Citation: R v Cochran & Reihana [No. 1] [2017] NSWDC 368
Court: District Court of New South Wales
Date: 27 November 2017
Judge(s): Haesler SC DCJ
Background
Two accused men stood trial on charges arising from an alleged serious assault. The prosecution alleged that on 31 January 2016, both men brought the complainant to a flat at 7/4 Stewart Street, Wollongong, where he was tied up, beaten, threatened with a meat cleaver, and burned with a blow torch before being sexually assaulted.
Prior to any complaint being made about these events, police attended the flat on 1 February 2016 to arrest one of the accused on unrelated matters. Officers observed items of interest in the flat and applied for a search warrant. Through a series of administrative errors, including a radio log that had initially recorded the wrong address, all documents provided to the authorised officer caused a warrant to be issued for 7/3 Stewart Street rather than 7/4 Stewart Street. The two addresses are on opposite sides of the road.
Police executed the warrant at 7/4 Stewart Street that evening, recording the search. Among the items seized were a meat cleaver, a blow torch, cable ties, a sword, a pellet gun, and a mobile phone containing a recording that corroborated the complainant's later account. Before the trial commenced, the defence challenged the admissibility of all evidence obtained from that search.
Legal Issues
- Whether the search warrant was invalid because it specified the wrong address
- Whether the error in the warrant was a mistake of form only, or one that went to the substance of the warrant in a material particular under section 76 of the Law Enforcement (Powers and Responsibilities) Act 2002
- Whether, if the warrant was invalid and the search therefore unlawful, the prosecution had satisfied the onus under section 138 of the Evidence Act 1995 to have the evidence admitted despite the illegality
Decision
Issue 1: Validity of the warrant
The court found the warrant was invalid. The Law Enforcement (Powers and Responsibilities) Act 2002 requires that an application for a search warrant identify the address or other description of the subject premises, and that a warrant be issued only where that information is included (at [20]-[21]). The warrant here specified 7/3 Stewart Street, which was not the premises police searched. The "other description" on the warrant, referring to a one-bedroom self-contained brick unit on the second level in a complex of eight, was insufficient on its own to identify the specific premises and overcome the deficiency (at [25]).
Issue 2: Form versus substance
The prosecution argued the error was a mere typographical mistake that did not invalidate the warrant, pointing out that the correct premises were in fact searched. The court rejected this. Validity must be assessed objectively: the authorised officer was misled into issuing a warrant for the wrong address, the occupier was not present when the warrant was executed, and police on scene did not correct the error despite being obliged to ensure the warrant matched the property to be searched (at [26]). The absence of a correct address was a missing condition precedent for a valid warrant, making the error one of substance rather than form (at [26]). The search and resulting seizures from 7/4 Stewart Street were therefore unlawful (at [27]).
Issue 3: Admissibility under section 138 of the Evidence Act 1995
Once evidence is found to have been illegally obtained, the onus shifts to the prosecution to satisfy the court that it should nonetheless be admitted. The court acknowledged the competing public interests: the importance of the search warrant regime as a protection of liberty, and the public interest in admitting relevant, reliable and probative evidence (at [28]-[31]). After weighing all factors required by section 138(3), the court concluded that the desirability of admitting the evidence outweighed the undesirability of doing so, given the manner in which it was obtained (at [34]). The prosecution satisfied its onus, and the evidence was admitted subject to any further objection (at [34]).
Orders Made
- Evidence from the search of 7/4 Stewart Street admitted pursuant to section 138 of the Evidence Act 1995
Key Takeaways
- The District Court confirmed that strict compliance with search warrant legislation is required, and that a warrant must specify the correct address of the premises to be searched in order to be valid (at [18]-[21]).
- A wrong address on a search warrant is not automatically a mere error of form. Where the address is a condition precedent for a valid warrant and the authorised officer was misled into specifying the wrong premises, the error goes to the substance of the warrant in a material particular and renders it invalid (at [25]-[26]).
- Validity of a search warrant is assessed objectively. The fact that police intended to search, and did search, the correct premises did not cure the defect, particularly where no occupier was present to correct the error and police on scene failed to notice the mismatch (at [26]).
- Under section 138 of the Evidence Act 1995, once evidence is found to have been illegally obtained, the prosecution bears the onus of satisfying the court that the desirability of admitting the evidence outweighs the undesirability of doing so. That onus can be met even where a search warrant is invalid (at [32]-[34]).
- The timing and nature of the seized items carried significant weight in the section 138 balancing exercise: the items were seized before any complaint had been made and corroborated witness accounts of the alleged offending, making their probative value considerable (at [7]-[8]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Evidence Act 1995
- Law Enforcement (Powers and responsibilities) Act 2002- Part 5
- Search Warrants Act 1985
Cases
- Bunning v Cross (1978) 141 CLR 54
- Carrol v Mijovitch (1991) A Crim R 243
- Carter v The Queen (1995) 183 CLR 121
- George v Rocket (1990) 170 CLR 104
- IMM v The Queen (2016) 257 CLR 300
- Mann v Carnell (1999) 201 CLR 1
- Pearse v Pearse (1846) 63 ER 950
- The Queen v Ireland (1970) 126 CLR 321
- The Queen v Swaffield (1998) 192 CLR 159