R v Tanner (No 2)[2015] QDC 267

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is charged with drug offences, namely trafficking, possession of dangerous drugs and possession of a thing used in connection with a dangerous drug. All of the offences involved the dangerous drug cannabis sativa.

The first judgment

2. [2]
   On a previous application, I excluded a record of interview conducted between the applicant and the police: R v Tanner [2014] QDC 275. In that judgment I indicated at [39] that the search warrant was not lawfully issued, because the police officer making the application to the magistrate for the issue of the search warrant did not provide material to the magistrate that had been sworn on information and belief, the police officer not having first hand knowledge of the relevant facts.

3. [3]
   Whilst that is a conclusion agreed between the parties, the respondent asserts that no specific ruling was made on that point and the matter had not been finally determined.

Issue

4. [4]
   The evidence relates to text messages found on a mobile phone in the course of the search of the applicant’s residence.

Submissions

5. [5]
   Mr Collins submitted that the search was unlawful and that the issue was disposed of in the previous judgment - at least by inference in a holistic sense, if not directly and specifically. He submitted that this was not a case calling for an exercise of the Bunning v Cross discretion and that I should in all the circumstances refuse to admit the evidence unlawfully obtained in the search.

6. [6]
   Mr Moore’s submission is that there was no deliberate disregard of the law by the police officers but merely an oversight brought about by the lack of knowledge of some of them of the law. Further, he submitted that the offences were serious and that the text messages speak for themselves as to drug related conduct amounting to trafficking in cannabis. Finally, Mr Moore submitted that viewed objectively, there was a possibility that the evidence could have been destroyed had the police not acted immediately, because they had alerted the applicant to their interest in his conduct. He submitted that the impugned evidence was of itself now critical to the prosecution case.

Discussion

7. [7]
   In Bunning v Cross (1977-1978) 141 CLR 54, Stephen and Aitken JJ cited the observations of the Chief Justice in R v Ireland (1970) 126 CLR 321 at 335, as representing the law in Australia in respect of unlawfully obtained evidence:

“Whenever such unlawfulness and unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand is the public interest and the protection of the individual for unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price hence the judicial discretion.”

8. [8]
   Their Honours continued, at 74:

“What Ireland involves is no simple question of ensuring fairness to an accused, but instead the weighing against each other of two competing requirements of public policy thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those who task it is to enforce the law.”

9. [9]
   Bunning v Cross has been the subject of authoritative judicial consideration in many cases over the years since the judgment was made, including more recently in four decisions of the Supreme Court of Queensland.

10. [10]
    In R v Munck [2010] QSC 416, Philippides J (as she then was) discussed the judicial discretion in the following terms:

“[37] As Holmes J [as she then was] stated in R v Christensen [2005] QSC 279, in a passage adopted by Lyons J in Day at [15]:

‘The importance of strict adherence to statutory requirements in the context of search warrants has repeatedly been emphasised … however, the purported use of the power which entailed the invasion of the privacy of citizens to such an extent, with so little regard for what was actually committed by the statutory provisions, is an error of such proportions as to tilt the balance of public interest against the receipt of evidence so obtained.’

[38] I also endorse those comments and also note the observations made in New South Wales v Corbett (2007) 172 ACrimR 555 at 578, where the High Court also considered the importance of adhering of statutory requirements, stating:

‘Obviously each statutory requirement or condition needs to be construed on its own terms and by reference to the statute in which it is to be found … the concern of the common law courts to avoid general warrants and to strictly confine any exception to the principle that a person’s home was inviolable as the original source of common, although differently expressed, statutory requirements.’”

11. [11]
    In R v Versac (2013) 227 ACrimR 569 at paragraph [6], Applegarth J set out seven relevant considerations of the exercise of the Bunning v Cross discretion: 

“[6] Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:

1. (a)
   whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;

1. (b)
   the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;

1. (c)
   the importance of the evidence in the proceeding;

1. (d)
   the nature and seriousness of the offence;

1. (e)
   the nature of the unlawful conduct;

1. (f)
   whether such conduct is encouraged or tolerated by those in higher authority in the police force; and

1. (g)
   how easy it would have been to comply with the law.”

12. [12]
    In R v Pohl [2014] QSC 173, Daubney J excluded evidence of a significant quantity of cocaine obtained in a search.  His Honour made the following observation:

“[33] Despite the cogency of the evidence and seriousness of the alleged offence, I have concluded that this is an appropriate case for the exercise of the discretion to exclude the evidence. It is clear from the evidence of the two officers that the situation is not one where an emergent search was required to prevent the disappearance of the evidence. A warrant could easily have been obtained and the law complied with. The evidence is, to adopt the time honoured phrase, ‘the tainted fruits of unlawful conduct’, and this is a case in which the evidence could easily have been lawfully obtained:  there is a clear public interest in protecting individuals from unlawful and unfair treatment. The factors which tend to support the commission of this evidence are not, in my opinion, sufficient to displace that public interest.”

13. [13]
    In R v Toon [2015] QSC 117, the police had taken possession of car keys from a person detained in the course of a search and the unlock button on the keys was used to locate a particular motor vehicle. Other more experienced police officers came to the scene and used the keys to open the particular vehicle and search it. A large quantity of methylamphetamines was found. Henry J found that the search was unlawful because the vehicle was not detained. 

14. [14]
    The respondent did not take issue with that finding. His Honour considered the evidence was critical to the prosecution case and that this was a consideration that favoured admission of the evidence unlawfully obtained. The quality of the offending conduct was also serious. The quantity of pure methylamphetamines was significant. However, his Honour did not consider those matters to be the only considerations. There was a failure to properly swear the information placed before the magistrate for the issue of the search warrant and the evidence sought to be led was comprised of text messages in a mobile phone which was said to be indicative of guilt. Nevertheless, on a consideration of the competing interests and a proper analysis of them, his Honour excluded the impugned evidence.

15. [15]
    In the present case, the police officers involved in the search had a mix of experience. The search was part of a training exercise. However, as a training platform that part of the investigation clearly failed in its intent: see paragraphs [21], [25] to [27] in R v Tanner [2014] QD 275 where I have made reference to that issue. 

16. [16]
    The circumstances in this case are that the search conducted by the police officers in its entirety, was unlawful.

17. [17]
    In so far as the exercise of a discretion to admit the evidence despite its unlawfulness is concerned, I consider the conduct of the experienced police officers, at least to have been careless. It was, in the context of a training exercise where one ought to expect faithful compliance with the law, not merely a matter involving mere oversight or accidental non-compliance.

18. [18]
    Trafficking in dangerous drugs is a serious offence per se, but the trafficking here is in respect of cannabis and is at the lower end of the scale, if indeed it is sufficiently cogent to enable the trafficking charge to be proved at all. Whilst the evidence is critical to the prosecution case, the statutory legal requirements for a lawful search were relatively simple to comply with.

19. [19]
    Further, in my judgment in the previous application, I found that the record of interview conducted between the police and the applicant was made in a way that statements made against interest by the applicant were not made voluntarily and I excluded the record of interview.

20. [20]
    One cannot escape the inevitable conclusion that the whole of this investigation was tainted by conduct that was unlawful.

Conclusion

21. [21]
    I decline to exercise my discretion to admit the evidence unlawfully obtained, comprised by the mobile phone text messages. The evidence is excluded.

Orders

22. [22]
    1.  Application granted.

2. Evidence comprised by mobile phone text messages in a search conducted on 10 January 2013, is excluded.