R v Lancini[2022] QDCPR 64

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant applies to pursuant to s 590AA of the Criminal Code 1899 (Q) for the exclusion of evidence obtained as a result of the execution of a search warrant at 20 Eddleston Drive, Cordelia on 19 August 2020. The search warrant sought to locate evidence of the offence of possession a Category A weapon. Cannabis and plants were located during the search. As a result, the defendant was charged with producing a dangerous drug, producing a dangerous drug exceeding 500 grams, possession of a dangerous drug exceeding 500 grams and possessing a thing used in connection with the possession of a dangerous drug. No weapon was located at the property although some ammunition was.

Submissions

1. [2]
   The defendant submits that the search warrant was unlawfully obtained and invalid because the police seeking the search warrant did not place before the issuer (a Justice of the Peace) all relevant information. Further, the police misdescribed the credibility of the information and in all of the circumstances the issuer ought not to have had a reasonable suspicion which would ground the issue of the search warrant.
2. [3]
   The prosecution on the other hand, submits that relevant information was placed before the issuer, that the police considered they did have credible information and reliable sources and therefore in all of the circumstances there were reasonable grounds for suspecting that evidence relevant to the possession of a weapon existed. Even if there was some illegality, the exercise of the discretion favours the admission of the evidence in light of the nature of the evidence located and the alarming nature of the information received by the police.

Background

1. [4]
   On 19 August 2020, police received information from a Tracey Pryor (misdescribed in the application as an anonymous informant) that her grandchild had told her that she had been on a bus with Lachlan Lancini and he had been saying that he knew what suicide was and that afternoon when he finished school he was going to grab his father’s shotgun and shoot himself.
2. [5]
   It is clear that this information represented hearsay upon hearsay from a child on a bus who allegedly overhead or spoke with a nine-year old child.
3. [6]
   The evidence reveals that Senior Constable King and Constable Macaranas attended the Ingham State School and had a conversation with the principal of the school. The evidence reveals that the principal passed on no additional information other than confirming Lachlan attended the state school and provided his date of birth. The police made no effort to speak to either Lachlan or the child who allegedly overheard what Lachlan said. To my mind, this was a significant oversight. There is no reason why they could not have spoken to the children to confirm the accuracy or otherwise of the hearsay information received. The police went to the school shortly after 8am so had plenty of time to conduct these inquiries.
4. [7]
   Officer King then prepared an application for a search warrant. In addition to referring to the alleged conversation, he referred two intelligence reports. He noted with respect to a report dated 16 November 2018;

“Previous intelligence report from 16 November 2018 indicates that Lancini has in his possession an SKS (converted to automatic) automatic and semi-automatic rifles, unregistered handguns and respect of ammunition. This intelligence was investigated by Ingham CIB. The report referred to different property which is a large parcel of land and without specific details a search would be very difficult of the area for these reasons and no search was conducted.”

1. [8]
   He also noted that the firearms areburied throughout the property.^[1]
2. [9]
   As regards an intelligence report from 7 April 2020 he noted;

“Previous intelligence report from 7 April 2020 indicted that Lancini is dealing and using Ice and amphetamines and having possession of a military weapons and ammunition. No police action has been taken with regards to a search warrant at this address from this intelligence at this time.”

1. [10]
   He also noted that Lancini is dealing and using ice and amphetamines and has possession of military weapons and ammunition.^[2]
2. [11]
   Contrary to claims by King in his evidence, it is my assessment that he alleged to the issuer that all of this information was credible.^[3] Also, it seems clear to me that the previous intelligence reports were heavily relied upon in the application to obtain the search warrant.^[4]
3. [12]
   In my opinion, there were material non-disclosures and misrepresentations made in the application. I have already referred to two of the misrepresentations above.
4. [13]
   Also there was no disclosure that the police had failed to check on the accuracy of the hearsay information. Also, it was not disclosed that there was secondary hearsay from Ms Pryor. The clear impression given in the application was the informant had overhead the alleged words. Also it was alleged the child was in year 6 when the truth was he was in year 4. It is also of note he did not disclose Ms Pryor’s identity.
5. [14]
   Turning then to the previous intelligence reports, with respect to the one dated 16 November 2018, the Intelligence Log Summary noted that the reliability of the information was unknown, the truth could not be judged and it was noted to be F6. Further, at page 3, it was noted;

“This information was initially rated as F6 subject person Lancini has no recorded history and is not listed in any previous intelligence holding. He is not listed a registered weapons licence holder and there are no listed weapons stored at his address. He has no associates listed … the information provided in relation to drugs and weapons for Lancini is not supported by QPS holdings.”

1. [15]
   The information is now rated as F3. Reliability unknown possibly true report.
2. [16]
   None of these issues were disclosed to the issuer in the application.
3. [17]
   With respect to the intelligence log summary dated 7 April 2020, it is common ground that this was the same informant. This was also noted to be F6. The informant was not willing to speak to an investigator and declined to leave details and wished to remain anonymous. It was noted;

“The source advised they had reported the matters previously to Crime Stoppers but did not know the report number and did not wish to be provided a reference number for this call. The source is reporting Matthew Lancini … of dealing and using Ice and amphetamines and having possession of military weapons and ammunition … Original reported rated F6. This report relates to drug supply and illegal weapons. As the informant declined to leave their details and the nominated persons have no drug or weapon history, no further assessment is possible at this time. Report remains F6. Reliability unknown. Truth cannot be judged”

1. [18]
   Again, the issues of unreliability were not disclosed in the application for the issue of the search warrant. Further in my opinion, the police officer misrepresented the credibility of this information in the application which was contrary to the true position.
2. [19]
   Officer King gave evidence at the committal hearing. He told the court he had eight years’ experience as a police officer in Queensland and three in England.^[5]
3. [20]
   He claimed it would be better for the child’s mental health not to speak to him^[6] but this does not explain why he did not speak to the other child. Also he never spoke to Ms Pryor about the information.^[7] He accepted no one confirmed whether Lachlan had actually said the words alleged.^[8]
4. [21]
   He could not give a reason as to why he did not identify in the application that the informant for both intelligence reports was the same person.^[9] He accepted that information would be more credible if there were two different informants.^[10]
5. [22]
   The Officer was aware of the Admiralty system of intelligence ratings but did not identify these in the application.^[11]
6. [23]
   He alleged that the use of the words “credible information” referred to the “current intel”.^[12] I do not accept this evidence. The application clearly referred to “sources” not “source”. I find the use of the word “credible” in connection with the intelligence reports was misleading.

Factual conclusions

1. [24]
   It is my determination that there were material non-disclosures and misrepresentations made in this application as specified above. If there had been disclosure of all matters then, in my opinion, the issuer would most likely would not have issued the warrant without further enquiries being undertaken. The reason for this is the two intelligence reports were really of no value and if the issuer had been told about the second-hand hearsay I expect the police would have been required to actually make further enquiries with the children involved. There was plenty of time to do this as the children were at school at the relevant time.
2. [25]
   I infer that Officer King “talked up” the information and did not make full disclosure of the conversation so that the issuer would believe all of the information was credible so that the warrant would be issued.
3. [26]
   Relevant also to this application is the Police Operational Procedures Manual (“OPM”) which deals with the issue of search warrants. This provides that :

“When an officer receives information which could result in a search of a place prior to making an application for the issue of a search warrant the officer should:

1. (i)
   ascertain the strength and reliability of the information by questioning whether the information has been personally witnessed by the informant or is hearsay;
2. (ii)
   make an initial assessment of the information applying the admiralty system of intelligence classification.”

1. [27]
   Crucially a supervisor must review the search warrant application and is to be satisfied of compliance with the contents of this section.
2. [28]
   In this case, the supervisor appears not to have conducted the relevant checks. There was no consideration on the supervisor search warrant application checklist of the “linkage of evidence as sought with the offence, suspect and the address” and no checking of whether the “information sufficiently reliable.” This is of concern in this case. In my view a breach of the OPM has occurred here. The police are legally required to comply with the OPM.^[13]
3. [29]
   I also note Officer King’s evidence in the committal that if there was no other intel in the system, after hearing evidence about what the child allegedly said on the bus, police would have gone to the address and spoken to the parent and no warrant would have been obtained.^[14]

Discussion

1. [30]
   The courts have been jealous to protect the rights of citizens to peaceable possession of their own property and to insist that the requirements for the issuing of search warrants are strictly complied with.^[15]
2. [31]
   The High Court in Smethurst v Commissioner of the Australian Federal Police^[16]noted:

1. (a)
   The power of search has always been regarded as an exceptional power and is only to be exercised under certain justifying conditions.
2. (b)
   “In prescribing conditions governing the issue of search warrants the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasion of their privacy.”

1. [32]
   In George v Rockett^[17] the High Court noted that search warrants authorise an invasion of premises with the consent of persons in lawful possession thereof and as a result:

“To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.”

1. [33]
   The statutory law in Queensland is in thePolice Powers and Responsibilities Act 2000(Q) (“PPRA”). Section 7(1) of the PPRA notes that it is Parliament’s intention that police officers should comply with the legislation.
2. [34]
   Section 150 of the PPRA permits a police officer to apply for the issue of search warrant to obtain evidence of the commission of an offence to a justice. Section 150(7) of the PPRA provides that a justice may refuse to consider the application until the police officer provides all information the issuer requires.
3. [35]
   Section 151 of the PPRA permits the justice to issue the search warrant only if they are satisfied there are reasonable grounds to suspect that evidence or property mentioned in section 150 is at the place or likely to be there within the next 72 hours.
4. [36]
   “Reasonably suspects” means suspects on grounds that are reasonable in the circumstances.^[18]
5. [37]
   As to the term “reasonably suspects” in George v Rockett^[19]it was said:

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.”

1. [38]
   A suspicion must be more than a mere idle wondering as to whether it exists or not. It is a positive feeling of actual apprehension or mistrust^[20] and of course there have to be reasonable grounds for the suspicion.^[21]
2. [39]
   To be reasonable it cannot be arbitrary, irrational or prejudiced.^[22] Some factual basis for the suspicion must be shown. It can be based on hearsay but the material must have probative value. Also in determining this question regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.^[23]
3. [40]
   Taking up this last point all relevant information should be placed before the issuer so he or she can determine if there is a reasonable suspicion. It has been held that the applier is obliged to bring notice to the issuer of all material facts relevant to the exercise of the discretion to issue the search warrant bearing in mind the common law’s protection of the privacy of individuals against the arbitrary use of power of entry and search.^[24] A material fact is one which may have affected the exercise of the discretion to issue the warrant.^[25]
4. [41]
   Whilst there is some debate as to the extent of the duty of disclosure,^[26] in Lego Australia Pty Ltd v Paraggio^[27], Beaumont and Whitlam JJ noted at page 555F that warrants may be set aside where there is fraud or misrepresentation. Hill J noted:

“… it seems to me that the obligation should be stated in terms of an obligation to ensure that the material before the Magistrate or Justice is not such as to mislead and that any omission of relevant material was inadvertent. This is merely another way of saying that the informant must in compiling the information act in "good faith”.^[28]

1. [42]
   His Honour also noted at page 566G:

“It cannot be the case that an informant could be so selective of the material to be placed before the Magistrate or Justice as deliberately to lay an information from material adverse to the person whose premises are to be searched or whose criminality is suspected, neglecting altogether favourable material, so as to secure the issue of the warrant.”

1. [43]
   Bearing in mind the evidence in this case, the submissions made and the above principles, I am satisfied that the police officer was at the least reckless in failing to make full disclosure of material facts relevant to the application.
2. [44]
   Further, if the true position has been placed before the Justice, in my view, the facts would not have created a suspicion on reasonable grounds. Further investigations were necessary.
3. [45]
   I find that the warrant was improperly obtained as the non-disclosure and misrepresentations in my view (bearing in mind the OPM) fell below the minimum standard of acceptable police conduct.^[29]
4. [46]
   In those circumstances, my finding is that the search warrant was invalid. I also find it was there was a breach of the OPM when the application was checked by the supervisor.

The discretion

1. [47]
   The Crown submits that the court should nonetheless admit the evidence because the illegality does not affect the cogency of the evidence; the charges are serious and police did attempt to obtain a search warrant rather than doing an emergent search.
2. [48]
   The defence on the other hand submits that the unlawfulness here was deliberate in that the officer deliberately omitted unfavourable material from the application and the conduct should not be tolerated by the courts.
3. [49]
   In considering this question one has to take into account the factors mentioned by the High Court in Bunning v Cross.^[30] This discretion requires competing public interests to be weighed. One is the desirability of convicting the wrongdoer and the other is the undesirability of the courts encouraging the unlawful conduct of the police.^[31]

1. [50]
   In my view there has been at the least a reckless approach to the obtaining of the search warrant here. It was not accidental or a mere oversight.
2. [51]
   I also consider the unlawful conduct to be serious here, bearing in mind the invasion of land associated with the execution of a search warrant.
3. [52]
   In this case, it is true that the offences are relatively serious, although I do note the drug is a Sch 2 drug. It is of note that the police did not locate any firearm at the property.
4. [53]
   There is no doubt the evidence is cogent and any illegality has not affected this.
5. [54]
   The conduct appears to have been tolerated by the supervisor. There was no real attention given to the OPM here.
6. [55]
   It would have been easy to comply with the law here.
7. [56]
   The court needs to have strong regard to the principles expressed in R v Ireland^[32] where Barwick J noted:

“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.”

1. [57]
   Weighing the above factors, it is my view the court should not tolerate non-disclosure of material facts/misrepresentations in applications for search warrants. In this case, the court must also have regard to the important principles concerning the right of a citizen to enjoy possession of his land peaceably.

Conclusion

1. [58]
   In all of the circumstances, in the exercise of my discretion, I have decided that the evidence should not be admitted at the trial.
2. [59]
   I order the evidence obtained as a result of the execution of search warrant at 20 Eddleston Drive, Cordelia in August 2020 be excluded at the applicant’s trial.