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The Queen v Karl Robert Stieler & Maj-Britt Sarbin WIhlborg QDCPR 40
DISTRICT COURT OF QUEENSLAND
R v Stieler  QDCPR 40.
KARL ROBERT STIELER
MAJ-BRITT SARBIN WIHLBORG
District Court at Townsville
29 August 2019
22 August 2019
McGill SC DCJ
(Reasons for order that applications be dismissed)
CRIMINAL LAW – Search warrant – warrant invalid – exercise of discretion to exclude evidence – evidence admitted.
Bunning v Cross (1978) 141 CLR 54 – applied.
Plenty v Dillon (1991) 171 CLR 635 – cited.
R v Allen  QDCPR 23 – cited.
R v Foster  QDCPR 17 – distinguished.
R v Ireland (1970) 126 CLR 321 – applied.
R v Milos  QCA 314 – considered.
R v Munck  QSC 416 – distinguished.
R v Smith  QDC 62 – cited.
Ridgeway v R (1995) 184 CLR 19 – cited.
Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 – cited.
M A Sheppard for the Crown.
K A Stone for the first defendant.
M Hibble for the second defendant.
Director of Public Prosecutions for the Crown
Anderson Fredericks Turner Solicitors for the first defendant
O'Connor Patterson Smith Lawyers for the second defendant
- On 14 June 2019 an indictment was presented in this Court against the defendants charging them with producing a dangerous drug in excess of 500 grams, possessing a dangerous drug, possessing a thing used in connection with producing a dangerous drug and possessing a thing for use in connection with producing a dangerous drug. The charges are largely based on evidence gathered during a search by police of certain premises undertaken on 29 December 2017, on the basis that they had a warrant to search those premises. On 12 August 2019 the defendants applied to have all items located as a result of that search, and all statements made by the defendants during that search, excluded on the ground that the warrant under which the premises were searched was invalid. On 22 August 2019 that application came before me, and after hearing argument I ordered that the application be dismissed. I said I would publish my reasons in due course. These are my reasons.
- It was not in dispute before me that the warrant, on the purported authority of which the relevant premises were searched, was in fact invalid. Search warrants can be applied for under the Police Powers and Responsibilities Act 2000 (“the Act”) s 150(1). Paragraph (a) of this sub-section permits a police officer to apply for a warrant to search and enter a place to obtain evidence for the commission of an offence. Paragraph (e) permits such an application to be made:
“if the place is premises at which a senior police officer reasonably believes one or more disorderly activities have taken place and are likely to take place again – to find prohibited items at the place.”
- In the present circumstances, it would have been appropriate for the police officer to have applied under s 150(1)(a), and the form of application for a search warrant which the officer completed was an application appropriate under that paragraph. The form of warrant issued however was that appropriate if the application had been made under paragraph (e). It was not a valid application under that paragraph because the reasonable belief about disorderly activities was not held by a senior police officer, and such a warrant could be validly issued only by a magistrate, whereas this warrant was purportedly issued by a justice of the peace. These deficiencies were conceded on behalf of the Crown, and there was no issue before me as to whether the warrant was invalid.
Discretion to exclude
- In those circumstances a discretion arises in the court to exclude the evidence obtained by a search which was not duly authorised by a valid warrant. A search of premises without a warrant is unlawful. Where evidence has been obtained unlawfully or unfairly, a judge has a discretion to reject the evidence: R v Ireland (1970) 126 CLR 321 at 334, where it was said that the exercise of the discretion involves the weighing of competing considerations:
“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.”
- In Bunning v Cross (1978) 141 CLR 54 the court confirmed that the discretion involves the weighing of these conflicting considerations, noting the latter as: “the undesirable effect of curial approval, or even encouragement, being given for the unlawful conduct of those whose task it is to enforce the law.” Their Honours went on to note that the question of fairness to the accused was not the central point, though it was one factor which if present will be relevant.
- In Ridgeway v R (1995) 184 CLR 19 three justices in a joint judgment said that it was neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. In these circumstances, it seems to me to be of some relevance to the exercise of the discretion to consider how it was that reliance on an invalid warrant came about, and in particular, whether this involved deliberate misuse by the police of their general authority within the community.
- The police officer who applied for the warrant gave evidence that this was the first occasion on which he had applied for a search warrant. He had at that time been a sworn police officer for just over six months. The officer said that he asked another officer what form to use and was told the correct warrant was called “Search Warrant at a Place”: p 8. He then went to the police computer where he found a list of forms for warrants and other documents related to warrants, from which one selects a particular form. A copy of this was attached to a statement by the officer which became Exhibit 2. The list of form numbers and names strikes me as quite unhelpful, at least for someone who is not familiar with the warrant forms available on the computer; several of the forms have the same form number, and the names of the forms are also frequently similar, and do not readily alert the user to the significance of the differences between them. The officer said that he did complete the correct application form for a search warrant, that is, an application form for a warrant applied for under s 150(1)(a). When asked to identify the form used for that from the list which is part of Exhibit 2, he had difficulty in doing so: p 19. This reflected the obscurity with which the forms are described on that list.
- The form he selected was called “Search Warrant (AT the Place) – Prohibited Items” and had form number QP0712, the same number as the form he should have used, “Search Warrant (AT the Place) – Not stock matters”. He said his reasoning was that he was searching for drugs, which seemed to fit “prohibited items”, and when he opened the form it gave a list of prohibited items, which included drugs: p 13. Further, when he opened the warrant form he would have seen that it was headed “Search Warrant Police Powers and Responsibilities Act 2000 s 151.” Unhelpfully this did not identify the fact that the warrant form was not appropriate
for every warrant under s 151, but only under s 151(b). Section 150(1)(e) is referred to in the body of the warrant, but not in a place where the officer had to fill in information. Careful reading of the wording of the warrant form would identify that it ought to be applied for on the basis of a reasonable belief held by a senior officer, which did not include this particular constable, but evidently he failed to pick up or to appreciate the significance of that wording at the time: p 16.
- Relatively little information needs to be inserted in this form of warrant, unlike a warrant in the form appropriate to an application under paragraph (a). An example of such a warrant became Exhibit 3; it identified the offence suspected of having been or being committed in respect of which the warrant was issued, details of the evidence or property that may be seized under it and some other details. That form is headed s 151(a)(i), which would show that that warrant was not appropriate in the case of an application under s 150(1)(e). An application under paragraph (e) would require satisfaction with s 151(b) before it could be issued. Because of the officer’s inexperience, the fact that he did not have to record as much detail on the search warrant as he had to put in the application for the search warrant did not alert him to the fact that he was using the incorrect form: p 19.
- Under the Police Operations Procedures Manual the officer should have had the documentation checked by someone of the rank of sergeant or above, and he understood that after printing out the forms he was to provide them to a supervisor for checking: p 17. At this length of time, some 20 months later, he could not recall whether he had shown it to a supervisor, and if so whom. He was certainly unable to identify any particular senior officer who had checked the form, but when the form was printed the computer automatically prints a supervising officer checklist, which ought to have reminded him of the necessity to get the form checked. Either he did not do so, or the person to whom he showed the documentation did not identify that the wrong warrant form had been used. The police officer then took the application and the warrant form to a local JP, who signed the warrant.
- Under the Police Operations Procedures Manual, a justice of the peace associated with a Magistrates Court ought to be used where possible for the issuing of search warrants, though under the Act a warrant may be issued by a justice of the peace, magistrate or Supreme Court judge. If the application had been made to a magistrate, it is possible that the magistrate would have detected that the wrong form had been used, but in the event the justice of the peace who signed the warrant did not realize that, and did not realize that the form used was for a warrant which ought to have been issued by a magistrate rather than by a justice. The warrant was required in an area away from Townsville, and it would have been necessary to bring the warrant and application into Townsville in order to have it signed by a Magistrate: p 10. That would have taken the officer out of his district at a time when he was a first response officer within that district. In those circumstances, when as far as he knew the warrant did not have to be issued by a magistrate, it is understandable that he would take it to the local justice for that purpose.
- When the warrant was executed, there was a senior sergeant present, but the officer who issued the warrant did not believe that the senior sergeant had actually looked
at it, having just been told that the warrant was issued in relation to drugs: p 18. He said that when doing things in the course of his work he tended to rely on the experience of other police officers, rather than necessarily consulting the manual: p 20. At the time he was completing these forms, he was working with the assistance of a field training officer, not necessarily the same one all the time, but on the basis that advice was provided if sought: p 21.
- In the present case it is not disputed that the application for the search warrant was properly completed on the correct form, and it would have been appropriate for a justice of the peace to issue a search warrant in respect of the particular premises concerned on the basis of that information, provided that the warrant was issued in the form appropriate for a warrant issued on an application under s 150(1)(a). The position is simply that an inexperienced police officer inadvertently used the wrong form for the warrant, and the system of checks in place by the police department failed to detect the error, either because the constable overlooked getting the material checked by a senior officer, or because the senior officer failed to detect the error; possibly attention was focused on the application for the search warrant, to ensure that it was adequate. Because that application was in the correct form, there was nothing about it which would have alerted anyone to the fact that the wrong form had been used for the search warrant.
- It is not to the point that if the documentation had been taken to a magistrate the error might have been detected; if the correct form had been taken to the justice of the peace, there is no reason to doubt that a valid warrant in the proper form would have been signed and issued by that justice. In those circumstances, things would have proceeded as they did. The warrant was executed the day after it was issued.
- It was submitted for the defendants that this was really a failure of supervision, in that a supervising officer allowed an inexperienced officer to prepare the warrant and application without proper training or supervision, and that the error could and should have been easily avoided. It is clear that there was some failure of supervision in this case, but there is no indication that this involved a more general failure of supervision, or more than inadvertence by the supervising officer. There is certainly nothing to indicate that the supervisor was acting deliberately, or that there was any general slackness in this important area of police work.
- The High Court decisions cited earlier were applied by the Court of Appeal in R v Milos  QCA 314 where the Court upheld an exercise of discretion to admit evidence obtained without a valid search warrant, in circumstances different from here. The judgment referred to a number of factors which had been identified as relevant to the exercise of the discretion, and said that the police officers there had been acting in good faith , and reasonably and responsibly, and receipt of the evidence would not be incompatible with the functions of the court, or damage the repute or integrity of the judicial process: . By contrast, in the cases relied on by the defendants, in R v Foster  QDCPR 17 there was a finding that the police acted in reckless disregard for the law , while in R v Munck  QSC
416 it was found that entirely insufficient regard was had to the making of the application and to the terms of the order made by the Magistrate: . That was not the position here. Although the offences here are not as serious as in Milos, the maximum penalty for the most serious is imprisonment for 20 years, so it is a serious matter.
- In my opinion the failure to obtain a warrant in the proper form in the present case did not involve any deliberate misuse of police power, or the deliberate subversion of the statutory limitations on the issuing of search warrants. This was not a situation which could fairly be characterized as an attempt by police to do something that they really ought not to have been doing. What happened here was a product of inexperience and inadvertence, the sort of thing which is not going to be effectively deterred by my excluding in the present case the evidence obtained as a result of the search. For me to exercise the discretion to exclude this evidence in this case would not serve the important public purpose identified by the High Court as the matter favouring the exercise of the discretion so as to exclude evidence.
- In effect, to exclude the evidence here would be to deprive the Crown of the opportunity of proving the charges against the defendants, to no good purpose. For these reasons, on 22 August 2019 I exercised my discretion against excluding the evidence. In the circumstances, there was no point in merely declaring that the warrant was invalid. Accordingly, the applications were dismissed.
 The Act s 150(3)(e) – or by a Supreme Court judge.
 It also failed to comply with the Act s 156.
 Plenty v Dillon (1991) 171 CLR 635 at . See also Gilles, The Law of Criminal Investigation (Law Book Company Ltd 1982) p 221; Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 at 195.
 Transcript p 11. A District Court judge is also ex-officio a justice of the peace: Justices of the Peace and Commissioners for Declarations Act 1991 s 19(1)(a). In my experience they are never asked to issue search warrants.
 The only systemic problem was the obscurity of the list of forms on the police computer system.
 See also R v Allen  QDCPR 23 at , .
 See also R v Smith  QDC 62 at ; R v Allen (supra) at , .
 In that case an emergent search was conducted, but there was an attempt, found to be inadequate, to obtain post search approval.
- Published Case Name:
The Queen v Karl Robert Stieler & Maj-Britt Sarbin WIhlborg
- Shortened Case Name:
The Queen v Karl Robert Stieler & Maj-Britt Sarbin WIhlborg
 QDCPR 40
McGill SC DCJ
29 Aug 2019