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Court of Criminal Appeal 27 February 2012

R v SIBRAA

[2012] NSWCCA 19

Sexual offences
EVIDENCE INVALID SEARCH WARRANT

Citation: R v Sibraa [2012] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 27 February 2012
Judges: Whealy JA, RS Hulme J, Hidden J

Background

The respondent was charged with using a carriage service to make available child abuse material and with possession of child pornography. The charges arose after Australian Federal Police executed a search warrant at his home in December 2009 and seized photographs and other digital material.

The warrant was fatally defective: the issuing magistrate had signed and sealed the document but had left blank the space provided for the date of issue. Under s 3E(5)(e) of the Crimes Act 1914 (Cth), a warrant must state the time at which it expires. Because the expiry time was expressed as midnight on the seventh day after the date of issue, and no date appeared, the warrant was invalid. The Crown conceded the warrant conferred no lawful authority on the officers who executed it.

At first instance, Bennett DCJ in the District Court rejected the seized evidence under s 138 of the Evidence Act 1995 (NSW), concluding that the undesirability of admitting improperly obtained evidence outweighed the desirability of admitting it. The Crown appealed that exclusion decision to the Court of Criminal Appeal.

  • Whether Bennett DCJ's balancing exercise under s 138 of the Evidence Act 1995 (NSW) miscarried, particularly in his treatment of the gravity of the impropriety and whether the police conduct was reckless.
  • Whether the trial judge's finding of recklessness against the Federal agents was supported by the facts.
  • Whether, on the correct application of s 138, the only proper conclusion was that the evidence should be admitted.

Decision

RS Hulme J, with whom Whealy JA and Hidden J generally agreed, held that Bennett DCJ's discretionary decision to exclude the evidence miscarried. The central error lay in the District Court's characterisation of the police conduct. The magistrate was responsible for the primary omission: the warrant document had been prepared with a blank space for the date, and the magistrate signed it without filling that space. The Federal officer who received the signed warrant could reasonably have assumed it was complete, and the executing officers were not unreasonably reckless in failing to scrutinise the document for that deficiency.

RS Hulme J found it unrealistic to expect individual officers executing a warrant to independently verify that every formal requirement has been satisfied when the document appears to have been signed and sealed by a judicial officer. Although the agents bore consequences if their assumption of validity proved wrong, their failure to personally check the warrant did not amount to a conscious disregard of a known risk, which is what recklessness requires. The finding of recklessness therefore could not stand.

Going further, RS Hulme J concluded that on the material before the District Court, after correcting the error on paragraphs (d) and (e) of s 138(3), the only proper conclusion was that the desirability of admitting the evidence outweighed the undesirability. The evidence was of high probative value and essential to the Crown case, the offending was serious, and the impropriety stemmed from an isolated, inadvertent oversight rather than any deliberate or calculated breach.

Whealy JA and Hidden J agreed that the exclusion decision miscarried and that recklessness had not been established, but both declined to express any final view on whether the evidence should ultimately be admitted. They considered that question had not been fully argued before the Court of Criminal Appeal and was best left for the trial judge to determine on remittal.

Orders Made

  • The appeal was allowed.
  • The decision of Bennett DCJ to exclude the evidence obtained during execution of the search warrant was vacated.
  • The proceedings were remitted to Bennett DCJ to be continued in accordance with the Court of Criminal Appeal's decision.

Key Takeaways

  • A magistrate's inadvertent failure to date a search warrant renders the warrant invalid under s 3E(5)(e) of the Crimes Act 1914 (Cth) where the expiry time is expressed by reference to the date of issue.
  • Under s 138 of the Evidence Act 1995 (NSW), a finding of recklessness requires evidence of a conscious disregard of a known risk; an officer's reasonable assumption that a signed and sealed warrant is complete and valid does not, without more, satisfy that standard.
  • Isolated and inadvertent non-compliance with warrant requirements, as distinct from deliberate or calculated breach, carries less weight in the s 138 balancing exercise against admissibility.
  • In dismissing the exclusion decision, the Court of Criminal Appeal confirmed that it is unrealistic to require every officer in an executing team to independently verify the formal sufficiency of a warrant prepared by others and apparently authenticated by a magistrate.
  • Where members of an appellate court differ on whether a question was fully argued below, the preferred course may be to remit that remaining question rather than resolve it on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 3E(5)(e)
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 138
- International Covenant on Civil and Political Rights, Art 17

Cases
- Bunning v Cross (1978) 141 CLR 54
- DPP v Nicholls [2001] 123 A Crim R 66
- Oliver [2002] EWCA Crim 2766
- Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619
- R v Burns (No 3) [1999] SASC 532