R v Wilkinson[2016] QDC 199

DISTRICT COURT OF QUEENSLAND

1. [1]
   By an indictment presented in the District Court at Hervey Bay, on 12 November 2015, the applicant is charged with the offence of armed robbery, committed on 13 June 2014.

2. [2]
   In respect of that indictment, the applicant has sought pre-trial rulings.^[1]  Although and in the formal written application and in various written outlines of argument which have been filed,^[2] various contentions have been raised or adverted to, when this matter came on for hearing on 3 May 2016, at Maroochydore,^[3] the applicant only pursued contentions that sought the exclusion of the following evidence, at her trial:

1. (a)
   the evidence obtained from and as a result of the search by police of the applicant’s premises;

2. (b)
   the photoboard identification process involving the witness Judith Mallory; and

3. (c)
   the evidence of the witness Sergeant Brett Schnitzerling.

The prosecution case

3. [3]
   It is first convenient to set out a broad summary of the prosecution case.

4. [4]
   The offence with which the applicant is charged, is alleged to have occurred shortly before 3:43pm on Monday 30 June 2014, at a convenience store located at 127 Cypress Street, Torquay. As is captured on a CCTV recording, the 55 year old female complainant, Ms O'Brien, was, after coming from a back office in the store, accosted by a person holding a knife at about hip height. The knife was pointed in the direction of Ms O'Brien and thrust or moved towards her when the demand “give me your money” was repeated by the assailant. As a response, Ms O'Brien moved behind the counter and to the till, followed closely by her assailant and she opened the till, to allow the offender to remove money and then run from the store. Ms O'Brien rang ‘000’ and this call was recorded at 3:43pm.

5. [5]
   There is some discrepancy with the timestamping on the CCTV footage from the store and the apparently earlier recorded timestamp is sought to be explained by a power outage, which had caused an approximate discrepancy of 15 minutes.^[4] 

6. [6]
   The prosecution case also relies upon an additional CCTV recording, from a camera located outside the Happy Wanderer Village, 105 Truro Street, Torquay and which depicts the applicant’s blue 1999 Hyundai Excel (number plate 852FDA), being driven past that location, in a westerly direction on Truro Street, at about 3:45pm on the same day. It may be noted that the location of the Happy Wanderer Village, in Truro Street, is near to and within about 2kms of the scene of the offence and that the direction of travel described, is consistent with movement towards the place of residence of the applicant, which was later identified as 419-429 Boat Harbour Drive, Torquay.^[5] 

7. [7]
   On the prosecution case, the additional CCTV recording of the defendant’s car in Truro Street, is said to be of particular relevance, in the context of the following evidence:

1. (a)
   Ms O'Brien described the offender as:

“…a female, around 17-18 years of age, 5 foot 3 or 5 foot 4 inches tall, slight build, white skin wearing a grey hooded jumper with the hood over her head and a word in capital letters running across the chest that was black in colour though I’m not sure what the word was.  She had a piece of black cloth also covering her face, only exposing her eyes and forehead.  She had dark coloured eyes and dark eyebrows.  She was also wearing dark coloured full length jeans and light coloured skate shoes.”^[6]

Ms O'Brien also described her assailant’s knife as being “a steak knife, approximately ten inches long with a brown coloured handle, silver blade and serrated edges”^[7] and that her assailant’s “voice was well spoken, sounded young with an Australian accent”.^[8]

2. (b)
   Another witness, Ms Mallory, gave the following description of her observations, including of a young woman she had seen in Brown Street and therefore near the scene of the offence,^[9] as she approached the Cypress Street store and very shortly before she entered to then learn of the offence that had just occurred:

“6. When I walked along Cunningham Street I saw a car that was parked on Brown Street, outside of a house that is on the corner of Cunningham Street…

7. I would describe this car as a small green bubble car, dark green in colour.  I don’t know the make of the vehicle or how many doors it had but I looked at the vehicle and didn’t see anyone in this car.  I think it may have had “P” plates on it but I’m not 100% sure.

8. I continued to walk along Brown Street on my left hand side of the road towards The Shop and I saw a person walking from the entrance to “The Shop” and walk along the footpath on their left hand side of the road, towards the small green car I described.

9. This person was wearing dark full length jeans and a dark coloured hooded jumper with the hood pulled over their head. 

10. As this person was walking towards this vehicle, the hood fell backwards off their head, exposing their face to me.  It was at this stage I could see this person was a female. 

11. I would describe this female as being about 5 foot 8 inches, about 25 years old, slim build, fair coloured skin with dark hair but I couldn’t see how long her hair was because it was tucked into the hooded jumper.  I didn’t notice any distinguishing features to her face. 

12. When I saw this female’s face, she was approximately 20m away from me, it was a clear day and there was nothing blocking my view of her. 

13. When the hood fell backwards, she immediately pulled the hood back onto her head and sprinted towards the small green car. 

14. I didn’t watch her get into the green car but I heard what sounded like a thud of a car door and a car driving away.  I looked back towards where the small green car was and saw it was now gone.”^[10]

3. (c)
   Ms Jennifer Pavey was driving, with her 14 year old daughter Emma as a front seat passenger, in a northerly direction in Brown Street, Torquay, when, at the intersection of Brown and Cunningham Streets, she observed one other vehicle in her vicinity.  She described it as a small hatchback, similar to a Hyundai Excel and that it was “a dark green/blue teal coloured vehicle”.^[11]  She observed a single female occupant or driver and that the vehicle had red “P” plates attached “front and rear”.^[12]  Her attention was drawn by this other car coming out of Brown Street, quickly and almost colliding with her car, as she was turning left into Cunningham Street.  As she followed the vehicle in Cunningham Street and in turning left into Ann Street and then right into Truro Street and along Truro Street, she observed the other vehicle being driven “excessively” or “quite fast”.^[13]  She had also observed something hanging down from the roof, inside the car and on the passenger side.

4. (d)
   These observations are largely confirmed by Emma Pavey.  Although, she added an observation of a female (who she described as wearing grey tracksuit pants and a baggy jumper or hoodie that was black and “like old joggers” and as petite and 17 or 18 years old) getting into the car, before driving it away and in front of the car being driven by her mother.  Emma Pavey described the car as being like a Hyundai Excel^[14] and that the colour was: “Like a tealy blue.  Like a darker teal though” and that “the paintwork had faded quite a bit”  and that the car had “pretty dirty” rims that were “pretty much solid”.^[15] 

5. (e)
   Mr Taylor, on 3 June 2014 and after making a telephone call on his mobile telephone that lasted 58 seconds and was timed at 3:29pm, left from near the Cunningham Street and Ann Street intersection, in order to get fuel from a Caltex service station in Elizabeth Street.^[16]  However, by the time he arrived at the intersection of Shell and Elizabeth Streets, he realised that he had forgotten some jerry cans that he planned to fill and headed back in a westerly direction along Cunningham Street and observed “a dark green, small two door car with a boot at the corner of Brown Street and Cunningham Street… also facing west”.^[17]  In his statement dated 1 July 2014 he said:

“I am 90% sure that the vehicle was a Hyundai Excel with a well-worn paint job and the vehicle was not well looked after.”^[18]

He further described that the driver of the vehicle was a female who was looking around and had “long brown wavy hair down to her shoulders”^[19] and that she was “white/Caucasian”^[20] and that he “thought she was in her 20’s”.^[21]  He observed a “grey coloured top and perhaps some red colour as well”.^[22]  After he went past, he looked in his rear vision mirror and noticed that the driver of the vehicle had completed a U-turn and then “drove off east along Cunningham Street”.^[23]

8. [8]
   For the applicant, it was contended that particularly having regard to Mr Taylor’s evidence and the images of the applicant’s car, as recorded on the CCTV in Truro Street and in the photos taken by the police, which depicts the car to be blue in colour and without an appearance of having weathered paint, left open a reasonable conclusion that the applicant’s vehicle is not the same vehicle as was used by the robber and that the confirmed presence of the applicant’s vehicle in Truro Street was mere coincidence.^[24]  It is also pointed out that each of the prosecution witnesses, Emma Pavey and Mr Taylor, were shown photographs of the applicant’s car during the committal proceedings and testified that that car did not look like the one they had seen.^[25] 

9. [9]
   However and on the evidence, the confirmed sighting of the applicant’s vehicle in Truro Street is, particularly on the evidence of the Paveys, traced back to Brown Street and a jury could conclude, is linked to the immediate aftermath of the offence, as also described by Ms Mallory. Moreover and as far as Mr Taylor’s evidence is concerned, a jury may well accept the prosecution’s contention that his observations relate to the arrival at, rather than the departure of the applicant from, Brown Street.

10. [10]
    In addition to this, the circumstantial prosecution case is also reliant upon proof of the following facts:

1. (a)
   The Hyundai Excel (number plate 852FDA) was registered to the applicant at 419-429 Boat Harbour Drive, Torquay.  This was later identified as the location of the Urimbirra Retirement Village;

2. (b)
   On 1 July 2014, this car and the applicant were located at that retirement village (albeit not at Unit 17, as was first thought to be her place of residence but rather at the manager’s unit, where her parents also resided) and ultimately in a search of the applicant’s bedroom there, police located (amongst other things):^[26]

• what is described as a dark grey hooded jumper, with the word “NIRVANA”, in capital letters, across the chest, with other markings;

• a pair of skate-style shoes; and

• a wooden handled knife with a straight edge, in a sheath.

A pair of blue full length jeans were also located in the bathroom and a piece of black cloth and the applicant’s driver’s license were later located in the vehicle, which was found parked near the manager’s unit and also found to have P plates attached and “fluffy dice hanging from the rear vision mirror”.^[27]

The evidence of Sergeant Schnitzerling

11. [11]
    Particularly through the evidence of Sergeant Schnitzerling, the prosecution intend to compare the images of the applicant’s car with those captured by CCTV in Truro Street and also, the similarity of the clothing and disguise worn by the robber and as depicted in the CCTV images recorded at the scene of the offence, with the clothing and other things located at the applicant’s residence.^[28]  Of particular interest in that respect, are the images which display a similarity to the markings on the grey hoodie, including the word “NIRVANA”. 

12. [12]
    The applicant seeks the exclusion of this evidence on the basis:

“That the evidence of the witness Sergeant Brett Schnitzerling be excluded on the grounds that the proposed evidence is irrelevant, irrelevant opinion evidence and/or risks confusing or misleading the jury.”^[29]

13. [13]
    Subsequently and in reference to what is described as a statement that had been obtained from Sergeant Schnitzerling “of the Queensland Police Service photographic section”, the following is observed:

“The evidence in that statement purports to provide some explanation of the effect lighting has on a camera’s ability to record the colour of an object.  In that statement, Schnitzerling purports to replicate certain images taken from CCTV footage of the robbery herein.  Further, Schnitzerling offers for comparison those images he has extracted.” ^[30]

The applicant’s objection to that evidence is then said to be:

“On the grounds that the proposed evidence:

1. (a)
   Is irrelevant opinion evidence;

2. (b)
   Is not otherwise justified as relevant expert opinion evidence;

3. (c)
   Involves risk that manipulation of the primary evidence contained in the CCTV footage could mislead the jury in the assessment of the photographic evidence; and

4. (d)
   No basis for its admissibility is otherwise apparent.”^[31]

14. [14]
    Although these contentions were included in the applicant’s final written submissions, prepared after the hearing of this application on 3 May 2016, they are not the subject of any detailed elaboration. This is unsurprising. As the respondent points out, on 3 May 2016 and in the course of identifying the issues to be litigated, it was noted that the prosecution were not in a position to deal with any objection to this evidence, because a statement remained outstanding, due to the illness of this witness and also his unavailability to then give evidence.^[32] And it was then understood that any question of the admissibility of this evidence was to be put aside, to be dealt with separately.^[33]

15. [15]
    Whilst there had, on 3 May 2016, been some discussion in identification of the effect of the evidence that the prosecution may seek to lead from this witness and issues to be raised in respect of it,^[34] that was without the benefit of any precise identification or proof of the evidence to be relied upon. As is noted in the respondent’s last written submissions,^[35] a statement of this witness, dated 9 June 2016, which particularly clarifies his experience and training in respect of photography and photographic imagery, has become available since the last written submissions of the applicant.

16. [16]
    Accordingly, it will be necessary to return to the question as to how and when any separate question that remains in respect of the evidence to be led from Mr Schnitzerling, is to be determined, when the questions litigated on 3 May 2016, are determined.^[36]

17. [17]
    However, it may now be noted that the prosecution identifies that the evidence of this witness comprises three aspects:

1. (a)
   First, a PowerPoint presentation presenting side-by-side comparison of still images, including still images obtained from CCTV footage in which some images have been cropped or enlarged for assistance of comparison.^[37]

2. (b)
   Secondly, he seeks to explain colour differentiation which may be apparent in aspects of the CCTV footage from the store, in terms of variation in scales of grey due to the presence of natural light;^[38] and

3. (c)
   Thirdly, he purports to express an opinion as to the similarity of that clothing to that located upon search of the applicant’s residence.^[39]

18. [18]
    It can be observed that it remains to be seen whether any objection to the first and second aspects is persisted with, having regard to what is now disclosed as to the witness’ training and experience in respect of matters to which his evidence is directed, the techniques he has utilised and consideration as to whether what is proposed, in the first instance, is use of contemporary technology to present and assist in a comparison exercise that could otherwise be done at the trial or by the jury. And in respect of the third aspect, it will remain to be seen whether the prosecution does seek to lead such evidence, in light of the rule that may prevent opinion as to matters which are within common experience and therefore, matters for the jury.^[40]

The evidence of Ms Mallory re: a photoboard

19. [19]
    The applicant seeks the exclusion of what is described as “a purported photoboard identification of the applicant” by Ms Mallory, on 6 May 2015, on the following grounds:

“(a)  No true identification of the appellant is made during such identification process;

2. (b)
   The witness Mallory indicated, initially, a photograph of a person other than the applicant during the identification process;

3. (c)
   It appears the witness Mallory approached the identification process as a process of deduction with expectation that the photo-board contained a photo-board of the person Police believed committed the offence herein;

4. (d)
   The photo-board identification process occurred 11 months after the witness’s sighting of the offender at the time of the alleged offence;

4. (d)
   The witness Mallory did not take note of the alleged offender and obtained merely a fleeting glimpse of the offender;

5. (e)
   The evidence of the purported identification is of little probative weight but is prejudicial in that the jury might attribute too much weight to it; and

6. (f)
   The purported identification is so generalised and equivocal in nature that it should be regarded as valueless and therefore irrelevant and inadmissible.”^[41]

20. [20]
    Accordingly, the applicant seeks that the recording of Ms Mallory’s observations upon her consideration of the photoboard containing 12 photos of young women (including the applicant at position two) and that photoboard,^[42] be excluded as evidence at her trial. 

21. [21]
    At the outset, it should be noted that the prosecution does not seek to rely on this as evidence of “positive identification” but rather, as “circumstantial evidence supporting other evidence of identification”.^[43]  That description is drawn from R v Nami.^[44]  However and unlike the situation here, in that case, a similar description was used in reference to a situation where, in addition to evidence of positive identification of the offender as a particular man with whom the victim and her boyfriend had interacted earlier in a hostel, there was also reliance upon evidence that those complainants had chosen a photocopied photograph of the appellant “as looking like the offender”.^[45]

22. [22]
    In this case, the situation is quite different and the evidence of Ms Mallory is the only evidence relied upon as providing identification of the appellant as the offender, by appearance, as opposed to identification by way of inference from circumstantial evidence.

23. [23]
    Neither is the present situation like that in another authority relied upon by the prosecution: R v Brown.^[46]  Notwithstanding that it was noted, in that case, that there had been no objection to the admission of the evidence, as an apparent tactical decision,^[47] it was there recognised, by reference to the decision in R v Pitkin^[48] and subsequent observations in Festa v R,^[49] that evidence such as the selection of “a person similar to two, seven and twelve”, may be relevant and admissible as part of a broader circumstantial case, or as a circumstance supportive of other direct evidence implicating a defendant. 

24. [24]
    However, the evidence in this case, is much more problematic and beset by equivocation. On 6 May 2015 and therefore in excess of 10 months after her fleeting sighting of a person, contended on the prosecution case to be the offender leaving the scene of the offence, Ms Mallory was asked to view a compilation of 12 photographs of young women, printed on a sheet of paper.^[50]  A photograph of the applicant was included at position two.  However and at no stage does Ms Mallory expressly select or identify any characteristic of the applicant’s photograph. 

25. [25]
    The witness was introduced to the process by the police officer who conducted and recorded it, as follows and after it was confirmed that she had not been previously shown any photographs or given any indication as to any suspect in respect of the offence:

“Now I have here a photo-board which contains the photographs of twelve female persons.  Now I’d like you to have a look at the photo-board and tell me if you recognise any person.  If you do recognise any person, could you state the number of the box that the person is contained in?  Right, so it’s in that sealed envelope.  So just do your best.  Um, take as long as you need.  There’s no time limit.  Okay?”^[51]

Initially and upon viewing the compilation, Ms Mallory indicated that she was unsure and then there is this exchange:

“SCON WHEELER:  That’s fine, no I understand that it has been some time.  And again, there’s no time limit.  You can take as long as you want

 MALLORY:   Like I said, I can’t recall.

 SCON WHEELER:  That’s fine. 

 MALLORY:   But, but maybe number twelve.”^[52]

After she again stated that she was unsure, Ms Mallory was told:

“That’s fine.  And there’s no pressure, you don’t have to pick a number.  Um, you don’t have to pick a person in the photo-board… You can take as long as you want to view it, and if you’re confident that you recognise a particular person there you can let me know.  If not, then that’s fine as well.”^[53]

And she responded:

“I’m just saying that maybe number twelve.”^[54]

26. [26]
    Following that, Ms Mallory was asked for the “reason you feel that way”; and she responded:

“Um, just because I can see, see the face.”^[55]

However, she shortly after that, equivocated:

“She seemed to have a thinner face, but.”^[56]

She was reassured to take her time and responded:

“It doesn’t matter how much time I take, I, I can eliminate most of those.  The only one that comes close is…”^[57]

Then and after further discussion in which Ms Mallory expressed concern about putting her finger on the wrong person and indicating that she had not taken much notice in watching the person come from the store,^[58] she was then asked if she was:

“happy to say… that it is number twelve that you recognise from the corner store”.^[59] 

Unsurprisingly, Ms Mallory’s response was:

“I don’t recognise her from the corner store but I’d say that out of all of those, she would be the closest.”^[60]

Then and after Ms Mallory was again invited to sign the back of the photoboard to indicate that and she expressed some concern about not bringing any danger on herself, there is the following passage:

“SCON WHEELER:  There’s no pressure from me, you don’t have to do it. 

MALLORY:   See I’m just trying to, to picture them. 

SCON WHEELER:  Mmm. 

MALLORY:   Picture a couple of them with the hoodies.

SCON WHEELER:  And that’s what--

MALLORY:   And stuff--

SCON WHEELER:  I’m saying, you know, take your time.  S-, there’s no rush here.

MALLORY:  I look at this lady, I try to picture hoodies on them, I.

SCON WHEELER:  Um, um you pointed towards um which number?

MALLORY:  Number two.

SCON WHEELER:  Number two?

MALLORY:  Um I can’t I’m sorry, I can’t be positive.

SCON WHEELER:  That’s fine.  And well, and I’ll ask the same, n-, question, um, why are you leaning towards number two?

MALLORY:  Um—

SCON WHEELER:  What makes you think that?

MALLORY:  Well if you take the lipstick off her and put a hoodie on her, but her face just with the eyes wider opened.  Um I don’t know, I, I still go for number twelve but I’m, I’m.

SCON WHEELER:  [INDISTINCT]—

MALLORY:  This is terrible.  I can’t--

SCON WHEELER:  Mmm.  No, and I-, look there’s no pressure from me, I, and I understand--

MALLORY:  Yeah. 

SCON WHEELER:  It was some time ago now.  So, um, and you’re doing a really--

MALLORY:  And like I--

SCON WHEELER:  Good job.

MALLORY:  Said, it was, I was walking past, I didn’t--

SCON WHEELER:  Yeah.

MALLORY:  Take any--

SCON WHEELER:  Yep.

MALLORY:  Notice.  No, see I could be completely wrong could be any of them.  I don’t know.  I’m just saying if everyone had a hoodie--

SCON WHEELER:  Yeah.  Well so far you’ve indicated number twelve, or number two.  Um, if you’re happy with that, what I’ll get you to do is just to sign the back, ah, of that photo-board.  Um I don’t see any reason why you can’t say number twelve or number two.  Um, sign and date it and um--

MALLORY:  [INDISTINCT].  Mmm.

SCON WHEELER:  Is that alright?

MALLORY:  Yeah, I just, makes me ill, that’s all, um.

SCON WHEELER:  Did you want to have a further look at this?

MALLORY:  There’s nothing more I can say--

SCON WHEELER:  Okay.

MALLORY:  Honestly.”^[61]

27. [27]
    After that, Ms Mallory was invited to (and did) endorse the rear of the compilation, to write: “12 – 2” and to sign and date it. However, it can also be noted that in the course of subsequent discussion, Ms Mallory also said:

“I feel sick for doing this.  I mean, I could be wrong.”^[62]

28. [28]
    The evident problem is that it is at least doubtful that Ms Mallory, at any stage, purported to identify any likeness or similarity of the applicant’s photograph in position 2 and her final endorsement is obviously affected by the input of the police officer. At best for the respondent, the evidence is equivocal and as such, is so lacking in probative value as to be practically worthless.

29. [29]
    However, it is the respondent’s intention to seek to rely upon this evidence as indicating some selection of likeness or similarity in the applicant’s photograph. In the circumstances, this would be to invite potential misuse of the evidence by invitation to use the evidence beyond its true probative value and such as to amount to a recognised prejudicial effect, out of proportion to any slight probative value that the evidence may have. And to, accordingly, warrant exclusion in the exercise of judicial discretion.^[63]

30. [30]
    An alternative and perhaps more fundamental view, in these circumstances, is that the evidence is so lacking in probative value, or worthless, as to be irrelevant. That is, in terms of the description given by Gleeson CJ in HML v R:^[64] “it could not rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings”.

31. [31]
    In any event, it is clear that this evidence should not be received but rather, excluded at the trial of the applicant.

Evidence obtained by search

32. [32]
    The remaining application is for the exclusion of the evidence obtained by a search conducted at the place then acknowledged by the applicant to be her place of residence, at the manager’s unit at the Urimbirra Retirement Village at 419-429 Boat Harbour Drive, Torquay, on 1 July 2014. The grounds of the application are set out as follows:

“(a)  The searching officer, DSC Glen James Dehnert, did not hold a reasonable suspicion that evidence may be concealed or destroyed unless the premises was immediately entered and searched by the searching officer as required by the Police Powers and Responsibilities Act 2000 (PPRA) s. 160;

2. (b)
   The searching officer, Dehnert, who purportedly exercised the search pursuant to the PPRA s. 160 did not apply for a post search approval as required by s. 161 of the PPRA;

3. (c)
   The post search approval made by magistrate Tatnell on 7 July 2014 should not have been made because it was not made by the proper Police officer and it materially misrepresented the bases upon which the searching officer exercised the power of search;

4. (d)
   The searching officer failed to have proper regard to the reasonably available alternative of obtaining a search warrant before conducting the search pursuant to s. 160 of the PPRA;

5. (e)
   Entry gained by Police to the applicant’s premises was obtained by misrepresentation that Police were acting under authority of a search warrant; and

6. (f)
   The applicant did not consent to the search of her premises.”^[65]

33. [33]
    The underlying basis of that application is in an exercise of discretion, having regard to public policy considerations, as recognised in Bunning v Cross,^[66] upon the contentions that the search was not conducted in accordance with legal requirements and/or that the obtaining of the post-search approval was also illegal.  Accordingly, the applicant bears the onus of satisfying the Court that there was an illegal search and/or that the post-search approval was obtained illegally and that it is appropriate to exercise judicial discretion to exclude the evidence obtained by any such illegality or absence of lawful authority.^[67] 

34. [34]
    In the first instance, the question as to the legality of the search arises because it was not conducted pursuant to any valid warrant to do so.^[68]  That is because the evidence establishes that:

1. (a)
   After establishing that the vehicle observed on CCTV footage from Truro Street, was registered to the defendant and her place of residence at the Urimbirra Retirement Village at 419-429 Boat Harbour Drive, Torquay, the principal police investigators, DSC Dehnert and PCSC Wheeler, went to that address, on 1 July 2014. Then and on the basis of brief inquiry of two elderly females at the retirement village, they believed that the defendant resided at unit 17 and they then returned to the Hervey Bay Police Station and prepared an application and obtained a warrant to search unit 17;

2. (b)
   However and upon return to unit 17 at the Urimbirra Retirement Village, with other police offices, they found that unit unoccupied and it is clear (as was contemporaneously noted and later recorded in a statement by PCSC Wheeler) they were:

“Informed by a neighbour that the defendant now resides at the manager’s residence”;^[69]

3. (c)
   The police officers then went to the manager’s unit and when Wheeler knocked on the front door, this was answered by the applicant and the police officers then engaged with her, before conducting a search of that unit, including the room acknowledged by her to be her bedroom; and

4. (d)
   Subsequently and on 2 July 2014, PCSC Wheeler made application for a post-search approval order, pursuant to s 161 of the Police Powers and Responsibilities Act 2000 (“PPRA”) and, accordingly, in respect of a purported exercise of power under s 160 of the PPRA. Such approval was given by a magistrate, on 7 July 2014.^[70]

35. [35]
    Sections 160 and 161 of the PPRA provide as follows:

“160Search to prevent loss of evidence

3. (1)
   This section applies if a police officer reasonably suspects—

1. (a)
   a thing at or about a place, or in the possession of a person at or about a place is evidence of the commission of a part 2 offence; and

2. (b)
   the evidence may be concealed or destroyed unless the place is immediately entered and searched.

3. (2)
   This section also applies if a police officer reasonably suspects a part 2 offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it.

3. (3)
   A police officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

161Post-search approval

3. (4)
   As soon as reasonably practicable after exercising powers under section 160, the police officer must apply to a magistrate in writing for an order approving the search (post-search approval order).

3. (5)
   The application must be sworn and state the grounds on which it is sought.

3. (6)
   The applicant need not appear at the consideration of the application, unless the magistrate otherwise requires.

3. (7)
   The magistrate may refuse to consider the application until the police officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.”

36. [36]
    It may also be noted that “search warrant powers” is defined by reference to s 157 of the PPRA^[71] and that the following definition is also provided in Schedule 6 of the PPRA:

“‘reasonably suspects’ means suspects on grounds that are reasonable in the circumstances.”

37. [37]
    A problem which emerges on the evidence in this matter, is that although PCSC Wheeler made the application for and obtained the post-search approval, there is no evidence that he formed the suspicions necessary to engage s 160(1).^[72]  Rather, the evidence is that it was DSC Dehnert who claimed to have done so and it is apparent from the recording made at the manager’s unit, on 1 July 2014, that it was DSC Dehnert who stated (and as the senior officer present, effectively directed) that:

“…we’d like to conduct a search in relation to property sought pertaining to the offence… and we’ll seek ah, approval, ah in the form of a post search approval order…”^[73]

38. [38]
    Accordingly, it must be concluded that the post-search approval was neither sought nor granted in accordance with s 161 of the PPRA.  This is because s 161(1) requires that the application be made by “the police officer” which is obviously a reference back to s 160, which authorises entry to premises and exercise of limited search warrant powers, if a police officer forms the reasonable suspicions that are set out in s 160(1).  Obviously, such a police officer may be assisted by other police officers in conducting a search but the critical issue, as a matter going beyond mere technicality, as far as the application of s 161 is concerned, is the necessity for “the police officer to swear the application” and to “state the grounds on which it is sought”, which necessarily requires a sworn declaration of an individual’s state of mind, as to the formation of the necessary suspicions, as the basis for identification of the reasonable grounds for them.^[74]

39. [39]
    The critical part of the application that was made, was expressed as follows (after referring to the information obtained in respect of the vehicle registered to the applicant and as to her address):

“As a result of this information and from speaking to two persons who resided in units in this complex at 419-429 Boat Harbour Drive who directed Police to unit 17 as being the unit number the defendant resided in, Police have obtained a search warrant for unit 17/419-429 Boat Harbour Drive Torquay and upon their arrival at this address, found that the defendant no longer resided at that address.  Police spoke to an elderly neighbour who confirmed that Nadine WILKINSON no longer lived at that address and that she was the manager’s daughter and inquiries as to her whereabouts could be made with them. 

Police attended the Office/Manager Quarters and knocked on the front door which was answered by the suspect Nadine WILKINSON.  Police then advised WILKINSON of the Armed Robbery investigation and invited WILKINSON to take part in a formal record of interview.  WILKINSON requested that she be allowed to call her father before any interview which she was allowed to do.  WILKINSON was then formally interviewed in the lounge room at the Manager’s address.  WILKINSON denied any knowledge of the offence.

WILKINSON showed no surprise or annoyance at being questioned about an armed robbery offence.  WILKINSON confirmed to Police that she was living at that address being the Manager’s residence.

Also present at the address was WILKINSON’s boyfriend one Jacob DROBNY.  Police also observed that a Blue Hyundai Excel 852FDA was parked in a carport just down from the Manager’s address.  Police noted that it had attached P plates and large ornaments hanging down from the rear vision mirror.  Nadine WILKINSON, her boyfriend DROBNY and her father Steven (who was due back at any moment and is known to have Rebels CMG membership) were now well aware that Police suspected Nadine WILKINSON of the armed robbery offence.  Police believed items of evidentiary value to the armed robbery offence were at the address and if they left the address at that time, then these items could be destroyed or removed from the address.

Police then made what they believed to be a conscious decision to conduct an immediate search and make application for a Post Search Approval order at a later time. 

During the course of the search of this dwelling Police have located/seized the following items:

- Grey hooded jumper with “NIRVANA” written across chest.

- Blue coloured full length jeans

- Black/white coloured skate shoes

- Black T-shirt

- Stainless steel knife with wooden handle

- Clip seal bag containing small amount of Green Leaf Material

- LG brand mobile telephone

Police also seized a Blue Hyundai Excel Hatchback bearing Queensland Registration 852FDA from the front of the address that is believed to be the vehicle used in the commission of this offence.  The defendant was then arrested for this offence and transported to the Hervey Bay Watch house where she declined to take part in a formal Electronic Record of Interview.”^[75]

The language used is confirmatory of the evidence that this application was prepared by PCSC Wheeler, in conjunction with DSC Dehnert.^[76]  However, the further contention that it therefore contains the necessary assertions as to Dehnert’s state of mind, may not be accepted.  The application is in the name of and is sworn by PCSC Wheeler and this has induced the magistrate’s incorrect approval, in terms of satisfaction that is referable to PCSC Wheeler, as follows:

“in the circumstances that existed before the search the police officer, before exercising the powers under the Act, had a reasonable suspicion for exercising those powers; and there was a reasonable likelihood that the evidence would be concealed or destroyed”.^[77] 

40. [40]
    However and before returning to consideration of the effect of this illegal conduct (and some other criticisms by the applicant of this application for post-search approval) and considering any exercise of judicial discretion, it is necessary to consider the contentions as to the legalities of the search that was conducted on 1 July 2014.

41. [41]
    In this regard, it is apparent that the critical issue is as to the requirements of s 160(1)(b) rather than s 160(1)(a). That appears to be because there is no contention that the police officers did not go to the Urimbirra Retirement Village other than with the suspicion of finding evidence of the commission of an indictable offence of armed robbery, particularly in respect of the clothing worn and the car used, by the offender. In fact, it is apparent that that was the underlying basis of obtaining the search warrant for unit 17, in the first instance.

42. [42]
    As is apparent from the tenor of the applicant for the post-search approval, the evidence of the police officers and PCSC Wheeler, in particular, was directed at seeking to justify an exercise of power under s 160 of the PPRA, by reference to the prevailing circumstances at a point after the police have gained entry to the manager’s unit and it is then clear that the applicant is aware of the police investigation in respect of her conduct.  Obviously, considering the matter at that point and in such circumstances, provides the most favourable support for a reasonable suspicion that evidence may be concealed or destroyed unless the place was immediately searched.

43. [43]
    However, that approach also engaged the notion that the police were then lawfully in the unit, because entry had been gained with the consent of the occupier, the applicant. That notion was put in issue by the applicant. This was because of the conduct of PCSC Wheeler, who was the police officer who was first engaged with the applicant, when she answered the door at the manager’s unit. As the recording demonstrates, the approach of PCSC Wheeler was at least inadvertent of the inapplicability of the warrant that he had been issued in respect of unit 17 and at worst, misleading or involving misrepresentation that he was seeking entry to execute that warrant. This is because:

1. (a)
   In the context that when the recording is recommenced, as the officers were approaching the manager’s unit, PCSC Wheeler states:

“SCON WHEELER:Yeah, recommence recording.

Search warrant at 4-1-9 to 4-2-9,           Boat Harbour Drive. Hello. G’day, how are ya?”;^[78]

2. (b)
   After PCSC Wheeler identified himself to the applicant, there is the following exchange, before he confirms the applicant’s name and that only her boyfriend was otherwise present in the unit:

“SCON WHEELER: Okay. And I have a search warrant today. Alright?”;^[79]

3. (c)
   PCSC Wheeler is then recorded as saying:

“SCON WHEELER:  I do have another officer here with me. S – we’ll get us all together. And then we’ll go inside and I'll explain that search warrant to you. Okay? Happy with that?”^[80]

44. [44]
    It is necessary to understand that DSC Dehnert was not initially present when PCSC Wheeler first engaged with the applicant. This was because, as the police officers had approached the manager’s unit, he had first gone around towards the rear door. However, it is apparent that he soon returned to a position near where PCSC Wheeler was engaged with the applicant, at the front door and it can be noted that before there is any response to the statement by PCSC Wheeler that “we’ll go inside and I’ll explain that search warrant to you”, DSC Dehnert can be heard and the following exchange ensues:

“SCON DEHNERT:  Well at this stage.

SCON WHEELER:  Okay. And --

SCON DEHNERT:  Yeah. Its the warrant for the other address or, yeah, okay. Alright. Nadine we’re police detectives. You understand that? Okay. And we’re investigating an armed robbery which occurred yesterday at Cypress Street. Okay? So we’d like to give you the opportunities to answer --

WILKINSON:  What was it sorry?

SCON DEHNERT:  An armed robbery at the Cypress Street convenience store.

WILKINSON:   Yep.

SCON DEHNERT:  Okay. A female has entered the store with a knife, held up the store, ah, owner and then stolen four hundred dollars.

WILKINSON:   [INDISTINCT]

SCON DEHNERT:  So we’d like to talk to you about that.

WILKINSON:   Me?

SCON DEHNERT:  Yep.

WILKINSON:   Okay.

SCON DEHNERT:  Okay. So [INDISTINCT] tell me where we can go and sit and, um, and we’ll talk to you about it.”^[81]

45. [45]
    It is apparent that DSC Dehnert then answers his telephone and PCSC Wheeler then has the following exchange with the applicant, before the Police officers enter the unit:

“SCON WHEELER: Do you mind if we just pop inside and have a chat about it?

WILKINSON:  Oh, well, I’ll chuck them outside then. Come on. [INDISTINCT]. Come here. Come here. Sorry.”^[82]

46. [46]
    Following that and what can be heard on the recording as an exchange between DSC Dehnert and the applicant’s boyfriend, the applicant can be heard to make a telephone call (to her mother) and as is pointed out for her, she is heard saying that:

“WILKINSON:  Um, yesterday a robbery or something, [INDISTINCT] yesterday someone, um, held up a store in Cypress Street and the police are here questioning me about it now. And they want to do a search warrant with money. Yeah. Oh I’m letting them do it. Okay. Yep. Okay. Bye.”^[83]

47. [47]
    Subsequently, the applicant is first cautioned and then questioned as to the offence, including as follows:

“SCON WHEELER: Okay. Well let me tell you a little bit further about what we have. Um obviously we’ve conducted an investigation into what’s happened.

WILKINSON:  Yeah.

SCON WHEELER:  Okay? Um, there is C-C-T-V footage available of that incident.

WILKINSON:  Yeah.

SCON WHEELER: Alright, which shows certain things. And also investigations have led us to a vehicle namely a, ah, green –

WILKINSON:  I have --

SCON WHEELER: Slash blue --

WILKINSON:  I’m pretty sure --

SCON WHEELER:  Hyundai --

WILKINSON:  Mine’s blue.

SCON WHEELER: Excel.

WILKINSON:  Yeah.

SCON WHEELER:  Okay. With a P plate attached, alright, and a single female occupant. Alright? Now those enquiries have led us to your vehicle, okay --

WILKINSON:  I was --

SCON WHEELER: Which is registered in your name.

WILKINSON: I actually have proof where I was yesterday too. Like, what’s it called? An alibi. I was at my friend’s house with Jake all day, like, at the house, at Nathan’s.”^[84]

After that, she gave some details as to her movements on the previous afternoon, before DSC Dehnert is recorded as saying:

“SCON DEHNERT:  Okay. Well we’d, um --

UNIDENTIFIED MALE SPEAKER: That’s enough.

SCON DEHNERT: Like to conduct a search, ah, in relation to property sought pertaining to the offence. Um, that includes the, um, shoes, pants, [INDISTINCT] top I mentioned. [INDISTINCT]”^[85]

“SCON DEHNERT: And we’ll seek, ah, approval, ah in the form of a post search approval order [INDISTINCT].”^[86]

48. [48]
    Whilst it is clear that the conduct and assertions of PCSC Wheeler cannot be condoned and at the very least were improper and apt to mislead the applicant,^[87] this is not a situation, due particularly to the interventions of DSC Dehnert, where there has been the purported execution of an invalid search warrant, issued in respect of another place.  However and in this context and as this situation apparently quickly progressed, it is understandable that the applicant did not appreciate the nuance as to what was occurring, as she later appeared to indicate when her mother arrived and began to question the police about not having a search warrant.  Further, the initial representation by PCSC Wheeler to the effect that the police were acting pursuant to a search warrant, does potentially undermine the suggestion that there was consent (at least in the sense of being consent that was properly informed and freely given) to the entry of the police into the unit. 

49. [49]
    However, it must be kept in mind that as far as the application of s 160 of the PPRA is concerned, it is the conduct of DSC Dehnert and more particularly his state of mind, which is critical.  In that regard and as correctly contended by the respondent and despite the tendency in his evidence to seek to support his suspicion at the point when he announced the intention to conduct the search of the unit, looked at in an overall sense, the reality of the evidence of DSC Dehnert is that he had formed that suspicion and an intention to search the manager’s unit at an earlier point and no later than the point at which he entered the unit. That is so, even if, prior to then, that was somewhat dependent on confirmation of the applicant’s residence there.  He directly confirms such a state of mind in cross-examination^[88] and in his evidence-in-chief and when he was asked about his intention prior to entering, he said:

“…Well, I was fearful that if I didn’t immediately, you know, conduct those powers – conduct a search for the property, they could be concealed or destroyed.”^[89]

And further, and after confirming that he did not conduct the search immediately upon entry, he explained:

“Although I had formed an intent that that was what I was going to do but just at what point I was going to do it.  I thought the best course of action was to try and at least get a – a version – tie Mr Wilkinson down to a version  of events and then – then conduct the search.  I was concerned that – although I felt we were in a position to arrest Wilkinson and perhaps take her back to the police station, or detain her, I was concerned about Mr Drobny.  I wasn’t able to – to take any action against him so therefore I would have been fearful that he may 

have, you know, concealed an item, or removed or destroyed an item of evidentiary value.  I was also concerned about Mr Wilkinson’s father.  Okay.  I know him to be a – an associate member of the Rebels criminal motorcycle gang as well, so I was – became aware that Ms Wilkinson had contacted him and they were on their way back to the – to the – to the house as well.  So I was concerned as to, you know, what may happen there.”^[90]

50. [50]
    Although the evidence in this regard tended to be given from a perspective of hindsight and, accordingly, there was apparent difficulty in the separation of the developing circumstances, up to the point at which DSC Dehnert announced his intention to conduct the search, the better view of the evidence is that he entered the unit (by which time the applicant had informed police as to the presence of her boyfriend there) with the intention to conduct the search, pursuant to section 160 of the PPRA.^[91]

51. [51]
    Accordingly, DSC Dehnert’s entry of the unit is not dependent on any consent given by the applicant and the critical issue is whether there were reasonable grounds for his suspicion that evidence may be concealed or destroyed unless the unit was immediately so entered and searched.

52. [52]
    In reference to his approach to the manager’s unit, there is the following passage in the cross-examination of DSC Dehnert:

“Yes.  You went there with a warrant specifically going there to search Nadine Wilkinson’s premises, correct?---Unit 17.

Your whole purpose of going there was to search her premises?---   Which I believed to be---      

Correct?--- ---unit 17.  Yes.

Correct.   You go there and you find further information that she doesn’t – she doesn’t reside at 17?---That’s correct.

You speak to someone who points you in  the direction of the manager’s opposite, correct?---That’s correct.

I suggest to you that what happened was they said that Nadine lived with her father at the manager’s office?---No.  Not at all.  Because if they had have told me that I would have gone back and got another warrant, then come back and executed that warrant.

Yes.  That’s exactly what you would have done, correct?---That’s right.”^[92]

53. [53]
    It is necessary to note that the context to this passage is that, inconsistently with the contemporaneous notation made by PCSC Wheeler and what both he and Constable Savic had recorded in their statements, the evidence of both PCSC Wheeler and DSC Dehnert was that they had not been actually told, upon attending at unit 17 with the warrant, that the applicant was residing in the manager’s unit, rather than being directed to make enquiries there.

54. [54]
    As has already been noted, the weight of the evidence, despite DSC Dehnert not having made an earlier inconsistent recording, is that the police officers were given a more definite rather than less definite indication that the applicant was then residing at the manager’s unit. Also and as DSC Dehnert indicated, he was aware prior to attending there, that the applicant’s father was the manager of the complex of some 50 units.^[93]

55. [55]
    Accordingly, the applicant’s contentions attached to the concession made by DSC Dehnert, to the effect that had he been told that she lived with her father at the manager’s unit, he would have obtained another search warrant and also what must have been a growing realisation of likelihood that she did reside there and was present there, particularly once it was identified that her car was parked nearby.  But that evidence is not entirely consistent with other evidence of DSC Dehnert, as to his state of mind during the course of events at the retirement village. In cross examination and although he maintained that they had not been given any definite indication as to the defendant’s residence at the manager’s unit, when it was suggested to him that his admitted suspicion that she was there (at least from the point of seeing her car nearby) provided a sufficient basis to ground a warrant, he said:

“That suspicion was sufficient for you to ground a warrant, correct?   At that point in time I could have gone back to get a warrant but I was fearful that if she had seen us, the cat’s out of the bag,  She knows the police are on to her in relation to the armed robbery and she’s likely to start disposing of evidence.”^[94]

56. [56]
    Whilst the attempt by these police officers to depart form the contemporaneous recording of PCSC Wheeler may be viewed as somewhat disingenuous, looking at the matter in a realistic sense, it is apparent that there are, once again, difficulties lying in the attempt to examine the development of thought processes in a dynamic and developing context and with the benefit of hindsight. The reality is that even if, as should be found, the police officers were given more definite information as to the applicant’s place of residence, that necessarily came in the context of the earlier similarly obtained information which had proved to be incorrect. Clearly, the officers then embarked upon a course of conduct which was designed to ascertain the applicant’s presence at the manager’s unit and have the inevitable consequence of creating the purported need for emergent search.

57. [57]
    Equally clearly, there were other possible courses of action:

1. (a)
   it may well have been possible to sit off the manager’s unit, whilst one of the four police officers present, or someone else, obtained a further warrant; and

2. (b)
   even after the presence of the police officers had been made known to the applicant, as a matter of certainty and by their conduct in going to the manager’s unit, an alternative course may have been to declare a secondary crime scene.

Of course taking any such action may be seen as properly respecting the underlying concern of the law, with the protection of individual rights and need for independent oversight in authorisation of incursion on such rights, by way of exercise of powers of search.  However, it may also be seen that the provision of need for post search approval in s 161, provides for some independent oversight of an exercise of power under s 160.  It must be borne in mind that apart from the necessity for the reasonable suspicions set out in s 160(1), there is no other restriction placed on this statutory power, which is given to police, in addition to the provisions relating to the obtaining and execution of search warrants.^[95]    Accordingly, consideration after the event and as to other alternative options, is relevant only to understanding and determining whether or not DSC Dehnert did suspect that evidence may be concealed or destroyed unless the manager’s unit was immediately entered and searched and more particularly, whether there were reasonable grounds for any such suspicion.

58. [58]
    The emphasis must be upon the need for immediacy of entry and search. A consideration may be the nature of the evidence which is suspected to be present. Here and whilst it may be considered that there would have been some difficulty in effectively concealing or destroying things, such as the applicant’s clothing (or evidence as to the presence of such items) particularly if the prospect of the items being moved away from the premises was guarded against, it must be also be borne in mind that s 160(1)(b) requires only the reasonable prospect of that occurring and here, there is clear evidence that DSC Dehnert suspected that such evidence “may be concealed or destroyed”, unless there was “immediate” entry and search, particularly if the applicant or those associated with her were alerted to the police interest in her and such a view, in the circumstances, was not unreasonable.^[96]

59. [59]
    The more critical question is as to whether the applicant has satisfied the Court that any such suspicion was not based on reasonable grounds and particularly because it was the conduct of the police in the context of the reasonable alternative of waiting and obtaining a further warrant, that brought about the claimed need for immediacy of action. However, the question is not whether there were other or even preferable alternatives that were open. Rather, it is a question of examining whether the grounds upon which the particular exercise of power was premised, were not present. That is, the question is as to whether the exercise of power pursuant to s 160 of the PPRA, is demonstrated to be invalid or illegal. 

60. [60]
    But that question is not answered by looking merely at the prospect of concealment or destruction of evidence at the point of entry to the unit and when the fear upon which these suspicion of DSC Dehnert was premised, of the occupants becoming aware of police presence and interest in them, was fructified. Rather, it is necessary to have regard to the actions of the police in bringing about this situation, in the context of other available alternatives and in order to consider whether or not there were reasonable grounds for that suspicion, particularly in terms of the need for immediacy of entry and search.

61. [61]
    The situation must be examined realistically and with an understanding that it developed over a relatively short timeframe and without the benefit of the leisurely introspection gained with hindsight. Although and as has been noted, it should be found that the police were given more, rather than less, definite information as to the applicant’s residence at the manager’s unit, the concession made by DSC Dehnert as to the course he would have followed in such an event, perhaps comes from such a perspective. In any event, the weight to be given to that concession depends upon what was implicitly accepted as a premise for it. That is, some certainty or reliability in an indication as to the applicant’s place of residence. That is not necessarily the position in which DSC Dehnert, in particular, was placed. The reality is that initially, at least, there was nothing to indicate that this further information was any more reliable than the earlier but falsified indication as to the applicant’s residence at unit 17. Accordingly and in the circumstances, it was not unreasonable for the police to seek to confirm the situation, notwithstanding that by doing so, the prospect of attention being drawn to the police presence and particularly, knowledge of this being imparted to the occupants of the manager’s unit, was increasingly heightened.

62. [62]
    Conceivably, there was a final opportunity to stand off and seek a search warrant, once the applicant’s car was identified, in the carport near the manager’s unit. However and by then, the course of action in actually establishing whether or not anyone, including the applicant, was present there, was well advanced and it was reasonable, as DSC Dehnert said he was, to be even more concerned, at that point, about the prospect of discovery.

63. [63]
    In the circumstances, it is not demonstrated that the suspicion of DSC Dehnert that evidence of the commission of the offence of armed robbery may be concealed or destroyed unless police acted with immediacy to enter and search the manager’s unit, was not based on reasonable grounds.

64. [64]
    Accordingly, it is only necessary to consider whether there should be any exclusion of the evidence as an exercise of discretion on public policy considerations, on the basis of the illegality in failure of compliance with the requirements of s 161 of the PPRA. Whilst it has been recognized that the granting of post-search approval under s 162(1) of the PPRA, does not render an unlawful search lawful,^[97]illegality in respect of satisfaction of the mechanism of statutory oversight of even an otherwise lawful search under s 160, could provide a basis for such an exercise of discretion.^[98]

Discretionary exclusion?

65. [65]
    In addition to the identified invalidity in the application for and obtaining of the post-search approval order pursuant to s 161 of the PPRA, in terms of the application having been made by the inappropriate police officer, the defendant also contended that the application was attended by impropriety or was improperly made because it was misleading in terms of omission of reference to the gaining of entry to the searched premises, or any consent to such entry, pursuant to the pretext of reliance on an invalid warrant.  A further consideration is that the application contains the assertion that after attending with the warrant at unit 17 and finding that the defendant no longer lived there:

“Police spoke to an elderly neighbour who confirmed that Nadine Wilkinson no longer lived at that address and that she was the manager’s daughter and inquiries as to her whereabouts could be made with them.”^[99]

66. [66]
    As to the contention of misleading by omission, for the reasons that have been set out above in respect of the issue as to PCSC Wheeler’s reference to the invalid warrant, it may be concluded that this is not a material omission in respect of the application for the post search approval order. This is because the assertion by PCSC Wheeler did not form any part of the basis upon which DSC Dehnert acted and the search pursuant to s 160 of the PPRA was not conducted in reference to any such assertion.  However, the conduct of PCSC Wheeler should not be ignored and, as will be noted, is relevant to the contextual circumstances for the purpose of the balancing exercise involved as to the application of public policy. 

67. [67]
    As to the contention made in respect of the information obtained from the elderly neighbour and whilst, as has been found, that information was likely to have been expressed more definitely, again having regard to the reasons already expressed, it may be seen that the formulation in the application for post-search approval, is more reflective of the discerned uncertainty in the state of affairs on 1 July 2014 and the discerned need for further inquiry as to the defendant’s whereabouts. In that sense, the notation may be viewed as being in the nature of being less than frank, rather than misleading, as to the basis upon which the approval was sought. Again and whilst, on that basis, this does not warrant consideration as any separate basis of invalidity of the approval obtained pursuant to s 161 of the PPRA, the lack of candour is of some contextual relevance to the balancing exercise involved as to the application of public policy. 

68. [68]
    In that regard, the relevant principles are stated in Bunning v Cross^[100] and Ridgeway v R^[101] and were applied in R v Milos.^[102] In R v P & Anor,^[103] Applegarth J set out the following useful summary of the principles to be drawn from these and other authorities:

“[61]  The public policy discretion to exclude unlawfully obtained evidence weighs competing public interests. One is “the desirable goal of bringing to conviction the wrongdoer.”15 Another is “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.”

[62]  The discretion “is necessary to protect the processes of the courts of law in administering the criminal justice system.” This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute. The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.

[63]  Although Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence, as Henry J observed in R v Toon, these factors are illustrative, and the focus must be on the case at hand. Some factors support exclusion, whilst others support admission. Depending on the circumstances at hand, the factors may 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;

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

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

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

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

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

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

[64]  If any of the factors are present, then the weight given to each depends on the circumstances. In R v Versac it was observed:

“The weight given to competing factors depends on those circumstances. For example, the particular circumstances may deprive the principle of deterrence of much weight. The unlawful conduct may have been the subject of disciplinary procedures, counselling or other remedies which sanction wrongful conduct or deter its repetition. If this is not the case, exclusion of the evidence may be appropriate to both uphold the judicial integrity principle and to deter such conduct in the future. If such unlawful conduct is tolerated by those in higher authority, then the case for exclusion will be stronger.”” (citations omitted)

69. [69]
    In this instance, it may be observed that the evidence obtained by the search that was conducted on 1 July 2014,^[104] is cogent and may be seen as adding some significant weight to the circumstantial case against the appellant.  That is particularly by demonstration that she was, contemporaneously to the commission of the offence, found with items consistent with having been used in the commission of the offence, including clothing with particular characteristics that are observable in the clothing of the offender. 

70. [70]
    The evidence is that the application for the post-search approval order was prepared and completed by PCSC Wheeler, in conjunction with DSC Dehnert. And in these circumstances, any unlawfulness arises more in the nature of mistake or oversight as to the statutory requirements, rather than being deliberate or even reckless. Neither does there appear to be any systemic issue in respect of any such failing. And it may be expected that the outcome of these proceedings will make a point as to what is actually required and a similar conclusion may be reached in respect of the identified absence of full candour in the application. It is also to be expected that appropriate correction and guidance will occur in respect of the inappropriately misguided attempt by PCSC Wheeler to rely on the invalid warrant.

71. [71]
    Accordingly, there is an absence of flagrancy of misconduct, such as to warrant concern about any sense of curial approval of impropriety or illegality in the conduct of the police. Further, and as a factor favouring admission of the evidence, particularly in those circumstances, the alleged offence is a serious one. And as has otherwise been found, there was no relevant illegality or lack of legal authority for the search by which the evidence was obtained.

72. [72]
    Accordingly, and in these circumstances, the factors favouring admission outweigh those favouring exclusion and the appropriate conclusion is to dismiss the application for exclusion of the evidence obtained by police, by way of search and seizure at the Urimbirra Retirement Village, 419-429 Boat Harbour Drive, Torquay, on 1 July 2014.

73. [73]
    Although it is strictly unnecessary to do so, I should record that if it had been determined that the search conducted on 1 July 2014, lacked lawful authority in the absence of reasonable grounds to support the need for immediacy of search, such illegality would not have added any such flagrancy of misconduct or other consideration such as warrant any different conclusion as to the exercise of discretion. Similarly to the finding (in respect of similar circumstances) in R v Milos,^[105]it would have been appropriate to find that the quickly developing circumstances from the point when the police came to the retirement village and the reality of increased risk of discovery of the police presence as time went on, significantly compromised the utility of the alternative of waiting and seeking an alternative warrant. 

Conclusion

74. [74]
    Upon publication of these reasons it will be necessary to hear the parties as to the formal and further orders to be made, including as to any further application in respect of the admissibility of the evidence of Sergeant Schnitzerling.