The Queen v Starr[2010] QDC 350

DISTRICT COURT OF QUEENSLAND

THE COURT RESUMED AT 2.14 P.M. IN THE ABSENCE OF THE JURY

HIS HONOUR:  This is an application made after the presentation of an indictment against David John Starr at the commencement of a trial charging him with assault occasioning bodily harm, sexual assault, and robbery with personal violence. The purpose of the application is to exclude evidence obtained by the execution of a search warrant at the premises at which the accused was then living.

It is argued on behalf of the accused that the warrant was unlawful and a nullity because it did not specify the details of the place where it was to be executed. This is conceded by the Crown Prosecutor. The issue is whether I should exercise my discretion to exclude the evidence which has thereby been unlawfully obtained, and in particular, the evidence of the location of a gold-coloured chain to which a cross is attached. Mr Toweel, who appears for the accused, argues that I should exercise my discretion to exclude that evidence. Ms Lowry, the Crown Prosecutor, argues that I should not exclude the evidence in the circumstances of this case.

In order to address this application, it is relevant to summarise the background circumstances. For this purpose, I consider it is sufficient if I do so by setting out the information which was relied upon by plain clothes Senior Constable Walsh in the application for the issue of the search warrant.

While it may be that at trial, the evidence may emerge somewhat differently from this, it is nonetheless sufficient for the purposes of my current ruling. I note that this is a ruling which it is necessary for me to make during the course of a trial. As a consequence, the extent of my researches are limited to the authorities which have been referred to by both Counsel.

As set out in the application, the facts of this matter are as follows: At approximately 8.43 p.m. on the 31st day of August 2009, the police communications centre received a triple-O call from the victim, LT, who stated she was being attacked by an unknown male in the vicinity of Kent Street, New Farm. LT is a sex worker in the Fortitude Valley area.

Upon arrival by police, the complainant advised that she had been working as a prostitute outside number 92, Kent and Brunswick Streets when a white Toyota Camry approached and pulled up next to her, and the male driver said, "are you working?" She replied, "yes." He then told her to jump in. She then entered the vehicle outside 92 Kent Street, and sat in the front passenger seat.

She described the driver of the vehicle as a male Caucasian, late 40s, balding with combover, Donald Trump-style hair, and heavy set build. She then directed the male and drove with him to Teneriffe Drive at Teneriffe. They then pulled up in his vehicle across from number 37 Teneriffe Drive behind a blue Honda SUV parked in front.

The male unzipped his pants and the complainant placed a condom on his penis. She then said to him, "shall we sort the money side of things out first?" He responded by lunging at her in a violent and hostile manner. He grabbed her by the neck and pushed her head against the side of the passenger door. He groped at her breasts and tried to undo her jeans belt.

He had a hold of her neck and was squeezing, and continued to bang her head against the interior door frame. He forcefully rammed her head numerous times against the side door of the vehicle. He pinned her on her back, on the passenger seat, so that her head was against the door of the vehicle and her legs onto the driver's seat, and he was pinning her between her legs.

She began to hit the vehicle horn with her feet to call for assistance. The passenger door to the vehicle then opened during the scuffle and the male reached over her to attempt to close the door to prevent her from exiting the vehicle. She retaliated by jamming her elbow into the door frame and started kicking and attempting to gouge out the eyes of the male, causing him to bleed from the face.

He then attempted to squeeze her throat and ripped off a chain and pendant of a cross that she was wearing around her neck, and threw it on the ground of the vehicle on the driver's side floor. He dragged her out of the vehicle by the hair and continued punching her to the head and upper body. She commenced running up the hill on Tenerife Drive, yelling, "rape, rape," to call for assistance.

The suspect male followed her and shouted, "how can it be rape when your pants are up?" She then defended herself with her high-heel shoe and hit him more that once in the head with the heel of her sandal when he came at her again.

Residents in neighbouring houses were alerted to the commotion and started coming out of their houses, to give assistance to the complainant.  The suspect male then returned to his vehicle and drove off down the hill.  The complainant contacted triple O and started walking back towards Kent Street.  As she approached Kent and Brunswick, the male returned in the white Toyota Camry and approached her and drove slowly past her.

She again contacted triple O and alerted other sex workers in the vicinity, who were able to provide a partial registration number of the vehicle, as a white Toyota Camry, Queensland Registration, 789J.  The complainant had visible scratch marks to her neck, with redness and swelling and blood spatter staining on the forearm of her white Puma hoodie.  Once all information had been obtained, she was placed in a blue protective suit, to preserve the evidence on her and her clothing.

She then conducted a drive with detectives from Fortitude Valley CIB and identified the location where the incident had occurred.  A crime scene was then established at that location, the road cordoned and the scene processed by Scenes of Crime officers.  Extensive intelligence inquiries were conducted and a vehicle registration was identified.  A white Toyota Camry, 2005, Queensland Registration 789 JFS, was identified as being registered to a Shirley May Starr, of 6 Turner Street, Windsor.

Other persons listed at that address include a male, David John Starr.  Further inquiries identify that he is the son of Shirley Starr and is also listed as living at 6 Turner Street, Windsor.  A photoboard was compiled and an electronic recorded interview was then conducted with the complainant.  During the interview, she was shown the photoboard and she identified a photograph of David John Starr as the male who had been the driver of the white Toyota Camry and had attempted to rape her.  It was established that the vehicle was at 6 Turner Road, Windsor at 9.40 a.m. on 1 September 2009.

The application continued that a search warrant was sought under the Police Powers and Responsibilities Act, for the address at 6 Turner Road, Windsor, in order to recover the pair of shorts worn by the suspect, Starr, at the time of the offence and any other blood stained clothing which was worn at the time of the offence.

Detectives reasonably believed that the clothing would be located at 6 Turner Road, Windsor, the address of the suspect, David John Starr.  Detectives also sought to search the vehicle, white Toyota Camry, Queensland Registration, 789 JFS, said to be currently located at the address, to locate the gold coloured necklace, with the gold coloured cross, which was ripped from the complainant's neck and thrown on the front driver's side of the vehicle floor, by the suspect Starr.  Detectives reasonably believed that a search of 6 Turner Road and the vehicle nominated would recover evidence of the commission of the crime of attempted rape by the suspect, David John Starr.

In that application, the place to be searched was identified as 6 Turner Street, Windsor. 

Plainclothes Senior Constable Walsh became involved in this investigation at about 9.10 p.m. on 31 August 2009.  According to her evidence before me, she continued to work on this investigation until 4.00 a.m. on 1 September 2009.  After about three hours' sleep, she returned to work to continue the investigation at about 9.30 a.m. on 1 September 2009.

She prepared the application for search warrant, to which I have just referred, together with the search warrant during the course of that morning.  In her evidence at the committal proceedings, she said that she had been a plainclothes senior constable for the past three and a half years and during that time, she had prepared numerous search warrants.

Her evidence was that using pro forma documents in a package available to the Queensland Police Service, she prepared the application and then cut and pasted information from the application into the search warrant.  Each of these documents were printed out and she read the documents over before attending on a Justice of the Peace at the Magistrates Court, to make the application to issue the warrant.

A comparison of the application and the search warrant, which are in evidence before me, demonstrate that she did transfer some information from the application into the search warrant.  In particular, she transferred information as to the nature of the offence for which the warrant was to be issued.  She also transferred the details of the evidence that may be seized under the warrant, which in each document were described as "One gold coloured chain, with a gold coloured cross and blood stained shorts and any other blood stained clothing located at the dwelling, worn at the time of the offence".

However, she did not transfer the information as to the place to be searched, so that the details of the place as appear in the search warrant that was issued, are "Insert location of relevant place"; 6 Turner Street, Windsor, as a place to be searched, is mentioned at no place in the warrant.

According to Plainclothes Senior Constable Walsh' evidence, the failure to transfer this information as to the identity of the place from the application to the warrant, was an oversight which she considered was due to fatigue or as she also described it, sleep deprivation.

This oversight was not picked up by her prior to lodging the application and the search warrant with the Justice, who issued the warrant at 12.16 p.m. on 1 September 2009.  The Justice also failed to identify the omission from the search warrant and the omission was not identified at any stage by Plainclothes Senior Constable Walsh, before she arrived with other police at the residence of 6 Turner Street, at Windsor and executed the search warrant at approximately 1.30 p.m. on that date.

I note that her evidence was that she attended that address in the presence of other officers, including a number of officers who were not sleep deprived.  However as she was both the person who prepared and applied for the warrant, and also executed it, it does not appear that any other police officer reviewed the warrant before its execution.

During the execution of the warrant the accused identified clothing that he had been wearing on the previous night and that was handed to the police. Of more significance for the purposes of the current application is the fact that he directed Plain Clothes Senior Constable Walsh to the rear deck of the dwelling and showed her a gold coloured necklace with a gold coloured cross which was positioned on the windowsill ledge. He told her that he had found the necklace on the floor of the Toyota Camry by the front passenger door of the vehicle.

For completeness I note that when the police arrived at the residence at 6 Turner Street, Windsor, the white Toyota Camry, which was referred to in the search warrant, was outside the premises. As a consequence a separate crime scene warrant was issued in relation to the search and processing of that vehicle.

The necklace and gold cross was taken into possession by Plain Clothes Senior Constable Walsh and would be sought to be tendered by the prosecution as evidence in these proceedings, which would be relevant to the issue of the identification of the complainant's assailant.

The fundamental nature of the deficit in the search warrant that was issued and executed is demonstrated by reference to the provisions of the Police Powers and Responsibilities Act 2000. Section 150(1) empowers a police officer to apply for a warrant to enter and search a place. Section 151 empowers the issue of a search warrant only if the issuer is satisfied there are reasonable grounds for suspecting evidence of the commission of an offence, or confiscation related evidence is at the place or is likely to be taken to the place within the next 72 hours.

Section 156 requires a search warrant to state, amongst other things, that a police officer may exercise search warrant powers under the warrant. Section 157 provides that those search warrant powers include the power to enter the place stated in the warrant, which is referred to as the relevant place, and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and under section 157. Those powers are set out in the search warrant that was issued.

As I have observed, the Crown Prosecutor concedes that the warrant was not lawful and is a nullity. It follows that the search itself was unlawful. However as is identified in R v. Day & Anor [2008] QSC 358, a decision by A Lyons J, on 20 August 2008, the question that then arises is whether the evidence obtained in the unlawful search should be excluded in an exercise of the Court's discretion. On the basis of what her Honour said at paragraphs [32] and [33] of the judgment, there is a discretion to exclude evidence which stems from both the common law and statute law.

Section 130 of the Evidence Act 1977 (Qld) states:

"Nothing in this Act derogates from the power of the Court in a criminal proceeding to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence."

The question in this particular application is whether the evidence obtained as a result of the search should be excluded because there was no valid search warrant. The principles involved in a consideration of the discretion were outlined in R v. Ireland (1970) 126 CLR 321 and Bunning v. Cross (1978) 141 CLR 54 where it was held that even if the evidence was obtained unlawfully it is not for that reason alone inadmissible, and that in the exercise of the discretion, competing public interest must be weighed against each other. One such interest was the protection of the individual from the unlawful and unfair treatment. The competing public interests are often summarised in the following terms:

"The desirable goal of bringing to conviction the wrong doer and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law."  (Bunning v Cross (1978) 141 CLR 54, 74).

Before I address the factors involved in a consideration of the discretion, to exclude the evidence as they are outlined in Bunning -v- Cross, I observe that the observations made by her Honour, Holmes, J, in R -v- Adamic [2000] QSC 402, that even if the warrant in that case had been defective as a result of a technical insufficiency of the description of the premises in the warrant, it was not a case having regard to what was said in R -v- Edwards [1998], QCA 246, in which exclusion of the evidence would be warranted.

In both Adamic and Edwards, the deficiency in the warrant was a technical insufficiency in the description of the land or premises to which the warrant applied. The observations in Edwards, at page 8, should be viewed in that light, where the Court says:

"The premises need be identified only with reasonable particularity and in a criminal trial, the evidence obtained by means of a search warrant that is defective simply because the address is incorrect, will not be excluded if the error is of a technical nature only and without any police misconduct".

In the present case, the error is not of a technical nature only, but relates to the entire basis on which the warrant has been issued. In the absence of a location at which the warrant was to be executed and the search to occur, the entire basis for the warrant was wrong.

With reference to the factors in Bunning -v- Cross, the first is whether the unlawfulness or illegality was the result of a mistake or is a deliberate or reckless disregard of the law. On one view of the evidence, as Plainclothes Senior Constable Walsh testified, the invalidity arose from a mistake or oversight by her in circumstances where she was fatigued. However, a degree of a reckless disregard of the law, cannot be excluded in this case.

The fact is, as identified by Mr Toweel in his submissions, she, being aware of the requirements of a warrant, had a number of opportunities to ensure that the warrant complied with law. The first was at the time she drafted it; the second was at the time that she took it to the Justice for consideration as to whether it would be issued and when she received it back from the Justice and finally, when she executed the warrant.

While it can also be said that the issue of the warrant by the Justice in the circumstances was also attended by a degree of recklessness, the fact is that the police officer had the opportunity between the time that the warrant was issued at 12.16 and the time that it was executed at 1.30 p.m. on the same date, to ensure that the warrant was checked, so that it complied with the law.

The second factor is the cogency of the contested evidence. In this case, as Ms Loury submits for the Crown, the evidence of the necklace and cross, is cogent and reliable evidence. Although as stated in Bunning -v- Cross, cogency should generally be allowed to play no part in the exercise of discretion where the illegality involved in procuring it, is intentionally reckless. In any event, even where the illegality arises only from mistake and is neither deliberate nor reckless, if there is other equally cogent evidence untainted by illegality available to the Prosecution at the trial, the case for the admission of evidence illegally obtained, will be the weaker.

In this case, on my understanding of the evidence available to the Crown on the issue of the identification of the accused as the assailant of the complainant, in the absence of evidence of the location of the necklace and cross in his possession, there is other evidence confirmatory of his identification.

In particular, the evidence of Ms Wilson from the John Tonge Centre, that a specimen which gave a presumptive positive reading for blood taken from the long sleeved top which the complainant was said to be wearing at the time of the alleged attack, gave a full DNA profile which matched the reference sample of the DNA profile of the accused. It is estimated that the probability of this DNA profile occurring, had this DNA come from someone other than and unrelated to him, is approximately one in 7,400 billion, based on Queensland Caucasian data.

A third consideration which arises from Bunning v Cross is the ease with which the law might have been complied with in procuring the evidence in question. It is conceded by Ms Loury that the law could easily have been complied with in this case.

A fourth and important factor is the nature of the offence. There is no doubt that the three offences with which the accused is charged, while not the most serious of criminal offences, are nonetheless serious offences.

Finally, it is a relevant consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature to narrowly restrict the police in their power. This is a factor favouring rejection of the evidence. I consider the Police Powers and Responsibilities Act, particularly with reference to the circumstances in which search warrants may be obtained, is such legislation.

Balancing these factors in circumstances where the defect in the warrant is not merely a technical one, but is fundamental to the basis on which it has been issued and executed so that basis was wrong, and having regard to the fact that the purported use of the power entailed the invasion of the privacy of citizens I consider the error is of such proportions as to tilt the balance of public interest against the receipt of the evidence so obtained.

Having weighed up the factors that I am required to consider, I am satisfied that in the present case the important public interest in the protection of the individual from unfair treatment should prevail because to do otherwise would give encouragement to officers whose task it is to uphold the law to approach the question of the issue of search warrants in the manner which has occurred in this case.

Having come to this conclusion, I am nonetheless sympathetic to the position of police officers such as Plain Clothes Senior Constable Walsh who have a difficult job to do. I recognise that she was tired at the time that she made this application with the associated error, but nonetheless, as Mr Toweel has pointed out, despite her level of tiredness she was able to provide a detailed application in support of the warrant. The details of that application have been read into the record as part of this decision and in my view she was sufficiently in possession of her faculties to do so and to be able to transfer other information in that application into the search warrant. In the circumstances I exclude the evidence which has been obtained by virtue of the execution of that search warrant.