Citation: R v Rebecca Cook [2017] NSWLC 24
Court: Local Court of New South Wales
Date: 24 August 2017
Judge(s): Magistrate D Heilpern
Background
The defendant faced two separate sets of criminal charges. The first arose from a police search on 20 April 2016, conducted under a warrant that was later invalidated by the Supreme Court. The second arose from a traffic stop on 14 July 2016, to which the defendant had already pleaded guilty to a drug driving charge. The remaining charge from the July stop was the subject of the second exclusion application.
For the April charges, police had obtained warrants for two addresses. Upon arrival, officers discovered the house number on their warrant was wrong. Rather than seeking a fresh warrant, the informant had a colleague telephone the court registrar, received approval to change the address, and altered her paperwork accordingly. The search proceeded and located cannabis, amphetamines, cannabis seeds, cannabis cookies, and ammunition. The Supreme Court subsequently declared the warrant invalid and quashed the relevant decision to issue it.
For the July charge, a police officer used random breath testing (RBT) powers to stop the defendant's vehicle, when his actual purpose was to investigate a matter unrelated to drink driving. The defendant's vehicle had been specifically targeted by the officer based on information he had about it, rather than as part of a genuine random breath testing operation.
Legal Issues
- Whether evidence obtained during the execution of the invalidated search warrant should be excluded under section 138 of the Evidence Act 1995 (NSW), given that the warrant was declared invalid by the Supreme Court.
- Whether evidence obtained after the defendant's vehicle was stopped using RBT powers, where the true purpose of the stop was criminal investigation rather than drink driving enforcement, should be excluded under section 138.
- In each instance, whether the prosecution could satisfy the court that the desirability of admitting the evidence outweighed the undesirability of doing so.
Decision
The search warrant charges (April 2016)
The prosecution conceded that the evidence was obtained in consequence of an impropriety, given the Supreme Court's orders. The burden therefore shifted to the prosecution to establish that admission of the evidence was nonetheless desirable. The court applied the balancing exercise under section 138(3), weighing factors including the seriousness of the offending, the good faith of the officer, the technical nature of the breach, and the significance of the rights infringed.
Magistrate Heilpern found the officer's conduct fell short of recklessness and that she had genuinely believed the variation process was lawful, having used it once before without incident. The court found the error to be a procedural shortcut rather than a deliberate disregard for the law. Noting that the primary fault lay in the flawed process used to vary the warrant rather than in any intent to circumvent legal safeguards, and drawing on comparable decisions in R v Sibbraa and R v Poulakis, the court admitted the evidence in respect of the April charges.
The vehicle stop charge (July 2016)
The court found the officer had used RBT powers as a vehicle to conduct a targeted criminal investigation, which is an unlawful purpose for those powers. The officer was honest in his evidence and did not appear to appreciate that his conduct was problematic, but the law on this point had been clearly stated in intermediate court decisions and ought to have been known and followed.
Balancing the factors under section 138, the court excluded the evidence. The charge was characterised as particularly minor, and the infringement of the defendant's rights in having her vehicle deliberately targeted using powers intended for a different purpose was considered serious. The court declined to admit the evidence.
Orders Made
• The evidence is excluded under section 138
Key Takeaways
- Under section 138 of the Evidence Act 1995 (NSW), once a defendant establishes that evidence was obtained through an impropriety or contravention of Australian law, the burden shifts to the prosecution to show the desirability of admitting the evidence outweighs the undesirability of doing so.
- Where a search warrant is later declared invalid due to a procedural error in varying the address, evidence obtained during the search is not automatically excluded: the court must conduct a balancing exercise, and good faith on the part of the executing officer is a relevant consideration weighing in favour of admission.
- A finding that the origin of an impropriety lies primarily with a court official (such as a registrar), rather than with the police themselves, is a relevant factor in the section 138 analysis, as observed in both R v Sibbraa and R v Poulakis.
- Using random breath testing powers to stop a vehicle for a purpose other than drink driving enforcement constitutes an unlawful exercise of those powers, and evidence obtained as a result may be excluded, particularly where the charge is minor and the rights infringement significant.
- The Local Court treated an unreported Local Court decision dealing with near-identical facts as highly persuasive on the basis that like cases should be determined alike, even though Local Court decisions do not bind other Local Court magistrates as formal precedent.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 138
- Interpretation Act 1987 (NSW), ss 34, 35
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 36
Cases
- R v Sibbraa [2012] NSWCCA 19
- R v Poulakis (No 1) [2015] ACTSC 189
- R v Buddee [2016] NSWDC 422
- R v Paul Kenneth Rowley (Unreported, Local Court of New South Wales, Grogin LCM, 22 January 2015)
- DPP v Kaba [2014] VSC 52
- George v Rockett [1990] HCA 26
- Plenty v Dillon [1991] HCA 5
- Olmstead v United States (1928) 277 US 438
- Bunning v Cross (1978) 141 CLR 54