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Court of Criminal Appeal 26 August 2015

R v Gallagher; R v Burridge

[2015] NSWCCA 228

Drugs
APPEAL EVIDENCE ACT, S 138 RULING EXCLUDED ENTIRETY OF CROWN CASE EVIDENCE ADMITTED.

Citation: R v Gallagher; R v Burridge [2015] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 26 August 2015
Judge(s): Gleeson JA, Adams J, Beech-Jones J (unanimous)

Background

Two respondents were charged with serious drug offences following the discovery of cannabis plantations on adjoining rural properties at Lawrence, NSW. The charges followed the execution of search warrants on 6 March 2012, which uncovered hundreds of cannabis plants, kilogram quantities of cannabis leaf, and related paraphernalia consistent with a commercial cultivation and supply operation.

The warrants were obtained after a police officer, Senior Constable Hembrow, attended one of the properties the day before to conduct a routine firearms audit. During that visit, the officer located an irrigation pipe leading to a cannabis plantation, prompting the subsequent warrant applications.

The respondents applied to the District Court to have all of that evidence excluded under s 138 of the Evidence Act 1995, arguing the officer had conducted an unlawful search. The primary judge agreed, excluded the evidence, and effectively eliminated the entire Crown case against both respondents. The Director of Public Prosecutions appealed under s 5F(3A) of the Criminal Appeal Act 1912.

  • Whether the police officer was acting within the scope of an implied licence to enter the property when he located the cannabis plantation
  • Whether the officer's conduct was separately authorised by crime scene powers under s 88 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the primary judge correctly exercised the discretion under s 138(1) of the Evidence Act 1995 to exclude the evidence, having regard to the gravity of any contravention and whether the officer's conduct was "reckless"

Decision

Trespass finding upheld (in substance). The Court of Criminal Appeal accepted that when Senior Constable Hembrow located the irrigation pipe leading to the cannabis plantation, he was acting outside the scope of any implied licence. The Director had conceded this point on appeal. A subsidiary challenge to one aspect of the primary judge's reasoning about the scope of the implied licence was not resolved, as the Court found it unnecessary to do so.

Crime scene powers argument rejected. The Director argued the officer's conduct was authorised under the LEPRA crime scene provisions. The Court rejected this, finding the officer had not formed the requisite state of mind necessary to engage those powers. The trespass finding therefore stood.

Discretion under s 138 miscarried. Despite upholding the trespass finding, the Court of Criminal Appeal found the primary judge's exercise of the exclusionary discretion was flawed in two critical respects. First, the primary judge had erred in characterising the officer's conduct as "reckless": the evidence did not support that conclusion, and the conduct could at most be described as careless. Second, the primary judge had wrongly assessed the contravention as being of substantial gravity. The trespass was relatively minor, occurred in a likely uninhabited area, and involved a negligible intrusion on personal living space.

Evidence admitted. Applying the s 138(1) balancing exercise afresh, the Court held the desirability of admitting the evidence outweighed the undesirability. The probative value of the evidence was high, the charges were serious, and the trespass was at most a minor and careless one. The Court noted the admissions obtained during the search warrants remained open to separate challenge on unrelated grounds.

Orders Made

  • The appeal was allowed
  • The ruling of Jeffreys DCJ made on 17 December 2014 was set aside
  • Subject to any further objection to the admissibility of admissions made by either respondent, the evidence obtained during and as a result of the execution of the search warrants on 185 and 187 Stuart Road, Lawrence on 6 March 2012 was admitted at the trial of the respondents

Key Takeaways

  • A finding that a police officer committed a trespass does not automatically result in exclusion of evidence under s 138 of the Evidence Act 1995: the court must still conduct a proper balancing exercise, and the nature and gravity of the contravention are central to that exercise.
  • "Recklessness" under s 138(3)(e) requires something more than carelessness or inadvertence. The Court of Criminal Appeal found the primary judge erred in labelling the officer's conduct reckless where the evidence supported only a finding of carelessness.
  • The gravity of a trespass is assessed contextually. A brief, minor encroachment on an uninhabited area of a rural property was held to represent a relatively minor contravention, not one of substantial gravity.
  • Where a primary judge's s 138 discretion miscarries because of an error in characterising the officer's conduct, the appellate court may undertake the balancing exercise afresh rather than remitting the matter.
  • Under s 5F(3A) of the Criminal Appeal Act 1912, the DPP may appeal an evidentiary ruling only where that ruling eliminates or substantially weakens the prosecution's case. The exclusion of evidence rendering the entirety of the Crown case inadmissible clearly satisfies that threshold.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), s 138(1)
- Firearms Act 1996 (NSW), ss 7A(1), 19
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 47(1), 88

Cases:
- Bunning v Cross [1978] HCA 22; 141 CLR 54
- Halliday v Nevill [1984] HCA 80; 155 CLR 1
- House v The King [1936] HCA 40; 55 CLR 499
- Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
- Fleming v The Queen [2009] NSWCCA 233; 197 A Crim R 282
- R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
- R v Helmout [2001] NSWCCA 372; 125 A Crim R 257
- Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece [2011] VSCA 355; 219 A Crim R 344
- O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286
- State of NSW v McCarthy [2015] NSWCA 153
- Dowse v State of New South Wales [2012] NSWCA 337
- Parker v Comptroller General of Customs [2007] NSWCA 348
- Australian Securities & Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 240 FLR 327