Citation: [2022] NSWLC 24
Court: Local Court of NSW
Date: 26 April 2022
Judge(s): Magistrate M O'Brien
Background
Police attended a rural property in the Kangaroo Valley without a warrant to make inquiries about an alleged illegal building structure and illicit drug manufacture. The occupant asked them to leave, and they did. Later that same day, a police officer applied to the Registrar of Nowra Local Court for a search warrant, nominally to search for documents connected to an alleged fraud arising from unapproved building work.
Police returned the following day armed with that warrant. During the search, a dried cannabis leaf was found inside the dwelling. Police then told the accused that if he did not consent to a further search, a crime scene warrant would be obtained within hours. He consented. Cannabis plants were subsequently found in various locations across and beyond the property.
The accused was charged with cultivating cannabis under the Drug Misuse and Trafficking Act 1985. He pleaded not guilty and applied on a voir dire for all evidence obtained during and following the execution of the search warrant to be excluded under section 138(1) of the Evidence Act 1995, on the basis that the warrant had been obtained through police impropriety.
Legal Issues
- Whether the search warrant was validly obtained, given the prosecution relied on alleged fraud under section 192E of the Crimes Act 1900 as the "searchable offence" justifying its issue
- Whether police held a reasonable suspicion of fraud sufficient to ground the warrant application
- Whether police exceeded the scope of the warrant during its execution
- Whether the accused's consent to the subsequent search broke the causal chain between the unlawful warrant and the evidence obtained
- Whether the evidence should be excluded under section 138(1) of the Evidence Act 1995 as having been obtained in consequence of an impropriety or contravention of Australian law
Decision
Issue 1: Validity of the search warrant
The Magistrate found no evidence of fraud capable of supporting a charge under section 192E of the Crimes Act (at [24]). There was evidence only that the accused had built a residence without council approval, not that he had dishonestly obtained a financial advantage by deception (at [22], [24]). Offences under the Environmental Planning and Assessment Act 1979 are not "searchable offences" within the meaning of section 46A of LEPRA (at [20], [32]).
The Magistrate found that Senior Constable Corbridge did not hold any reasonable suspicion of fraud when he applied for the warrant (at [26]). The Magistrate described much of Corbridge's evidence under cross-examination as "disingenuous and self-serving" (at [25]) and concluded that fraud was used as a ruse to search for evidence of drug offences under the DMTA, the true purpose of the investigation (at [33]). The search warrant was therefore not validly obtained (at [34]).
Issue 2: Execution of the warrant and its scope
Even accepting a valid warrant had been issued, the Magistrate found that police exceeded its bounds during execution. The warrant authorised a search for documents relating to development of the residence (at [37]). Video evidence from the search showed police searching areas where documents would not be found, and handling drainage areas in a manner consistent with looking for drugs rather than documents (at [39]). Police also searched land beyond the accused's property boundary without the adjoining owner's permission, and the Magistrate found police were reckless about the extent of that boundary (at [40]-[41]).
Issue 3: Consent and chain of causation
The Magistrate accepted that the accused's consent to the further search was freely given, but held that it did not break the causal chain between the unlawful search and the evidence obtained (at [43]-[44]). The consent arose directly from the unlawful execution of the defective warrant: without the cannabis leaf found during that search, police could not have established a crime scene or obtained a crime scene warrant (at [43]). All evidence obtained following the execution of the search warrant was found to be in consequence of impropriety and contravention of LEPRA (at [45]).
Issue 4: Exclusion under section 138(1)
Having considered the factors in section 138(3) of the Evidence Act 1995, the Magistrate exercised the discretion to exclude the evidence (at [49]). The court was satisfied that the impropriety was serious: police had deliberately misled the issuing registrar about the nature and purpose of the warrant, and the conduct surpassed the warrant's authorised scope.
Orders Made
- Evidence obtained during execution of the search warrant excluded.
Key Takeaways
- A search warrant obtained by misrepresenting the offence under investigation to the issuing officer is not validly obtained; the Magistrate found the fraud justification was a ruse to investigate drug offences, which were the real target of police inquiries (at [33]-[34]).
- Under LEPRA, police must hold a genuine and reasonable suspicion of a "searchable offence" to ground a valid warrant application; an absence of any evidence capable of supporting the nominated offence will be fatal to the warrant's validity (at [24], [26]).
- Where police exceed the scope of a search warrant during execution, evidence of conduct falling outside that scope may be excluded, including items found in areas inconsistent with the stated purpose of the search (at [39]-[41]).
- Consent to a subsequent search does not automatically break the chain of causation where that consent was obtained against the backdrop of an unlawful search; the Magistrate held the accused's consent here arose directly from the unlawfully conducted search (at [43]-[44]).
- Section 138(1) of the Evidence Act 1995 permits exclusion of evidence obtained in consequence of impropriety or contravention of Australian law, not only evidence obtained through direct illegality; the causal link between the impropriety and the evidence is the critical requirement (at [42], [45]).
Legislation and Cases Referenced
Legislation
- Drugs Misuse and Trafficking Act 1985
- Crimes Act 1900
- Evidence Act 1995
- Law Enforcement (Powers and Responsibilities) Act 2002
- Criminal Procedure Act 1986
- Environmental Planning and Assessment Act 1979
- International Covenant on Civil and Political Rights
Cases
- George v Rockett (1990) 170 CLR 104
- R v Ho (1989) 39 A Crim R 145
- Cornwell v The Queen [2010] NSWCCA 59
- Director of Public Prosecutions (Vic) v Natale [2018] VSC 339