The Queen v Smith[2016] QDC 62

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant applies pursuant to s 590AA of the Criminal Code 1899 (Q) for the  exclusion of evidence located by police during the execution of a search warrant at 5 Tambourah Drive, Benowa, Gold Coast, Queensland.

2. [2]
   The essence of the defendant’s submissions are that the search warrant was issued under the Crimes Act 1914 (Cth) (“the Crimes Act”) for offences involving child exploitation material by another person and yet the items seized were drugs and evidence of drug offences, the seizure of which the defendant submits is illegal as it was outside the terms of the search warrant.

Facts

3. [3]
   At about 4.45pm on 4^th March 2014 a number of Queensland Police officers from Taskforce Argos executed a warrant for 5 Tambourah Drive, Benowa, Queensland. The warrant was issued under s 3E of the Crimes Act. The warrant was issued in relation to suspected offending by Scott Johnson (who also resided at the premises) for using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code 1995 (Cth).

4. [4]
   During the search police located a variety of dangerous drugs and drug paraphernalia in the possession of the defendant and Mr Johnson. Weapons, equipment to produce and package dangerous drugs (for example grinders, scales, clipseal bags, heat sealing equipment and precursor chemicals) were located. There was other evidence which strongly indicated that the defendant was carrying on an online business in the sale of dangerous drugs which he distributed throughout Australia and New Zealand through Australia Post. Business records, cash, emails and printed labels specifying types of cannabis were located. Police located an express post satchel containing cannabis bearing the defendant’s labels and addressed to an interstate address along with numerous sophisticated tick sheets/business records complete with dates, a coded system for identifying the type of drug and weight being shipped and an express post sender tracking details. These records made it apparent that at least 24 parcels suspected to contain dangerous drugs had been sent across the country that afternoon.

5. [5]
   Australia Post was contacted by Police during the search to intercept those parcels and prevent their delivery. A warrant for Australia Post was subsequently obtained to seize that evidence.

6. [6]
   During the execution of the search warrant the defendant also made a number of admissions including to possessing the variety of drugs, being unemployed, working from home with a friend, mailing out stuff as his employment, mailing specifically the parcel containing cannabis (that he claimed it to be on behalf of a friend), having received the precursor chemicals (which he claimed to be ‘Fantasy’) in a trade, purchasing drugs in bulk and the internet being in his name. As he was making some of the admissions police reminded him of his rights and at that point he elected to contact a Solicitor. After that time he exercised his right to silence although at times did make some comments^[1].

Submissions by the parties

7. [7]
   The defendant submits that the Crimes Act warrant did not refer to any State offence and the section does not extend any relevant powers to State offences. It is submitted that the Police did not have any power under the warrant to conduct a search outside the scope of the warrant. In so far as the State legislation is concerned it is submitted that at no stage did the Police purport to rely on s 160 of the Police Powers and Responsibilities Act 2002 (Q) (“PPRA”) i.e. the emergent search provision. It is further submitted that in the exercise of the discretion the evidence should be excluded.

8. [8]
   The Crown on the other hand submits that the Crimes Act warrant did grant the power to the officers to seize the subject evidence. Even if that not be correct s 196 of the PPRA permitted the Police to seize the evidence. In any event even if the evidence was obtained illegally in the exercise of the discretion, bearing in mind the serious nature of the charges the Court would not exclude the evidence.

Did the Crimes Act warrant permit the seizure of the drugs and other drug related evidence?

9. [9]
   The warrant in this case was issued pursuant to s 3E of the Crimes Act to Officer Martin White with respect to 5 Tambourah Drive, Benowa, Queensland. The named person on the warrant was Scott Johnson and the offence suspected of having been committed was an offence contrary to s 474.19 of the Criminal Code 1995 (Cth).

10. [10]
    It was noted further in the warrant &and by virtue of s 3F(1) of the Crimes Act this warrant authorises the executing officer or a constable assisting to do all of the following… to search the premises for any evidential material that satisfies all of the three conditions specified above and to seize any such evidential material that may be found;

“- Seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be:

1. (i)
   evidential material in relation to an offence to which the warrant relates;

2. (ii)
   evidential material in relation to another offence that is an indictable offence; or

3. (iii)
   evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act)

if the executing officer or the constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or use in committing an offence… ”

11. [11]
    This part of the search warrant reflects that which is contained in s 3F(1)(d) of the Crimes Act  which provides for a power:

“(d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

1. (i)
   evidential material in relation to an offence to which the warrant relates; or

2. (ii)
   evidential material in relation to another offence that is an indictable offence; or

3. (iii)
   evidential material (within the meaning of the Proceeds of Crime Act (2002) or tainted property (within the meaning of that Act);

if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.”

12. [12]
    “Evidential material” as defined in s 3C of the Crimes Act as “means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in an electronic form.”

13. [13]
    Section 3(1) of the Crimes Act defines “thing relevant to an indictable offence” means a thing relevant to:

“(a) an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or

2. (b)
   an offence against a law of a Territory; or

3. (c)
   a State offence that has a federal aspect.” (my underlining)

14. [14]
    A State offence that has a Federal aspect is defined in s 3AA of the Crimes Act. 

15. [15]
    The object of section s 3AA of the Crimes Act is to identify State Offences which have federal aspects because “(a)              they potentially fall within Commonwealth legislative power because of the elements of the State offence; or (b)              they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or (c)              the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.”^[2]

16. [16]
    Relevant to this case a State offence has a federal aspect if

“(a) both:

1. (i)
   the State offence is not an ancillary offence; and

2. (ii)
   assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State--the provision would have been a valid law of the Commonwealth … or

3. (c)
   assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence--that provision would have been a valid law of the Commonwealth”.^[3]

17. [17]
    Section 3AA (2) of the Crimes Act provides: 

“Specificity of acts or omissions

2. (2)
   For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).”

State offences covered by paragraph (1)(c)

18. [18]
    Further section 3AA (3) of the Crimes Act provides:

“(3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:

1. (a)
   affects the interests of:

1. (i)
   the Commonwealth; or

2. (ii)
   an authority of the Commonwealth; or

3. (iii)
   a constitutional corporation; or

2. (b)
   was engaged in by a constitutional corporation; or

3. (c)
   was engaged in in a Commonwealth place; or

4. (d)
   involved the use of a postal service or other like service; or

5. (e)
   involved an electronic communication; or

6. (f)
   involved trade or commerce:

1. (i)
   between Australia and places outside Australia; or

2. (ii)
   among the States; or

3. (iii)
   within a Territory, between a State and a Territory or between 2 Territories; or

7. (g)
   involved:

1. (i)
   banking (other than State banking not extending beyond the limits of the State concerned); or

2. (ii)
   insurance (other than State insurance not extending beyond the limits of the State concerned); or

8. (h)
   relates to a matter outside Australia; or

1. (i)
   relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or

10. (j)
    relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

4. (4)
   Subsection (3) does not limit paragraph (1)(c).”

19. [19]
    It has been held that the provisions in the Criminal Code 1995 (Cth) concerning drug offences are not inconsistent with those of the states^[4]. I consider the state and commonwealth laws to be valid ones.

20. [20]
    It is my opinion that the conduct constituting the defendant’s trafficking involved the use of electronic communications as a means of advertising and conducting his business; the use of a postal service to deliver his illegal goods; and commerce between himself and customers in various jurisdictions around Australia and even New Zealand.

21. [21]
    In my view the factual circumstances of the defendant’s State offence of trafficking have a clear Federal aspect to justify seizure powers under the warrant regardless of whether a State offence was ultimately preferred over a Commonwealth drug offence.

22. [22]
    In those circumstances in the situation in which the officers found themselves the seizure was permitted under section 3F (1)(d)(ii) of the Crimes Act.

23. [23]
    In any event in my opinion the seizure was permitted under s 3F(1)(d)(iii) of the Crimes Act 1914 (Cth).

24. [24]
    Section 338 of the Proceeds of Crime Act 2002 (Cth) provides relevantly:

“Evidential material means evidence relating to:

1. (a)
   property in respect of which action has been or could be taken under this Act; or

2. (b)
   benefits derived from the commission of an indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern; or

3. (c)
   literary proceeds.

Tainted property means:

1. (a)
   proceeds of an indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern; or

2. (b)
   an instrument of an indictable offence.

indictable offence means an offence against a law of the Commonwealth, or a non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).

Indictable offence of Commonwealth concern means an offence against a law of a State or a self-governing Territory:

1. (a)
   that may be dealt on indictment (even if it may also be dealt with as a summary offence in some circumstances); and

2. (b)
   the proceeds of which were (or were attempted to have been) dealt with in contravention of a law of the Commonwealth on:

1. (i)
   importation of goods into, or exportation of goods from, Australia; or

2. (ii)
   a communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(v) of the Constitution; or

3. (iii)
   a transaction in the course of banking (other than State banking that does not extend beyond the limits of the State concerned).”

25. [25]
    In my view the material seized could be said to be tainted property as the items seized were either the proceeds of an indictable offence of Commonwealth concern (due to the communication and exportation connection) or instruments of an indictable offence.^[5]

26. [26]
    In those circumstances I am of the view that the seizure of the relevant material was lawful under the Crimes Act warrant.

27. [27]
    It seems to me the approach the court should take is to determine whether objectively there was a power to seize the items under the law. The defence contended otherwise. If subjective belief is relevant I prefer the evidence of Officers Ford, White and Watts.^[6] White in particular was responsible for the execution of the search warrant. Their view was they were exercising powers under the warrant when they seized this material.   

If I am wrong as to the conclusion of legality under the Crimes Act warrant

28. [28]
    Even if I was in error concerning the Crimes Act warrant the evidence revealed in this case from some of the Police^[7] that Police were both acting under Commonwealth warrant powers and under the Police Powers and Responsibilities Act 2000 (Q) “PPRA”.

29. [29]
    Section 196 of the PPRA provides:

“196 Power to seize evidence generally

1. (1)
   This section applies if a police officer lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence.

2. (2)
   The police officer may seize the thing, whether or not as evidence under a warrant and, if the police officer is acting under a warrant, whether or not the offence is one in relation to which the warrant is issued.

3. (3)
   Also, the police officer may photograph the thing seized or the place from which the thing was seized.

4. (4)
   The police officer may stay on the place and re-enter it for the time reasonably necessary to remove the thing from the place.”

30. [30]
    It was held in R v Rigney-Hopkins^[8] that a similar section in the Police Act (Q) (s 113) permitted the seizing of evidence outside the scope of a warrant. This section reproduced the general effect of the common law.

31. [31]
    It is my view that the common law was such as would permit the seizure of material outside the bounds of a search warrant. It is true to say that search warrants authorise an invasion of premises and it is necessary to protect against the rights of the citizen^[9] against unlawful intrusion and I bear those principles in mind here.

32. [32]
    In Parker and Ors v Church and Ors^[10], Burchett J noted “whether or not s 10 should be construed as going no further than this, there is a strong current of authority in favour of the view that the common law extends the reach which the warrant would have of itself to include a power of seizure of evidence, found during the search authorised by the warrant, relating to offences not mentioned in it. This common law extension of the reach of a search warrant has now been expressly confirmed by the decision of the Court of Appeal in Reynolds v Commissioner of Police of the Metropolis…”

33. [33]
    Burchett J’s decision was relevantly upheld by the full court of the Federal Court in Parker & Ors v Churchill and Ors^[11].

34. [34]
    Therefore even if I am wrong as to my conclusion regarding the application of the Crimes Act, it is my view s 196 of the PPRA provided the officers a power to seize the relevant evidence.

Exercise of the discretion

35. [35]
    Even if I am incorrect in my view as to the statutes involved in this case I would in the exercise of the “public policy” and “unfairness” discretions admit the evidence.

36. [36]
    In this regard one should take into account the principles expressed in George v Rockett.^[12]

37. [37]
    Also I bear in mind that which was stated in R v Ireland^[13]:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion : or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or 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 there is the public interest in the protection of the individual from 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”.

38. [38]
    In Bunning v Cross^[14] Stephen and Aickin JJ considered the following factors should be considered:

1. (a)
   Whether there was a mistake on the part of the police as compared to a deliberate disregard of the law.

2. (b)
   The cogency of the evidence.

3. (c)
   The ease with which the law may have been complied with.

4. (d)
   The nature of the crime charged.

5. (e)
   The intent of the legislature. 

39. [39]
    Further their Honours noted;

“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 whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.”^[15]

40. [40]
    In my respectful view if there was unlawful conduct in this case it was not born of any misconduct, it was more a matter of oversight. The officers were acting under a valid warrant when entering and searching the property and at most any illegality was a misconstruction of the statutory interpretation of their powers. There was no deliberate or reckless disregard for the law which would favour ruling the evidence inadmissible. No issue was taken as the cogency of the evidence and this then favours the admission. The importance of the evidence favours admission. The charge is serious. The relevant maximum penalty for trafficking is 20 years imprisonment and indeed trafficking in dangerous drugs is classified as a serious violent offence under Schedule 1 of the Penalties and Sentences Act 1992 (Q). This was a particularly sophisticated trafficking conducted over a number of years. By his own admission the trafficking was the defendant’s “a full time job” and he considered himself “one of the most popular weed dealers in Australia.”

41. [41]
    Whilst it might have been relatively easy to comply with the law I do not think that factor looms large in the equation.

42. [42]
    The fact is the police here were immediately confronted with evidence of drugs and of a reasonably significant trafficking operation. I think it was incumbent on them to secure the items swiftly.

43. [43]
    In all of the circumstances in the exercise of the court’s discretion I rule that the evidence should be admitted.

Orders

44. [44]
    My formal order is that the application by the defendant is dismissed.