Criminal Law - Jurisdiction, practice and procedure - Warrants, arrests, search, seizure and incidental powers - Warrants - Search warrants - Issue and validity - Generally - Whether susceptible to collateral challenge for insufficiency of material before issuing officer.

McArthur v Williams (1936) 55 CLR 324; Murphy v R [1989] HCA 28; (1989) 167 CLR 94; Ousley v R (1997) 192 CLR 69; Question of Law Reserved on Acquittal [2000] SASC 51; (2000) 111 A Crim R 75, referred to.

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Assessment of whether the desirability of admitting evidence outweighs the undesirability of its admission is a balancing exercise.

Evidence Act 2001 (Tas), s138.

Judgment Number: [2007] TASSC 33

1 Following the empanelment of a jury to try the accused on 11 December 2006, I dealt with an application by the accused to rule certain evidence inadmissible. I rejected the application and said that I would publish my reasons for doing so later. These are the reasons.

2 The accused was charged with trafficking in MDMA and trafficking in LSD. At the core of the prosecution's case was evidence that on 20 January 2005 when police officers entered a residence at 2 Osprey Road, Claremont they found the accused with 490 MDMA tablets, commonly known as Ecstasy and in the course of searching at that residence also located 63 LSD tickets.

3 Plainly that evidence was relevant. On behalf of the accused it was submitted that the evidence should not be admitted as it was obtained improperly or in contravention of an Australian law or in consequence of the same. That application invoked the Evidence Act 2001, s138, which replaces the common law rule as to the exclusion of improperly or illegally obtained evidence. As the party seeking to exclude the evidence, the onus was on the accused to establish the impropriety or contravention upon which he relied, see R v Coulstock (1998) 99 A Crim R 143; R v W J Eade [2000] NSWCCA 369 at [60]. On that onus being met, the evidence could not be admitted unless the State, the party seeking its admission, satisfied the Court that the desirability of admitting the evidence outweighed the undesirability of admitting it, given the way in which the evidence was obtained.

4 The accused's mother resided at 2 Osprey Road, Claremont. I infer that when police officers entered that residence and carried out the searches in question, they did so without consent. On the basis of that inference, the entry was a trespass and unlawful unless otherwise authorised. The authority relied on for the entry was a search warrant issued on 20 January 2005. The contention initially advanced on behalf of the accused was that the warrant was not validly issued pursuant to the Search Warrants Act 1997 as there was insufficient information before the officer who issued it to satisfy him that there were reasonable grounds for suspecting that there was, or would be within the next 72 hours, evidence relevant to an offence at 2 Osprey Road. This is required by the Search Warrants Act, s5(1), which provides:

"5 (1) An issuing officer may issue a warrant to search premises if the officer 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."

5 There is high authority that the scope of a collateral challenge to the administrative act of issuing a search warrant is closely confined and does not include questioning the sufficiency of the material placed before the officer who issued it. See McArthur v Williams (1936) 55 CLR 324 at 365 - 366, Murphy v R [1989] HCA 28; (1989) 167 CLR 94 at 104 - 106; Ousley v R (1997) 192 CLR 69 at 79, 87 and 126 - 127 and Question of Law Reserved on Acquittal [2000] SASC 51; (2000) 111 A Crim R 75. After I had drawn counsel for the accused's attention to these authorities, counsel altered the basis for the challenge to the validity of the warrant to a contention that there was no information whatsoever before the issuing officer on which he could have been satisfied as required by the Search Warrants Act, s5(1). The legitimacy of a collateral attack on the validity of a warrant on the basis of a total absence of any information on which the issuing officer could discharge the statutory responsibilities which enlivened his or her jurisdiction to issue the warrant was recognised in George v Rockett [1990] HCA 26; (1999) 170 CLR 104 at 122 and Question of Law Reserved on Acquittal (supra) at par155.

6 The warrant in question is one of three that were together issued by Frank Henderson, a justice of the peace, on the application of Sergeant Karina Parker. As to each warrant, Sergeant Parker provided Mr Henderson with a sworn application. The Court did not have before it a complete copy of each application as portions had been excluded on the basis that they contained information that a prosecution witness was not obliged to disclose, pursuant to the Misuse of Drugs Act 2001, s34, that is, information received by the witness and the name of the person who provided the information. For similar reasons the Court did not have before it full details of sworn oral information that Sergeant Parker provided to Mr Henderson when she obtained the warrants. Whilst in some cases this could present the Court with considerable difficulties this was not such a case.

• The accused was a known drug trafficker who was currently the target of an operation being conducted by Tasmania police.
• Residences from which the accused trafficked included those at 3 Wendourie Parade, Austins Ferry and 2 Osprey Road, Claremont, the latter residence being that of his mother.
• On the morning of 20 January 2005, police had intercepted an express post package addressed to M Cowen at 3 Wendourie Parade, Austins Ferry which was found to contain 490 Ecstasy tablets. The package was to be delivered that day.
• On 1 December 2004, New South Wales police had seized an express post package containing 100 tablets addressed to 3 Wendourie Parade, Austins Ferry.
• On 16 December 2004, police had opened an express post package addressed to M Cowen at 3 Wendourie Parade, Austins Ferry and found it to contain 47 Ecstasy tablets.
• Marcelle Cowen, who resided at 3 Wendourie Parade, Austins Ferry, was an associate of the accused and was in or had been in a relationship with him.
• The accused had been seen visiting 3 Wendourie Parade.

8 Clearly on the basis of this information it was reasonable to suspect that within the next 72 hours the 490 Ecstasy tablets would find their way to an address from which the accused was known to traffic. In these circumstances there was ample evidence for Mr Henderson to find, as he did, that there were reasonable grounds for suspecting that evidence of an offence would be at 2 Osprey Road, Claremont within 72 hours. The contention that there was a total absence of information to support Mr Henderson's finding is unsustainable and for these reasons it was rejected.

9 A further ground on which counsel for the accused contended that the evidence in question was inadmissible was that the police's interception of the express post package containing the 490 Ecstasy tablets contravened the Australian Postal Corporation Act 1989 (Cth).

10 The circumstances of that interception were that on the morning of 20 January 2005, police officers attended the Mornington Mail Centre to examine articles in the post for illicit drugs. Examinations of this nature were conducted as a matter of routine, subject to the involvement of an Australia Post supervisor and a customs officer and in accordance with a memorandum of understanding between the police and Australia Post. On the morning in question, a package addressed to M Cowen at 3 Wendourie Parade was identified as being suspicious. The police were aware that on prior occasions packages posted to that address had contained drugs. An x-ray of the package showed that it contained tablets. The package was put aside for further attention and a police officer opened it sufficiently to see the tablets it contained. Thereafter the package was seized by a police officer, a seizure that I conclude was authorised by the Misuse of Drugs Act, s29.

11 Counsel for the accused submitted that what occurred that morning contravened some provisions of the Australian Postal Corporation Act. In summary, pursuant to that Act:

• while the package was under the control of Australia Post, it "shall be taken to be" the property of Australia Post, s101;
• x-raying the package was prohibited unless conducted by an authorised examiner, that is a person so appointed by Australia Post, ss90P and 90FP; and
• when the package was in the control of Australia Post, the opening of it was prohibited, ss90M and 90N.

12 No direct evidence was put before me that an authorised examiner supervised the x-ray of the package. Counsel for the accused contends that in the absence of this evidence, I should conclude that the package was x-rayed in contravention of the Act. I am unpersuaded as to this. The examination in question was an aspect of a routine exercise and there is no reason to conclude that those involved were not duly authorised. It is to be remembered that the accused carries the burden of establishing that the evidence in question was obtained in consequence of an impropriety or a contravention of the law.

13 The package was opened by a police officer at the premises of Australia Post prior to a police officer providing Australia Post with a property seizure record referable to it. Counsel for the accused submitted that as this was while the package was still in the control of Australia Post, s90N was contravened. Counsel for the prosecution submits that I should not accept that this is so and should infer that at the time that the package was opened it was "out of the control (whether temporarily or otherwise) of Australia Post" and in those circumstances s90N does not apply. Whilst the evidence before me as to what transpired before and after the opening of the package by the police officer is skimpy, I am satisfied that it was opened before the package was out of the control (whether temporarily or otherwise) of Australia Post. Unquestionably it was sometime after the opening of the package that Australia Post was provided with a property seizure record in relation to the package and some other articles. On balance I am satisfied that it was not until that time that there was a formal seizure of these items, including the package. Until that time the package remained subject to the control of Australia Post. I also find that the opening of the package by a police officer before it had been removed from the premises of Australia Post was a contravention of the memorandum of understanding between the police and Australia Post. I make this finding in reliance on the oral evidence given before me. The memorandum of understanding was not put into evidence. I am accordingly satisfied that in opening the package at Australia Post to obtain confirmation that it contained tablets, a police officer breached the Australian Postal Corporation Act, s90N.

14 When I dealt with this issue on 11 December 2006, I said that I assumed that such a breach had been established, pursuant to the Evidence Act, s138, which meant that the evidence was not to be admitted unless the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way in which it was obtained. I said that I was so satisfied and admitted the evidence. That section relevantly provides:

(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."

15 As can be seen, it fell to the State as the party seeking to admit the evidence to persuade the Court that the desirability of admitting it outweighed the undesirability of admitting evidence obtained in the way in which it was obtained. At common law, this assessment was categorised as the exercise of a discretion and the section heading to s138 refers to it as a discretion. The section does not, however, confer a discretion. The requirement that the evidence "is not to be admitted" unless the desirability of admission outweighs the undesirability of admission gives the judge no discretion. It requires an evaluation and comparison of these matters and a determination of whether the desirability outweighs the undesirability. To my mind this is much the same balancing exercise as arises under s101(2), which relates to the admission of tendency evidence, see R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 and s137, which relates to the exclusion of prejudicial evidence, see The Director of Public Prosecutions v Lynch [2006] TASSC 89 [18].

16 The following addresses the matters detailed in s138(3). The probative value of the evidence the accused sought to have excluded was unquestionable and it was crucial to the prosecution's case. The offences with which the accused was charged were serious and conduct such as that alleged could potentially harm not only illicit drug users, but those who suffer at their hands or in consequence of the harm caused to them. The potential flow-on effect of the harm caused by trafficking in illicit drugs is extensive. In the context of this case, the gravity of the contravention by the police officer was not substantial. The officer acted prematurely. Had the opening of the package been deferred until after its seizure, there would have been no contravention. Upon reflection it is strongly arguable that the evidence in question was not "obtained ... in consequence" of the established contravention as is required by s138(1). The police already knew that the package contained tablets and it seems inevitable that it would have been seized regardless of the contravention. Whilst the contravention was not deliberate, it was reckless insofar as the police officer who opened the package should have been aware of the requirements of the Act. The only relevant provision of the International Covenant of Civil and Political Rights is Article 17, cl 1, which provides:

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

Whilst what the police officer did amounted to an unlawful interference with correspondence addressed to Marcelle Cowen, it was not she, but the accused, who may have thereby suffered. In saying this I am not ignoring the technicality that pursuant to the Australian Postal Corporation Act, s101, at the time of the contravention the package was not Marcelle Cowan's but was the property of Australia Post. This is because the package was still in the control of Australia Post. In any event, Marcelle Cowen has not been charged with an offence in consequence of the police officer's contravention. The only relevant person who may have suffered from the contravention is the accused, insofar as it was an aspect of the thwarting of his apparent efforts to conceal his alleged involvement in criminal conduct. There is no suggestion that any proceedings are likely to be taken against the police officer in relation to the contravention.

17 The common law principle that provided the impetus for the enactment of s138 recognised the need for a trial judge to engage in a balancing process to resolve the apparent conflict between the desirable goal of bringing to conviction a wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law; see Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74 and Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 at 31. As I have said, the contravention in this case was an incidental aspect to the investigative process that resulted in the accused being found in possession of the drugs that are the subject of the charges that he faced. In the context of the case, the admission of the evidence did not approve or encourage the contravention in question and the risk of so doing was greatly outweighed by the desirability of putting highly relevant evidence before the jury.

18 Consistent with these reasons, I ruled that the evidence in question may be admitted.