 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." All that Constable Keiselis needed to do was to provide the justice with sufficient information to satisfy the justice that there were reasonable grounds for suspecting that there was evidential material at the relevant premises. He was not required to tell the justice all that he knew or all that he had seen and done. I accept that he was acting in good faith when he applied for the first warrant.

15 The relevant provisions in the Evidence Act, s138, read as follows:

(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 -

(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."

16 Prior to knocking on the door of the first building, Constable Keiselis had noticed a smell of cannabis, observed that a window of the building had been blacked out, and had heard the sounds of several fans running within the building. It was only after knocking on the door and receiving no response that he observed that other windows were covered by fabric, that hydroponic equipment was visible through cracks, and that there was cannabis in a 44 gallon drum. I think that he had become a trespasser by the time he made those observations. It follows that the evidence he obtained before he became a trespasser was of practically no probative value, whereas the evidence obtained by him and other officers whilst they were trespassers was of enormous probative value, and it is of critical importance in the present proceedings. The alleged crimes are serious ones.

17 I am required by s138(3)(d) to consider the gravity of the impropriety or contravention of a law pursuant to which evidence was obtained. The justice of the peace acted in good faith at all times. He was diligent and conscientious. The fact that he did not issue valid warrants is no more than a technicality. When the two constables inspected the first building from the outside after having knocked on the door and got no response, they were trespassing, but their trespass was not a serious one. When they entered the building without having sought a search warrant, their trespass was a serious one in my view. Mr Ellis SC submitted that they were not experienced detectives, each having been in the Western Drug Investigation Services for only a matter of months. However each had been a constable for several years, and each should have known better than to enter the premises. To his credit, Constable Keiselis was concerned about the impropriety of entering that residence, spoke to his sergeant about it very soon afterwards, spoke to the prosecutor about it at the time of the committal, and spoke to someone from the office of the Director of Public Prosecutions about it after that. After the first conversation with the justice, all the participants in the search of the first premises believed that they had the legal right to undertake a search. They could and should have had that right. When Constable Lodge and Sergeant Singline went to the accused's home, they must have had an implied licence to go to the door and knock on it for the purpose of making inquiries. Prior to seeking a second warrant, they apparently went a little further than knocking on the door, and inspected the premises from the outside. They thereby became trespassers, but I do not regard their conduct at that point as a serious trespass. When the home was searched, all participants in the search believed that they had the right to search it. They could and should have had that right. I turn to s138(3)(e). The first search of the first building involved deliberate impropriety. I am not persuaded that any of the other searching involved deliberate or reckless impropriety, or deliberate or reckless contravention of any law. The re-enacting portrayed on the videotape did, however, involve impropriety that must have been either deliberate or reckless.

18 I am required by s138(3)(f) to consider the provisions of the International Covenant on Civil and Political Rights. The only relevant provision is Article 17, cl 1, which provides as follows:

"No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."

The search of the first building involved unlawful interference with the accused's privacy, since someone was growing cannabis indoors in total privacy. The search of his home involved unlawful interference not only with his privacy but also with his home, since someone was also growing cannabis there, indoors and in privacy. Since substantial quantities of cannabis were being grown inside each building, I do not regard the conduct of the police officers as seriously intruding upon the accused's human rights, except in relation to their entry into the first building without having first sought a search warrant.

19 As to s138(3)(g), there is no suggestion that any other proceeding might be taken in relation to the trespasses that led to the obtaining of the relevant evidence.

20 As to s138(3)(h), I do not think there would have been any difficulty in obtaining the evidence without impropriety or without contravention of the law. Once Constable Keiselis had smelt cannabis, seen windows covered up, and heard fans, he no doubt had sufficient information to persuade a justice to issue a warrant. If, as was claimed, it was not possible to seek a warrant by phone from the vicinity of the first building, it would have been appropriate for one officer to have remained there while the other returned to their vehicle, phoned a justice, and obtained a warrant under s15. It would not have been difficult for a justice to have complied with s15. This is not a situation where the evidence could not have been obtained at all but for the impropriety of the trespassing officers. Their first entry of the first building involved a deliberate cutting of corners that should, in my view, be condemned.

21 Mr Ellis SC submitted that the making of misleading statutory declarations was not a factor relevant to the exercise of my discretion. I reject that submission. It is true that the improper making of misleading statutory declarations was not an impropriety of the type referred to in s138. It was an impropriety that occurred after the evidence was obtained, rather than an impropriety at the time the evidence was obtained. However, when evidence is improperly or illegally obtained by police officers, I consider that the attitude of those officers to the rule of law, as displayed during the relevant investigation and any associated prosecution, before, during and after the obtaining of the evidence, must be relevant to the exercise of the discretion conferred by s138.

22 The only serious improprieties and illegalities in this case, in my view, were (a) the entry and search of the first building by Constables Keiselis and Lodge prior to the seeking of a search warrant; (b) the making of the misleading video; and (c) the making of the misleading statutory declarations. In my view only those matters could possibly warrant the exclusion of any evidence. The evidence that was improperly and illegally obtained is cogent evidence of critical importance in relation to the prosecution of serious drug crimes. There is no suggestion that evidence was tampered with. The officers concerned were somewhat inexperienced. One of them had sufficient candour to express his concerns about the original search of the first building. But, to my mind, the most substantial factor weighing in favour of the admission of the evidence that was illegally obtained is that the police found in the two buildings evidence of cannabis being cultivated on a very large scale, and in a very sophisticated manner. Separate issues arise in relation to the videotape, which I will refer to shortly. In my view, on balance, the criminal activity detected by the police officers was so serious that evidence of what they saw when they inspected and searched the two properties ought to be admitted notwithstanding the illegalities and improprieties that I have referred to. I have therefore decided to admit all of the evidence objected to, apart from the videotape. To some extent, the videotape shows the re-enactment of police activity, disguised as original police activity. The evidence does not enable me to make findings as to the extent to which it does so. No great harm will be done to the prosecution case if the whole of the videotape is excluded. I will therefore not admit any part of it.

23 I therefore determine that all of the challenged search evidence other than the videotape (Exhibit VD6) is to be admitted.