R v Tran & Doan[2020] QSCPR 13

SUPREME COURT OF QUEENSLAND

1. [1]
   Thanh Huu Tran faces 14 counts on an indictment presented on 14 February 2020.  Nhen Hong Doan has been indicted on the same 14 counts as well as a further three counts on the same indictment.  Each count alleges a contravention of the Drugs Misuse Act 1986 (Qld) (DMA). 
2. [2]
   According to Mr Tran’s counsel, Mr Kimmins, counts 3 to 14 on the indictment rely upon the things found during a search of a residence at 623 Beatty Road, Acacia Ridge conducted by police on 10 June 2016.  These 12 counts may be summarised as follows:

3. [3]
   According to a statement of facts produced by the Office of the Director of Public Prosecutions, it is alleged that the following quantities of drugs relating to counts 5 to 10 were found by police during the search:

4. [4]
   The statement of facts also alleges the quantity of iodine found during the search, which is the subject of count 14, was sufficient to produce 10.03 kg of methylamphetamine if fully used.
5. [5]
   On 26 February 2020, Mr Tran filed an application for a ruling that all evidence located during the search be excluded from his trial.  On 2 April 2020, Mr Doan filed an application to the same effect.
6. [6]
   In a written outline of submissions dated 27 March 2020, Mr Kimmins explained:

1. “4.
   The Applicant seeks that the Court make the following Orders:

1. i.
   That the search warrant issued on 10 June 2016 is invalid.
2. ii.
   That the evidence obtained as a result of the execution of the search warrant is excluded from the trial of the Applicant.”

7. [7]
   The written outline noted the findings for which Mr Tran contended:

1. “19.
   The Court would find that the Justice, in considering the application, must have been operating under the apprehension:

1. i.
   That the contents of the application were true and correct to the best of the applicant’s knowledge; and
2. ii.
   That the applicant officer was acting in compliance with legislation and policy (ie. The Police Responsibilities Code requirements to take steps to personally assess the veracity of the information relied on), that is, the officer had some degree of personal knowledge of the particulars of the application.

20. The Court would find that the application had the effect of misrepresenting the degree of the applicant officer’s personal knowledge of the particulars of the application and as a result, the issuing Justice was not in a position to consider their task to the standard required by the law; there was a real risk that the issuing Justice placed more weight on the contents of the application than it deserved.  The risk is compounded by the absence of notes, or records of any questioning conducted by the Justice.

21. The Court would find in all of the circumstances that the warrant was not issued in accordance with the law and is thus invalid.”

8. [8]
   In the written outline, Mr Kimmins also dealt with the questions of the exercise of a discretion in the public interest to allow or exclude unlawfully procured evidence on public policy grounds.  I will return to those matters later.
9. [9]
   Counsel for Mr Doan, Mr Walsh, filed a short outline on 2 April 2020, supporting the written submissions of Mr Kimmins. 
10. [10]
    The Crown relied on two documents filed on 2 April 2020: an outline of submissions prepared by Ms Whelan, who appeared for the Crown; and an affidavit affirmed by Ms O'Dea of the Office of the Director of Public Prosecutions, which exhibited copies of the statement of facts, a statement of PCC Giunta, a statement and an addendum statement of DSC McNeill, a statement of DS Celebicanin, the transcript of the committal hearing for Mr Tran on 12 September 2019, the application for the search warrant and the search warrant.
11. [11]
    In his application, Mr Tran had required the attendance of three witnesses who were, at the time, police officers involved, in one way or another, with the search warrant.  These were Detective Senior Constable Anthony Dean McNeill, Plain Clothes Constable Nicholas Giunta and Detective Sergeant Dimir Celebicanin.  However, prior to the hearing on 2 April 2020, Mr Tran’s legal representatives advised the Crown that they did not require any of those persons to be available at the hearing. 

The hearings

12. [12]
    On 2 April 2020, Mr Kimmins explained that the basis for the application had changed.^[1]  There was no challenge to the action of the justice in issuing the search warrant and no allegation that the application for the search warrant or the supporting affidavit lacked sufficient facts to allow the justice to issue the warrant. 
13. [13]
    The sole basis of challenge was an allegation that the police officer who applied for the warrant did not comply with the requirements in the Operational Procedures Manual (the OPM).  It was submitted that the police had acted unlawfully and that the search warrant was invalid because of the failure to comply with duties imposed by the OPM.  It was on this basis that the Bunning v Cross^[2] discretion was said to be enlivened, requiring the court to consider whether to exercise the discretion to exclude the evidence obtained through the search warrant. 
14. [14]
    Mr Walsh adopted the oral submissions of Mr Kimmins.
15. [15]
    At the conclusion of the submissions made for Mr Tran and Mr Doan, Ms Whelan asked that the hearing be adjourned for the Crown to make enquiries as to whether further evidence was available about compliance with procedures.  The adjournment was not opposed by Mr Kimmins or Mr Walsh.  It was granted.
16. [16]
    On 15 May 2020, the hearing resumed.  Ms Whelan, for the Crown, adduced further evidence in the form of an addendum statement from the now Detective Senior Constable Giunta; two pages from DSC Giunta’s notebook; an addendum statement by the now Detective Sergeant McNeill; extracts from the OPM issue 52 from May 2016; a draft form QP 0711 application for search warrant; a draft form QP 0927 supervisor search warrant/application checklist; and a draft search warrant. 
17. [17]
    Mr Kimmins required DSC Giunta for cross-examination.  DS McNeill was not so required. 
18. [18]
    I accept the evidence of DSC Giunta that on 10 June 2016 he was attached to the Criminal Investigation Branch at Acacia Ridge.  He was working with his immediate supervisor, DS Celebicanin, “who directly oversaw my part in this investigation”^[3] including the “preparation of the search warrant”^[4] and that “there was extreme time sensitivity and an urgent nature to swearing out the warrant”.^[5] 
19. [19]
    I understood DSC Giunta’s evidence about the “extreme time sensitivity” and “urgent nature” of the application for the search warrant to be a reference to the information communicated to him by DS McNeill in a briefing about matters included in the application for the search warrant he finalised that day.  In the application he recorded:

“LII^[6] on 10 June 2016 identified a conversation between DOAN and MAI, whereby MAI arranges to meet DOAN in ‘15 minutes’.  Police surveillance on 10 June 2016, cited [sic] a vehicle (maroon coloured Toyota Camry …) which has been previously identified being used by MAI arrive at 623 Beatty Road, Acacia Ridge on two occasions and remain only for a short period of time before leaving again.

Investigators believe that MAI attended 623 Beatty Road, Acacia Ridge for the purpose of delivering Cannabis to DOAN.

At 11.45am on 10 June 2016, police intercepted a bronze coloured RAV 4 motor vehicle … after leaving 623 Beatty Road, Acacia Ridge.  Police located approximately 30 pounds of Cannabis in the vehicle.”

20. [20]
    According to DS McNeill:

“At some time between 11:45am and 1:15pm on 10 June 2016, I attended the Acacia Ridge police station and conducted a briefing to detectives from Acacia Ridge Criminal Investigation Branch, regarding Operation Mike Backstay and the execution of a search warrant at 623 Beatty Road, Acacia Ridge.

The briefing was regarding the recent intelligence surrounding the address and the persons of interest, DOAN and MAI.

I also covered the recent vehicle intercept that yielded 30 pounds of cannabis from vehicle 029VYG, that surveillance operatives had observed leaving 623 Beatty Road, Acacia Ridge.”^[7]

21. [21]
    DSC Giunta was not challenged on any of these matters.  DC McNeill was not cross-examined.
22. [22]
    This indicates the application, affidavit and draft search warrant were prepared and finalised after the briefing, which must have occurred after 11:45 am, when the vehicle was intercepted, and before 1:00 pm, when the warrant was issued by the justice of the peace at the Magistrates Court at Richlands. 
23. [23]
    DSC Giunta had given evidence of urgency at the committal hearing on 12 September 2019, before this particular issue had arisen.  On that occasion he had explained the reason for the urgency as follows:

“There was people at the address and there was, I believe, an intercept prior to it and to secure the people inside the address and secure the evidence.”

24. [24]
    DSC Giunta rejected Mr Kimmins’ contention that he had failed to comply with any of the matters in section 2.8.3 of the OPM.  He identified the relevant parts of the section with which he had complied and then volunteered that there had not been compliance paragraphs (ix) and (x) of the policy appearing on pages 91 to 92, or with the order appearing at page 92, both within section 2.8.3 of the OPM.^[8]
25. [25]
    The following are the relevant parts of section 2.8.3 of the OPM at the relevant time.  I have underlined paragraphs (ix) and (x) and the Order that DSC Giunta said were not followed.

1. “2.8.3
   Obtaining a search warrant

Refer to ss. 150 to 156 of the Police Powers and Responsibilities Act and ss. 3 and 4 of the Police Responsibilities Code in relation to the issuing of warrants.

…

POLICY

When an officer receives information which could result in a result of a place, then prior to the exercise of such power or the grounding of a complaint, or making application, for the issue of a search warrant the officer is to:

1. question the person supplying the information fully to firstly ascertain the reliability of the source and secondly the validity of the information including the freshness of the information – has the informant supplied direct evidence or hearsay?  If the information is hearsay, ascertain what cogency can be applied to it;

2. make an initial assessment of the information, applying the ‘Admiralty System of Intelligence’ classification.  (Criteria developed as an objective assessment of the reliability of the source of the information and of the validity of the information itself.  See Appendix 2.7: ‘Evaluation Admiralty Code’ of this Manual for detailed diagram);

3. carry out such checks as are available to qualify the reliability of the informant and the cogency and validity of the information.  Examples of this may include:

1. (a)
   inquiries by way of address checks, person history checks e.g. through QPRIME;
2. (b)
   checks of other government agency records where accessible;
3. (c)
   checks with other members of the Service and/or other law enforcement agencies where applicable;

4. review information about search warrants issued in the previous year in relation to the place or person suspected of being involved in the commission of the offence, or suspected offence, to which the application relates …;

5. consider the success or otherwise of previous searches conducted on the premises …;

6. not disclose any details of a confidential nature …;

7. be in possession of and outline clearly the facts, as distinct from conclusions, upon which they intend to rely upon [sic] to show reasonable grounds;

8. ensure a search of the cross operations index is conducted to obtain appropriate clearance that the intended action will not compromise the operational integrity of any currently approved major investigation or intelligence assessment in Queensland (for procedures on cross operations index checks see s. 2.10.5: ‘Central register of operations’ of this chapter);

9. ensure the:

1. (a)
   QP 0711: ‘Application for search warrant’ has been checked; and
2. (b)
   QP 0927: ‘Supervisor search warrant/application checklist’ attached to the QP 0711 has been completed,

by a supervisor, of the rank of sergeant or above, prior to seeking issue of the search warrant; and

10. if a supervisor is not available, conduct inquiries through the chain of command for the nomination of a suitable supervisor.  Electronic communication methods should be utilised as necessary.

The supervisor reviewing the search warrant and application is to be satisfied of compliance with the contents of this section and are [sic] to retain and appropriately file the QP 0927 when complete.

ORDER

An officer of the rank of sergeant or above must review each search warrant and application and complete the relevant checklist prior to the applicant seeking issuance from a magistrate/justice.  This order does not apply when the applicant is of the rank of sergeant or above.”

26. [26]
    Mr Kimmins submitted that DSC Giunta had a duty to comply with the OPM and had breached that duty by his failure to comply with the identified parts of section 2.8.3.  He submitted the OPM was a direction by the Commissioner.  For this, Mr Kimmins relied on the Introduction to the OPM, which was in these terms:

“Introduction

The Operational Procedures Manual is issued pursuant to the provisions of section 4.9 of the Police Service Administration Act.

The aim of this Manual is to provide guidance and instructions in salient aspects of operational policing.  To this end members are to comply with the contents of this Manual so that their duties are discharged lawfully, ethically and efficiently.

Failure to comply with the contents of this Manual may constitute grounds for disciplinary action.

The material contained in this Manual is not exhaustive.  It provides Service policy, orders and procedures in relation to many operational policing issues.  It also requires that local procedures be developed at regional, district and station or establishment level.

In recognition of the fact that in policing many decisions must be made quickly and with regard to diverse circumstances it is not possible to instruct members on every possible scenario.

Therefore this Manual outlines general policies and procedures which may be adapted to circumstances as they arise.

The contents will be continually reviewed and updated to ensure currency and consistency with the law and community expectations.

From a professional prospective all members should make themselves familiar with the contents of this Manual as this will better prepare them to carry out the Service’s functions and to deliver an effective level of policing to the community.”

27. [27]
    Mr Kimmins submitted that a failure to comply with any part of the OPM was a breach of s 4.9 of the Police Service Administration Act 1990 (Qld) (the PSAA), which relevantly provides:

1. “4.9
   Commissioner’s directions

1. In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.

2. A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.

3. Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.”

28. [28]
    Mr Kimmins cited the decision of Dowsett J in R v W & Ors^[9] as authority for the proposition that a failure to comply with a police manual is an unlawful act.  He submitted, because DSC Giunta failed to comply with clause 2.8.3 of the OPM, “there is prima facie an illegality from what proceeded from that point on”.^[10]
29. [29]
    Mr Kimmins urged that, in all the circumstances, the court would find that the warrant was not issued in accordance with the law and was thus invalid.
30. [30]
    Mr Walsh again adopted Mr Kimmins’ oral submissions.
31. [31]
    Ms Whelan submitted there was no evidence that there had been any unlawful conduct, but, in any event, the importance of the evidence obtained by execution of the warrant would lead the court to refrain from exercising its discretion to exclude the evidence from the trial. 
32. [32]
    A section of the OPM entitled “Use of Manual” was also tendered.  It followed immediately upon the Introduction, cited by Mr Kimmins.  It was in these terms at the relevant time:

“Use of Manual

POLICY

The Operational Procedures Manual (OPM) became effective on 1 January 1995 drawing together elements of the then General Instructions (GIs) in the Queensland Policeman’s Manual and published Commissioner’s Circulars.

Policy and instructions in this Manual are in the form of Order, Policy and Procedure with these terms being defined in the Service Manual Definitions.  Unless otherwise stated, words and terms defined within the Service Manuals Definitions apply to the contents of all the Service Manuals.

The OPM has been designed as a Service wide document and as such does not generally prescribe instructions unless applicable in all areas of the Service.  In order to recognise the needs of local communities and policing requirements, it will be necessary for officers in charge of regions, districts, and stations/establishments to develop Regional, District and Station/Establishment Instructions to give effect to the OPM at a local level.

Regional, District and Station/Establishment Instructions are to be ancillary to and not conflict with the OPM which will have precedence over any Instructions developed at the local level.

Each chapter in the OPM has an individual table of contents.  The contents of the OPM should be read in conjunction with any relevant legislation.

ORDER

It is incumbent on all members to be aware of the contents of this Manual and any amendments made to it.”

33. [33]
    It was common ground that the Service Manuals Definitions, as at May 2016, included the following definitions:

“Order

an order requires compliance with the course of action specified.  Orders are not to be departed from.

Policy

a policy outlines the Service attitude regarding a specific subject and must be complied with under ordinary circumstances.  Policy may only be departed from if there are good and sufficient reason(s) for doing so.  Members may be required to justify their decision to depart from policy.

Procedure

a procedure outlines generally how an objective is achieved or a task performed, consistent with policies and orders.  A procedure may outline actions which are generally undertaken by persons or organisations external to the Service.”

Consideration of the lawfulness of the search warrant

34. [34]
    The Commissioner is authorised to do “all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge” of her responsibility “for the efficient and proper administration, management and functioning of the police service in accordance with law”.^[11]  In the OPM the guidance and instructions, in the form of general policies, procedures and orders, may be understood as a measure taken by the Commissioner “to ensure compliance with the requirements of all Acts and laws binding on members of the police service”.^[12]  Section 2.8.3 of the OPM may be understood as a measure directed to ensure compliance with s 150 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).
35. [35]
    The categorising of various statements in the OPM as “Orders”, “Policies” and “Procedures” had the effect that a departure from any part of the “Policy” for “good and sufficient reason” was not a failure to comply with the OPM.  It was merely an act that may have to be justified.  As such, it was distinguished from noncompliance with an “Order” that “may constitute grounds for disciplinary action”.  There is no sound basis to contend that a failure to comply with a “Policy”, which an officer might be called upon to justify, makes the officer’s conduct unlawful.
36. [36]
    To understand the position with respect to non-compliance with an “Order”, it is necessary to consider the nature of such disciplinary action. 
37. [37]
    At the relevant time, s 7.4(2) of the PSAA provided that:

“An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.”

38. [38]
    Then, the regulations were the Police Service (Discipline) Regulations 1990 (Qld) (PSDR), which, by reg 9(1)(c), included in the grounds for disciplinary action:

“a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner”.

39. [39]
    The PSDR also provided for the disciplinary action that could be imposed:

1. “5
   Disciplinary powers of the commissioner and a deputy commissioner

Where the commissioner or a deputy commissioner has formed the opinion that an officer should be disciplined, the commissioner or deputy commissioner may order that the officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted.

…

1. 10
   Disciplines that may be imposed

Subject to regulations 11 and 12^[13] (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3)^[14] of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are the following—

1. cautioning or reprimand;

2. a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units;

3. a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank);

4. forfeiture or deferment of a salary increment or increase;

5. a reduction in the officer’s rank or classification;

6. dismissal from the police service.”

40. [40]
    In R v W & Ors, Dowsett J explained the situation then before the court in these terms:

“It now appears that pursuant to s. 11(1) of the Police Act 1937–1985, the Police Rules are to be treated as part of the Act.  It also appears that r. 10(2)(1) of these rules provides that:

‘Each police officer is subject to and shall comply with these rules and the general Instructions and shall obey all lawful orders from those in authority over him.’

It is conceded that the Policeman’s Manual, Exhibit 14, is part of the general Instructions, and that the Police Rules prescribe penalties for non-compliance therewith.  Thus it is conceded that the police are legally bound by the administrative directions and that a failure to comply with them is an unlawful act.”^[15]

41. [41]
    Section 11(1) of the Police Act 1937 (Qld) authorised the Governor in Council to make rules “for the general government and discipline of the members of the Police Force”.  The rules were to be published in the Gazette and, upon publication, were to have “the same force and effect as if they were enacted in this Act”.  In s 11(2), the parliament authorised the rules to provide that a member of the Police Force found “guilty” of an “offence against discipline” was “liable to be punished by the Commissioner”, including by being “fined a sum not exceeding forty dollars”.  Lesser punishments, being dismissed, disrated, transferred or reprimanded, were also available.  Those (now repealed) provisions are quite different in character from the relevant provisions in the PSAA and the PSDR.  Unlike the former Police Rules or the Policeman’s Manual considered by Dowsett J, the OPM does not have the same force and effect as if enacted by the parliament.  It does not create offences. 
42. [42]
    It is apparent from the PSAA and PSDR provisions that a failure to comply with an Order in the OPM was a matter of internal discipline in the ordinary sense.  Such errant or disobedient conduct by an employee ceased to be a criminal matter, at latest, in 1918 with the repeal of the Masters and Servants Act 1861 (Qld).^[16]  The enactment and retention for some time of provisions criminalising ill-discipline in the Police Force may be understood, given the historically important role played by police in the criminal justice system in Queensland.  Since the time of R v W & Ors, the modes of discipline of QPS officers have moved away from the more onerous and punitive regulation under delegated legislation, and closer to those of other employees. 
43. [43]
    Understood in light of the “Introduction”, the “Use of Manual”, the relevant definitions, and the then current statutory provisions, the OPM is an instruction from the Commissioner to members of the Queensland Police Service (QPS) in the nature of instructions that a very senior manager might give to employees under their supervision and control.
44. [44]
    The availability of a range of disciplinary sanctions for a contravention of an “Order” in the OPM does not have the effect of rendering unlawful any conduct that may make a QPS officer subject of a disciplinary sanction.
45. [45]
    The lawful authority to apply for a search warrant is conferred on a police officer by s 150(1) of the PPRA, not by the OPM.  The legal requirements for an application under that authority are found in s 150(5) of that Act.  These are the provisions by which the Parliament “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”.^[17]  It is not alleged that DSC Giunta failed to comply with the statutory requirements.  The OPM does not operate as some additional limit on s 150 of the PPRA. 
46. [46]
    The conduct of DSC Giunta in applying for the search warrant was not made unlawful and did not lack lawful authority by reason of a failure to comply with paragraphs (ix) and (x) of the policy in section 2.8.3 of the OPM.  Nor did the failure of a more senior officer to comply with the order in the section have that effect.  In the circumstances, the search warrant was lawfully sought by DSC Giunta and lawfully issued by the justice of the peace.  The search warrant is valid. 

Bunning v Cross considerations

47. [47]
    The parties also made submissions on the exercise of the discretion to exclude or admit evidence, as considered by the High Court in Bunning v Cross.  These were made in the event that the court found that the search warrant was invalid.  Given the nature of the application by Mr Tran and Mr Doan, it is appropriate to consider those submissions as to how the discretion would be exercised, if the warrant were found to be invalid.
48. [48]
    The relevant discretion must balance the public interest in bringing to conviction those who have committed criminal offences against the public interest in the protection of the individual from unlawful and unfair treatment.^[18]  As well, the discretion is exercised to protect the integrity and reputation of the processes of the court in the criminal justice system.^[19]
49. [49]
    Here, the relevant non-compliance was with two of the ten relevant policy instructions in section 2.8.3 of the OPM and the related order.  They required checking of the search warrant application by a more senior officer.  The checking process appears to be directed, quite properly, to preventing incomplete or unsatisfactory applications being placed before justices of the peace and so preventing persons and their property being subjected to searches if, on review, a more senior officer would identify that the basis for the warrant was incomplete or unsatisfactory in some respect.  The checking process has no logical connection to the manner in which the warrant is executed or how any evidence so discovered is managed.
50. [50]
    DSC Giunta gave evidence that he reviewed the application for the warrant.  When challenged as to the basis for the warrant, he said he would “never swear out a warrant without forming my own reasonable suspicion and reviewing it in its entirety, first”.^[20] When asked more specifically what he remembered doing on 10 June 2016, DSC Giunta said:

“I was provided with a document containing information.  This is the draft application.  I then received a briefing by [DSC] Tony McNeill.  Other members from our office had recently conducted an intercept which resulted in the location of a quantity of cannabis.  I identified that information was reliable and accurate and there was no need to ask further questions of an informant if there is no informant there.  I – I had a relatively good working relationship with Taskforce Backstay, it was known at the time, because a number of our jobs intertwined and I had knowledge of the investigation prior to the application of a search warrant.”^[21]

51. [51]
    DSC Giunta explained, “to me it’s important that the information in there is reliable and accurate, and I have got a reasonable suspicion [there are grounds for the] search warrant”.^[22]
52. [52]
    As Morrison JA explained in R v Milos:^[23]

“evidence obtained by means of an unlawful search can be used as long as the search is conducted in a way that provides all proper safeguards against the evidence being improperly placed in the accused’s possession”.

53. [53]
    There was no evidence that any such safeguard was missing in this instance.  The relevant parts of the OPM were not directed to the safeguards against evidence being placed in an accused’s possession. 
54. [54]
    Mr Kimmins also submitted that the court would find “there was deliberate non-compliance with the OPM’s in the application for the search warrant”.^[24]  If that were so, it would be a sound reason to indicate the court’s disapproval, perhaps by excluding the evidence so acquired.
55. [55]
    I do not accept Mr Kimmins’ submission. 
56. [56]
    DSC Giunta gave evidence that he complied with all of the other relevant requirements in section 2.8.3 of the OPM and interacted with members of the Taskforce Backstay to confirm the information set out in the application for the search warrant.  He explained the “extreme time sensitivity” under which he acted to obtain the warrant and the fact that he did so while working with his immediate supervisor, DS Celebicanin, an officer of the appropriate rank to check and review the application, who directly oversaw DSC Giunta’s work in preparing the application.
57. [57]
    The policy in the OPM requires the QPS officer applying for the warrant to “ensure” the application is checked by an officer of the rank of sergeant or above and the checklist is completed.  It is difficult to understand how, in the chain of command, a more junior officer could achieve that outcome, if the more senior officer involved is not willing to do so – perhaps especially when the matter is urgent. 
58. [58]
    The OPM order requires that a senior officer must review it.
59. [59]
    The former DS Celebicanin provided a statement on 18 July 2019 for the committal hearing.  It was part of the evidence tendered by the Crown in this application.  In it, he explained that he had resigned from the QPS on 16 March 2018.  Understandably, his statement does not deal with this particular matter, which first arose at the hearing on 2 April 2020.  The only matters in his statement of possible relevance are:

“I recall providing assistance to the State Drug Squad at a search warrant that was executed at 623 Beatty Road, Acacia Ridge on 10 June 2016.

…

Plain Clothes Senior Constable Nick GIUNTA was responsible for obtaining the search warrant and prior to the execution of the search warrant, had attended the Richlands Magistrates Court to swear the warrant.”

60. [60]
    No question was put to DSC Giunta to the effect that he deliberately failed to comply with the parts of the OPM.  Nor was he asked anything that might suggest this was other than an inadvertent, accidental or isolated incident occurring under time pressure and with the knowledge of DS Celebicanin, as his immediate supervising officer. 
61. [61]
    There is no evidence to support a finding that the non-compliance with the OPM involved a deliberate cutting of corners, or any recklessness, overt defiance or calculated disregard of the law.^[25] DCS Giunta did not act in that manner.  He was not asked about the attitude or tolerance of officers with higher authority in the QPS to non-compliance with the OPM generally, or this policy and order in particular.^[26]  The existence of the guidance and instruction in section 2.8.3 of the OPM is evidence of the conduct expected by the Commissioner.
62. [62]
    There was compliance with the other relevant steps in the policy. 
63. [63]
    Importantly, DCS Giunta was satisfied that the information in the search warrant application was reliable and accurate; the application set out facts sufficient to ground a reasonable suspicion that evidence of the commission of an offence was at the place to be searched; and he had himself formed that suspicion.  Objectively considered, the grounds in the application constituted a proper basis for the officer’s reasonable suspicion.  There was no failure on the part of DSC Giunta to act in good faith or to disclose to the justice the material relevant to the issue of the search warrant.^[27]  In the circumstances, as noted above, there was no breach of s 150 of the PPRA.
64. [64]
    This non-compliance with parts of the OPM could have had no effect on the cogency of the evidence obtained by execution of the warrant.  The evidence is important.  Without it, 12 counts of contravention of the DMA cannot proceed.  Those counts allege the commission of very serious offences, carrying maximum penalties of up to 25 years’ imprisonment.^[28]

Conclusion on exercise of the discretion

65. [65]
    If it were the case that the non-compliance with these parts of section 2.8.3 of the OPM had the consequence that the conduct of DSC Giunta was unlawful in applying to a justice of the peace for the issue of the search warrant, then, in the exercise of discretion, I would not be satisfied that the evidence obtained through the execution of the warrant should be excluded, notwithstanding the non-compliance.