Citation: [2019] NSWLC 7
Court: Local Court of New South Wales
Date: 26 September 2019
Judge(s): Hiatt LCM
Background
A hospital employee faced two charges of stealing medical supplies as a clerk or servant, with the alleged offences spanning several years. The prosecution's case rested substantially on evidence obtained when police executed a search warrant at her residential premises on 18 April 2018. Police had originally attended the premises in connection with an unrelated matter, and detectives subsequently applied for a search warrant.
The investigating detective applied for the warrant after attending the scene and speaking with the accused at Nepean Hospital. The warrant she obtained specified the premises to be searched as "2/44 SGL Road, South Penrith." The accused's actual address was "44A SGL Road, South Penrith," also known as "3/44." The detective was not present when the warrant was executed and only discovered the error afterwards.
The defence brought a voir dire application to exclude the evidence obtained during the search, arguing that the warrant was invalid because it misdescribed the premises, and that the evidence should therefore be excluded under section 138 of the Evidence Act 1995.
Legal Issues
- Whether the search warrant was valid, given that the address it specified ("2/44 SGL Road, South Penrith") did not match the accused's actual premises ("44A" or "3/44 SGL Road, South Penrith")
- Whether the misdescription was a defect affecting the substance of the warrant in a material particular, such that section 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 could not save the warrant from invalidity
- If the warrant was invalid, whether the evidence obtained should be excluded under section 138 of the Evidence Act 1995
Decision
Issue 1: Validity of the search warrant
The court held that a search warrant must describe the premises to be searched with reasonable particularity, so that both the police executing it and the occupier can identify those premises without reference to acquired or background knowledge of the investigation (at [32]-[33]). Minor errors in an address will not invalidate a warrant if the premises can still be identified with reasonable certainty, but not every misdescription falls into that category (at [35]-[40]).
The court found that the warrant's reference to "2/44" was a typographical error made solely by the investigating detective, a conclusion supported by the crime scene log and property seizure form, which both referred to "44A" (at [12], [15]). However, the error could not be cured by that background knowledge. An objective reader of the warrant would have no way of knowing whether the mistake lay in the unit number, the street name, the type of thoroughfare, or the suburb (at [41]-[42]).
Issue 2: Application of section 76 of LEPRA
Section 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 provides that a warrant is not invalidated by a defect unless that defect affects the substance of the warrant in a material particular. The court found that the misdescription of the premises was precisely such a defect, meaning section 76 afforded no protection and the warrant was invalid (at [43]).
Issue 3: Exclusion of evidence under section 138
Having found the warrant invalid, the court turned to section 138 of the Evidence Act 1995. That provision requires the prosecution to demonstrate that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained improperly or in contravention of Australian law. The court found the prosecution had not discharged that onus and excluded the evidence accordingly (at [47]-[50]).
Orders Made
- The search warrant is invalid.
- The evidence seized pursuant to the search warrant is excluded under section 138 of the Evidence Act 1995.
Key Takeaways
- A search warrant must describe the premises to be searched with sufficient particularity that police executing it and the occupier can identify those premises from the face of the warrant alone, without recourse to background knowledge of the investigation (at [32]-[33]).
- Minor errors in a warrant's description of premises will not invalidate the warrant if the correct premises can still be identified with reasonable certainty. However, where an objective reading of the warrant leaves open multiple possible explanations for the error, including the wrong street name, thoroughfare type, or suburb, that threshold is not met (at [35]-[42]).
- Section 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 does not protect a warrant from invalidity where the defect goes to the substance of the warrant in a material particular. A misdescription of the premises to be searched can constitute such a defect (at [43]).
- The fact that a misdescription results from a clerical error made in good faith by the applying officer does not of itself cure the invalidity of the warrant (at [15], [43]).
- Under section 138 of the Evidence Act 1995, once evidence is found to have been obtained in consequence of an invalid warrant, the onus falls on the prosecution to demonstrate that the desirability of admitting the evidence outweighs the undesirability of admitting improperly obtained evidence (at [47]-[50]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 s 76
Cases
- Carbone v National Crime Authority (1994) 52 FCR 516
- Carroll v Mijovich (1991) 25 NSWLR 441
- George v Rockett (1990) 170 CLR 104
- Hartnett v New South Wales [1999] NSWSC 265
- Ousley v The Queen (1997) 192 CLR 69
- R v Adamic [2000] QSC 402; (2000) 117 A Crim R 332
- R v Gassy (No 3) 2005 SASC 496
- Way Out West Adult Shop P/L v Kraus [2008] NSWSC 87