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19
Court of Criminal Appeal 24 December 2001

R v Rondo

[2001] NSWCCA 540

Also reported as (2001) 126 A Crim R 562
DrugsPublic order & justice offences
SUBSEQUENT SEARCH INVALID SEARCH WARRANT ADMISSIBILITY OF EVIDENCE OBTAINED

Citation: R v Rondo [2001] NSWCCA 540
Court: NSW Court of Criminal Appeal
Date: 24 December 2001
Judge(s): Spigelman CJ; Simpson J; Smart AJ

Background

The appellant was convicted in the District Court on drug-related offences following a police investigation that began with the stopping of his vehicle. Police searched the vehicle and subsequently obtained evidence from the appellant's home. The offences were described by the Court of Criminal Appeal as sitting "towards the bottom of the criminal scale," and the appellant received a suspended sentence.

The trial judge (Gibson DCJ) conducted a voir dire (a preliminary hearing to assess admissibility) and admitted the evidence despite finding some irregularities in how it was obtained. The appellant challenged the convictions on multiple grounds, including the legality of the vehicle stop, the validity of a detention warrant, the validity of a search warrant, and the admissibility of oral admissions that were not tape recorded.

The appellant represented himself in the appeal.

  • Whether the initial stopping of the vehicle was lawful under s 357E of the Crimes Act 1900
  • Whether the detention warrant complied with Part 10A of the Crimes Act 1900 and, if not, whether it was invalid
  • Whether the search warrant was valid, given that the stated grounds for its issue were insufficient
  • Whether oral admissions made to police outside the appellant's home, which were not tape recorded, were admissible
  • Whether the trial judge's exercise of the discretion under s 138 of the Evidence Act 1995 to admit the evidence was flawed, having regard to the cumulative effect of multiple procedural unlawfulnesses
  • Whether defence counsel's failure to object to various items of evidence constituted incompetence warranting a ground of appeal

Decision

The Court of Criminal Appeal found that the trial judge's exercise of the s 138 discretion was flawed because it was conducted without taking into account the full extent of the unlawfulness infecting the investigation. Specifically, Gibson DCJ had not treated the unlawful stopping of the vehicle as a contravention of s 357E of the Crimes Act 1900, and accordingly did not weigh that contravention when assessing admissibility. The Court found a clear chain of causation connecting that unlawful stop to the evidence subsequently obtained both from the vehicle and from the home.

The detention warrant was found to be invalid for non-compliance with Part 10A of the Crimes Act 1900. The Court examined that Part in detail, observing that it represents a careful legislative balance between the interests of police investigations and the rights of persons under arrest. Several steps in the chain leading to the discovery of the evidence at the home occurred during the unlawful detention period. The trial judge had not factored this contravention into the s 138 balancing exercise regarding the home evidence.

The search warrant was also found to be invalid, as the grounds specified for its issue were insufficient. The Court noted that the prescribed application form for search warrants required amendment to properly elicit the information the law demands, and emphasised the importance of the contents of such applications. The oral admissions made outside the home were noted to have been inadmissible under s 424A of the Crimes Act 1900 and should have been the subject of an objection at trial, though this alone was not treated as amounting to incompetence on counsel's part.

Spigelman CJ emphasised that no single defect alone would necessarily have been decisive. It was the cumulative weight of the unlawful vehicle stop, the invalid detention warrant, the invalid search warrant, and the untaped admissions that collectively rendered the admission of the evidence a miscarriage of justice. Given that the offences were minor, the appellant had already served a suspended sentence, and he had been subjected to a full trial and appeal, the Court declined to order a retrial.

Orders Made

  • Appeal against convictions allowed
  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • Under s 138 of the Evidence Act 1995, the balancing exercise between the desirability of admitting evidence and the undesirability of admitting improperly obtained evidence must account for every contravention of Australian law that forms part of the causal chain leading to that evidence. Omitting a relevant unlawfulness from the balance renders the exercise flawed.

  • A chain of causation under the "in consequence of" limb of s 138 can extend from an unlawful vehicle stop all the way through to evidence discovered at a person's home, provided the causal link is established.

  • Part 10A of the Crimes Act 1900 (governing detention warrants) reflects a deliberate legislative balance between police investigative powers and the rights of citizens under arrest. Non-compliance with its requirements can invalidate a detention warrant, and evidence obtained during an unlawfully extended detention period may be affected.

  • The prescribed application form for detention and search warrants carries substantive legal significance. The Court of Criminal Appeal indicated that the standard form for search warrant applications required amendment to properly capture the information the legislation requires.

  • In assessing whether to quash a conviction and order a retrial following a flawed admissibility ruling, the Court of Criminal Appeal took into account the minor nature of the offences, the sentence already served, and the fact that the accused had already undergone a full trial and appellate process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 357E and Part 10A (ss 354, 356, 356D, 356E), s 424A
- Evidence Act 1995 (NSW), s 138
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Search Warrant Act 1985 (NSW)
- Crimes (Detention after Arrest) Act 1997 (NSW)

Cases:
- Streat v Bauer; Streat v Blnco (unreported, 16 March 1998, Smart J)
- Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
- George v Rockett (1990) 170 CLR 104
- R v Armstrong (1989) 53 SASR 25
- O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1
- Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701
- R v Rowe (2001) NSWLR 510
- DPP v Farr [2001] NSWSC 3
- R v Reid [1999] NSWCCA 258
- Nix v Williams 467 US 431