Citation: R v McMaster [2013] NSWDC 90
Court: District Court of NSW
Date: 26 February 2013
Judge(s): Murrell SC DCJ
Background
The accused faced a charge under the Drug Misuse and Trafficking Act 1985 (NSW) of supplying methylamphetamine at Ocean Shores on 25 November 2006. The charge arose after NSW police executed a search warrant on his home that night, discovering 67.7 grams of methylamphetamine in a freezer.
The same factual circumstances had featured in earlier Queensland proceedings. In April 2011, the accused pleaded guilty in the Queensland Supreme Court to carrying on a business of trafficking in methylamphetamine between May 2006 and February 2007, based in part on his repeated supply of the drug to a Queensland associate who transported it north to sell. The Queensland sentencing facts explicitly referenced the 25 November 2006 seizure at the accused's premises. He was sentenced to five years and six months imprisonment and had served his non-parole period before the NSW trial commenced.
The NSW proceedings raised three preliminary issues: whether the prosecution should be permanently stayed as an abuse of process; whether the search warrant was lawfully issued and executed; and, if not, whether the evidence obtained should nevertheless be admitted.
Legal Issues
- Whether the NSW proceedings should be permanently stayed on the ground that the factual subject matter had already been disposed of in the Queensland proceedings
- Whether the search warrant executed on 25 November 2006 was validly issued and lawfully executed under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
- Whether, if the warrant was unlawfully executed, the evidence obtained should be admitted under s 138 of the Evidence Act 1995 (NSW)
Decision
Issue 1: Application for permanent stay
The court refused the stay. Although the power to permanently stay proceedings exists where continuation would be so unfairly oppressive as to constitute an abuse of process, the onus on an applicant is a heavy one and the power is exercised only in exceptional circumstances. The court accepted that the 25 November 2006 events were part of the evidentiary foundation for the Queensland conviction and were likely taken into account in sentencing. However, the NSW and Queensland offences were distinct in law: the NSW charge concerned a specific act of possession for supply, while the Queensland charge concerned carrying on a trafficking business over several months. The criminality of the Queensland offence did not wholly encompass the criminality charged in NSW, and no plea in bar was available.
The court found that the NSW prosecution, while pursuing a conviction, was not seeking any additional penalty. Weighing the competing interests, the court concluded that the continuation of the proceedings was not so oppressive or unfair as to constitute an abuse of process, and the application was refused.
Issue 2: Validity of the search warrant and its execution
The court found that the warrant was not unlawfully issued. However, it was unlawfully executed. Police executed the warrant covertly, without informing the accused or leaving any notice at the premises, in contravention of LEPRA. At the time, there was a widespread misunderstanding in NSW law enforcement that covert execution of a search warrant was lawful. The decision in Ballis v Randall [2007] NSWSC 422 later clarified that it was not, and LEPRA was subsequently amended to permit it. The court concluded the contravention was neither deliberate nor reckless, but it nonetheless constituted a serious intrusion upon the rights of the accused.
Issue 3: Admissibility of evidence under s 138
The court excluded the evidence. Under s 138 of the Evidence Act, evidence obtained in contravention of an Australian law is to be excluded unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. The prosecution bore the onus of establishing that balance. The court weighed the s 138(3) considerations and found they did not collectively favour admission. The offending occurred more than six years before trial, all critical evidence was tainted by the unlawful execution, the evidence had already formed part of the Queensland proceedings and inferentially influenced the Queensland sentence, and the prosecution was not seeking any additional penalty. In those circumstances, the prosecution failed to establish that any substantial public interest or other desirability outweighed the undesirability of admitting the unlawfully obtained evidence.
Orders Made
No orders were made in this decision.
Key Takeaways
- A permanent stay of proceedings is not established merely because the factual subject matter of a prosecution has featured in sentencing proceedings in another jurisdiction; the applicant must show the continuation of proceedings is so unfairly oppressive as to constitute an abuse of process, which is a high threshold.
- The District Court confirmed that distinct state offences, one concerning a specific act of possession for supply and another concerning carrying on a trafficking business over time, are not necessarily co-extensive in criminality, even when the same events underpin both prosecutions.
- Covert execution of a search warrant without notice to the occupier contravened LEPRA as it stood in 2006, even though a widespread misunderstanding existed at the time that such execution was lawful; the contravention was characterised as a serious intrusion on the accused's rights.
- Under s 138 of the Evidence Act, where unlawfully obtained evidence has already been used in sentencing in another jurisdiction and the prosecution seeks only a conviction rather than additional punishment, the balance may not favour admission, despite the absence of deliberate or reckless conduct by police.
- Where all critical evidence in a prosecution is tainted by the same unlawfulness, the passage of significant time since the offending and the prior use of that evidence in related proceedings are relevant considerations weighing against admission.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Drugs Misuse Act 1986 (Queensland), s 5
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Evidence Act 1995 (NSW), ss 90 & 138
Cases
- R v Elhusseini (1988) 33 A Crim R 155
- R v Goulden [1993] 2 Qd R 34
- Barton v The Queen (1980) 147 CLR 75
- Barron v Attorney-General NSW (1987) 10 NSWLR 215
- Williams v Spautz (1992) 174 CLR 509
- R v Basha (1989) 39 A Crim R 337
- R v Carver [1999] NSWCCA 135
- Jago v District Court of NSW (1989) 168 CLR 23
- Walton v Gardiner (1993) 112 ALR 289
- Rogers v R (1994) 123 ALR 417
- Pearce v R [1998] HCA 57
- Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187
- George v Rocket (1990) 170 CLR 104
- Ballis v Randall [2007] NSWSC 422
- Ousley v The Queen (1997) 192 CLR 69
- Trans Nominees v Ryan and Raven (1986) 42 SASR 361
- Application of Lee [2009] ACTSC 98
- Parker v Comptroller-General of Customs [2009] HCA 7
- DPP v Tamcelik [2012] NSWSC 1008
- R v Helmhout [2001] NSWCCA 372
- R v Sibraa [2012] NSWCCA 19