R v Turner[2010] QSC 473

SUPREME COURT OF QUEENSLAND

ANN LYONS J:

Background

[1] William Joseph Turner (Turner) and Michael James Woods (Woods) are both charged on Indictment 1478/2009 with unlawfully producing the dangerous drug methylamphetamine, the unlawful possession of a prohibited combination of items and possession of things used in connection with the crime of producing a dangerous drug.  All of those offences are alleged to have occurred on 11 November 2008.

[2] On 11 November 2008 police conducted a search of a house at 115 Nursery Avenue, Runcorn.  Woods rented the property and both Turner and Woods lived there.  Police had previously been to the house searching for drugs and an illicit laboratory.

[3] A search warrant for the search of these premises had been obtained from a Justice of the Peace by Detective Senior Constable Dennien on 10 November 2008 pursuant to s 150(2) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). 

[4] During the search a built-in cupboard in the nature of a wall unit with shelves and shutter doors was located in a downstairs room of the house.  The wall unit/cupboard was built across the end of a room and was built in such a way that a large concealed space, large enough for a person to walk around in, was located behind the wall unit.  This concealed space was not visible unless the back panelling of the unit was removed.  The managing agent for the property described the shortened room in the following way;

“[It] had been shortened by at least a couple of metres and that a set of built in cupboards had been constructed which effectively created another smaller room towards the front of the house.  There was no obvious door to this room.  It looked as though you would have to crawl through the cupboard to enter it.”

[5] Within that concealed space various items likely to have been used in the production of methylamphetamine were found, including glassware, chemicals and syringes.

[6] In order to gain access to the concealed space during the search, a sledge hammer was used by police to break an opening in the wall unit.  A number of blows with the sledge hammer were required to create the opening.  A decision was then made to enlarge this opening in order to remove the items found in the space behind the wall unit. In order to do this either a sledgehammer or an axe was used to “smash out the supporting structure that the panels were nailed to.”

This application

[7] Turner and Wood both make application for a pre-trial ruling pursuant to s 590AA of the Criminal Code Act 1899 (Qld) for the exclusion of the evidence which was found in that concealed area namely the glassware, chemicals and syringes.  The basis for the exclusion of that evidence is that structural damage was done to the premises by the smashing of the opening into the concealed space and s 150(4) of the Act requires that an application for a search warrant must be made to a Supreme Court judge if, “when entering and searching the place, it is intended to do anything that may cause structural damage to a building.”  It is clear that no such application was made pursuant to that section. 

[8] The statutory scheme concerning search warrants is to be found in Chapter 7, Part 1 of the PPRA. Section 150 provides;

“150 Search warrant application

(1) A police officer may apply for a warrant to enter and search a place (a search warrant)—

(a) to obtain evidence of the commission of an offence; or

(b) to obtain evidence that may be confiscation related evidence in relation to a confiscation related activity; or

(c) to find a vehicle that is or is to be impounded under chapter 4 or 22; or

(d) to find criminal organisation control order property.

(2)  The application may be made to any justice, unless the application must be made to a magistrate or Supreme Court judge under subsection  (3) or (4).

(3)  Unless the application must be made to a Supreme Court judge under subsection (4), the application must be made to a magistrate if the thing to be sought under the proposed

warrant is—

(a) evidence of the commission of an offence only because—

(i) it is a thing that may be liable to forfeiture or is forfeited;or

(ii) it may be used in evidence for a forfeiture proceeding; or

(iii) it is a property tracking document; or

(b) evidence of the commission of an indictable offence committed in another State that, if it were committed in Queensland, would be an indictable offence in Queensland; or

(c) confiscation related evidence; or

(d) criminal organisation control order property.

       Example for paragraph (a)(ii)—

The search may be for evidence for which an application for a restraining order may be made under chapter 2 or chapter 3 of the Confiscation Act.

(4) The application must be made to a Supreme Court judge if, when entering and searching the place, it is intended to do anything that may cause structural damage to a building.

[9] Accordingly pursuant to s 150(2), an application for a search warrant can be made to a Justice of the Peace, unless it must be made to a magistrate or a Supreme Court judge.  Section 150(4) then provides that it must be made to a Supreme Court judge if when entering or searching a place it is intended to do anything which may cause structural damage to a building.

[10] Section 157(1) of the PPRA then sets out the general powers that may be exercised under a search warrant as follows;

“157 Powers under search warrant

(1) A police officer may lawfully exercise the following powers under a search warrant (search warrant powers)—

(a)  power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section;

(b)  power to pass over, through, along or under another place to enter the relevant place;

(c)  power to search the relevant place for anything sought under the warrant;

(d)  power to open anything in the relevant place that is locked;

(e)  power to detain anyone at the relevant place for the time    reasonably necessary to find out if the person has anything sought under the warrant;

(f)  if the warrant relates to an offence and the police officer reasonably suspects a person on the relevant place has been

      involved in the commission of the offence, power to detain the person for the time taken to search the place;

(g) power to dig up land;

(h) power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates;

(i)  power to muster, hold and inspect any animal the police officer reasonably suspects may provide warrant evidence or property  to which the warrant relates;

(j)  power to photograph anything the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates, whether or not the thing is seized under the warrant;

(k)  power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for warrant evidence or  property.

[11] Section 157(3) provides;

“Power to do anything at the relevant place that may cause structural damage to a building, may be exercised only if the warrant –

(a)     authorizes the exercise of the power; and

(b)     is issued by a Supreme Court judge.”

[12] There is no definition of “structural damage” in Schedule 6 of the PPRA.  The Schedule however defines “place” to include “premises” and “premises” is defined to include “a building or structure, or part of a building or structure of any type.”

[13] Counsel for the applicants submit, therefore, that the plain and ordinary meaning of the phrase should be used.  Reliance however is placed on a number of decisions which have extended the meaning of “structure”.  The question as to what constitutes a structure has been considered in a number of recent cases in Australia.  In Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd[1] (Alamdo) Hodgson JA gave a wide meaning to concept of “structure” and concluded that bitumen pavements around a building were “structures”.  A similarly wide definition was also given by Pain J in Di Franceso v Blantrix Pty Ltd[2] (Di Francesco) where he considered what constituted “structural alterations” in the context of a development application and the need for relevant approvals. 

[14] Counsel for the applicants argue that in the present case there can be no doubt that structural damage was done by police in order for them to enter the concealed room and seize items contained therein. 

[15] Reliance is also placed on the decision of R v Christensen[3] where Holmes J stated that the importance of strict adherence to statutory requirements in the context of search warrants had been repeatedly emphasized by the High Court.   This approach was subsequently endorsed in R v Day & Anor[4].   Counsel submit that in the present case there is no reason why the proper authorisation was not obtained before the structural damage was done.

[16] Counsel for the applicants submit therefore that there has been a complete failure to comply with the legislative scheme, and accordingly the application should be granted and the evidence obtained from the concealed space should be excluded.

Was there structural damage to the building?

[17] It is clear that on the day of the search the police were in possession of a valid warrant which allowed them to search the premises.  It is also clear that the warrant did not authorise “anything at the relevant place that may cause structural damage to a building”. 

[18] The photos in evidence indicate that a large opening in the nature of a doorway has been created in the wall unit or cupboard. 

[19] It is also clear that after Turner and Wood vacated the premises the premises have been able to be returned to their original condition by the complete removal of the wall unit or cupboard.  There is a photo in evidence which shows that once the cupboard was removed the room looks like a larger room.  The wall unit had created a barrier which had simply shortened the room. 

[20] The term ‘structural damage’ is not defined.  The Explanatory Notes to the now repealed Police Powers and Responsibilities Act 1997 (Qld) however provides some assistance as clause 18(2) in relation to Crime Scene Warrants stated:

“If the actions of police in conducting a search of a place are such that it is likely structural damage will be caused to a building, a crime scene warrant from a Supreme Court judge must be obtained prior to commencing the work.....Structure is that part of a building which supports the building and prevents it from collapsing.  It is intended that ‘structural damage’ will be damage that is likely to result in a building collapsing.  It does not involve removal of sheets of gyprock from a wall.”

[21] Similarly the Explanatory Notes to the subsequent Police Powers and Responsibilities Bill 2000 at subclause (4) of clause 68, which related to Search Warrant Applications, provided;

“Subclause (4) provides that the application is to be made to a Supreme Court judge if a search intended to be made will involve causing structural damage to a building, e.g. a concrete floor abutting building foundations is to be dug up in order to search for a body suspected of being murdered.  This subclause does not apply to the mere removal of timber flooring which will not weaken the structure of the building”.

[22] In my view the evidence before me indicates that when the opening was made to the wall unit so as to allow access to the small space behind the cupboard no damage occurred to any part of the building at Nursery Road which supported that building and prevented it from collapsing and no damage occurred to any part of that building such that it was likely to result in the building collapsing.

[23] Whilst I note that the applicants argue that a wide meaning should be given to the word “structure” it is clear that the authorities indicate that the word should be construed according to its context.  In Alamdo the term was being construed within the context of liability for repairs to leased premises and the issue was whether such liability extended to the bitumen areas of the leased property. Reference was made to the judgment of Brereton J in Hampson v Clyne[5] who held;

“‘Structure’ of course is a word of which the meaning varies considerably according to the context, and the phrase ‘structural character’ or ‘defect of a structural character’ varies correspondingly.  Literally ‘structure’ means something which has been constructed and ‘defect of a structural character’ means either a fault in putting the structure together or some subsequent failure on the part of the structure to remain satisfactorily put together.  With particular reference to buildings in common parlance we refer to the bare building as the structure.  We refer to fixtures and fittings attached to the structure although these themselves as individual units technically be ‘structures’.  We refer also to installations such as gas and water piping and electrical circuits.  Each if these may, however, independently be in certain contexts regarded as a ‘structure’ in that it is something which has been constructed within another structure.”

[24] The decision in Alamado clearly indicates that the word ‘structure’ is a word whose meaning varies considerably according to its context. It is clear that the term in issue in that case was in fact “structural maintenance replacement or repair” and not “structural damage.”  Reference was also made to the definitions of structures in Carbure Pty Ltd v Brile Pty Ltd[6] where Balmford J with reference to a building stated that “‘the structure’ is that part of the total building that supports the loads and stops the building falling down.”

[25] The critical issue in Alamdo also concerned the definitions of “land” and “demised premises” pursuant to the lease.  Hodgson JA considered that the primary judge erred in finding that the “demised premises” did not include the bitumen areas.  Hodgson JA then concluded that it was well open to the primary judge to find that the areas of bitumen paving were structures and that the repairs needed to the bitumen areas were structural repairs because the replacement of the asphalt and the basecourse made them usable as pavements by providing the “necessary hard surface and support and...was necessary for them to ‘remain satisfactorily put together’”.

[26] Similarly in Di Franceso the issue related to “structural alterations” and Pain J considered that the phrase:

“refers to work which is substantial, meaning not de minimis or minor and which changes or adds to the form or fabric of the building in a manner which cannot be regarded as merely decorative.  Works that fall within this definition cannot be ‘non structural alterations’”.

[27] In my view, when considering the provisions of s 150(4) and s 157(3) of the PPRA the words of the section obviously refer to damage to the structure of the building.  That is the relevant context of the words in this case.  It is also clear that the words of the section require that a warrant only needs to be obtained from a Supreme Court judge if it is intended to do anything that may cause structural damage to a building.

[28] I consider that what has occurred in this case amounts to damage to a built-in wall unit, as opposed to structural damage to the building or even the room. This wall unit had been added to the room by Turner and Wood and had in fact been able to be constructed without having any impact on the structural integrity of the building or the room.  The wall unit has now been completely removed without structural damage to the room or the building being sustained.  I am not even certain there was structural damage to the wall unit given it was still standing after the opening was made.   I do not consider therefore that the removal of part of the wall unit to allow access to the chamber behind it caused structural damage to the building.  Accordingly whilst there may have been damage to a structure within a structure (namely a wall unit within a room in a house) there was no indication that there was structural damage to the building itself.   

[29] Accordingly as structural damage to a building did not occur and was not intended to occur a search warrant was not required to be obtained from a Supreme Court judge prior to the search.

[30] Counsel also argue that s 157(1) sets out the full extent of the powers which may be lawfully exercised by a police officer under a search warrant.  Counsel argue that in the present case the relevant powers in relation to damaging any sort of “structure’ or thing under a search warrant is to be exercised only in accordance with s 157(1)(k) namely “power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for warrant evidence or property.”  It is clear that in this case a wall of the wall unit or cupboard was removed and not just a wall lining.  Accordingly it is argued that the damage to the wall unit was not authorised under the search warrant. 

[31] Essentially Counsel argue that s 157(1) codifies all the powers which may be exercised under a search warrant.  However given the provisions of s 157(3) I do not consider that the section can be restricted in this way.  In my view s 157(1) contains the powers which can clearly be exercised as the section states that a police officer “may lawfully exercise” the enumerated powers.  The section however does not contain words of restriction such as “may only exercise”.  Accordingly in my view the section illustrates a police officer’s powers in relation to structures however it does not limit the power as it is s 157(3) which contains the words of limitation namely there is no power to do anything at the relevant place which may cause “structural damage to a building”. 

[32] Arguably s 157(1)(b) of the PPRA may, in fact, authorise the officers to make the opening in the wall unit to gain access to the space beyond.  Section 157(1)(b) gives power to “pass over, through, along or under another place to enter the relevant place.”  Schedule 6 of the PPRA provides an extended definition of “place” to include “premises” and “premises” is defined as including “part of a building or structure of any type.”

[33] Even if I am wrong in this regard, I would not exercise the discretion pursuant to Bunning v Cross[7] (Bunning) to exclude the evidence in any event.  In particular, I would rely on the decision of Mullins J in R v Anthony Terrence Koning[8] where an application to exclude evidence obtained without a search warrant was refused as follows;

[15] On the second issue, there is an express statement in section 7 of the Act that the Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. That is also legislative recognition that the discretion can be exercised not to exclude the evidence, even though there has been a breach of the Act in obtaining that evidence. Factors relevant to the exercise of the discretion are set out in the judgment of Stephen and Aickin JJ in Bunning at 78-80. Mr Van der Walt on behalf of the accused summarised those factors as follows:

(a) whether the unlawfulness was a deliberate or reckless disregard of the law;

(b) where the illegality was as a result of a mistake, the cogency of the contested evidence;

(c) how easy would it have been to comply with the law;

(d) the nature of the offence;

(e) the relevant legislation.

[16] These factors are relevant to the two competing public policy considerations that underlie the exercise of the discretion which were described in Bunning at 74 as:

“... 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.”

[34] It is clear that in the present case, given the evidence of the officers at the hearing, that the failure to obtain a warrant from a Supreme Court judge was inadvertent.  Furthermore the offences the defendants are charged with are serious offences which relate to the alleged production of drugs in a homemade lab.  In my view the discretion should not be exercised to exclude the evidence obtained during the search on 11 November 2008.

[35] The application is accordingly refused.