R v Kaihe & Dang[2022] QSCPR 7

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicants are each charged on indictment with the following offences:

1. trafficking in methylamphetamine between 30 November 2019 and 26 February 2020 (count 1);
2. possessing methylamphetamine in excess of 2 grams on 25 February 2020 (count 2);
3. possessing anything used in the commission of trafficking in a dangerous drug on 25 February 2020 (count 3); and
4. trafficking in methylamphetamine between 2 February 2021 and 18 February 2021 (count 4).^[1]

1. [2]
   The first applicant is also charged individually with a further count of possessing a thing used in connection with the commission of the crime of trafficking in a dangerous drug (count 5) and possessing methylamphetamine (count 6).

1. [3]
   It is common ground between the parties that the evidence relied upon for counts 1 to 3 was obtained during a search of the applicants’ house on 25 February 2020. It is the evidence obtained in the course of that search which is the subject of this application.

1. [4]
   It appears from the respondent’s draft statement of facts, which the applicants did not contest for the purposes of this application, that the evidence relied upon for counts 4 to 6 was obtained during a search of the applicants’ house on 17 February 2021. The applicants make no complaint about this later search.

1. [5]
   The search conducted on 25 February 2020 was executed pursuant to a search warrant issued by a Magistrate on 17 February 2020. A copy of that warrant was before the Court as an attachment to the outline of submissions filed on behalf of the first applicant. The warrant stated on its face that it ended at midnight on 24 February 2020, 7 days after it was issued. That time period accords with section 155(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld) (the Act).

1. [6]
   The respondent concedes that the execution of that search warrant on 25 February 2020, after it had expired, was unlawful.

1. [7]
   The applicants seek the exclusion of the evidence obtained during the search on 25 February 2020. The issue on this application is whether the discretion to exclude the evidence which was obtained unlawfully should be exercised in this case.

Nature of the discretion to exclude unlawfully obtained evidence

1. [8]
   The Court has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police.

1. [9]
   The nature of the discretion and the principles upon which it is founded were first expressed by Barwick CJ in R v Ireland:^[2]

“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.”

1. [10]
   In Bunning v Cross,^[3] Stephen and Aickin JJ (with whom Barwick CJ agreed) confirmed that the statement in Ireland represents the law in Australia before observing:^[4]

“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.”

1. [11]
   Stephen and Aickin JJ later referred to “society’s right to insist that those who enforce the law respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired,”^[5] and observed that toleration by the courts of “wholesale and deliberate disregard” by police of safeguards enacted by the legislature to protect individual liberties would result in the effective abrogation of those safeguards.^[6] However, it may not be appropriate to exercise the discretion to exclude evidence resulting from isolated and merely accidental non-compliance with statutory safeguards, at least when the reception of the evidence “does not demean the court as a tribunal whose concern is in upholding the law.”^[7]

1. [12]
   A number of factors or criteria have been recognised by Australian courts as being potentially relevant to the exercise of the discretion in the circumstances of a particular case. It must be remembered, however, that Stephen and Aickin JJ warned in Bunning v Cross that such criteria could not be identified in the abstract but only by reference to the circumstances of a particular case.^[8]

1. [13]
   As Applegarth J observed in R v P & Anor,^[9] these factors may, depending on the circumstances of the particular case, include:^[10]

1. whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
2. the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
3. the importance of the evidence in the proceeding;
4. the nature and seriousness of the offence;
5. the nature of the unlawful conduct;
6. whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
7. how easy it would have been to comply with the law.

1. [14]
   Some factors will, if present, support exclusion of the evidence, while other factors will support its admission. The weight to be given to competing factors depends upon the circumstances of the particular case.

Factual circumstances

1. [15]
   On 17 February 2020, Senior Constable Boswell prepared an application for a search warrant for the applicants’ residence at 20 Malthus Street, Carina and submitted that application to a clerk at the Magistrates Court at Holland Park.

1. [16]
   At that time, Senior Constable Boswell was attached to Southbank police station, but was relieving at the Upper Mount Gravatt police station in its Tactical Crime Squad. He was the executing officer in respect of the search warrant for the applicants’ residence. That meant, as Senior Constable Boswell accepted in cross-examination, that he was responsible for ensuring the police complied with the conditions on the search warrant.

1. [17]
   Although the usual course was for Senior Constable Boswell to submit an application and receive the search warrant (if granted) on the same day that did not occur in this case. He did not receive the search warrant for the applicants’ residence until the day after he made the application, that being on 18 February 2020, when it was placed into his in-tray at the Upper Mount Gravatt police station. Senior Constable Boswell then placed the search warrant in a file folder which he maintained in respect of the investigation into the applicants’ alleged criminal activities.

1. [18]
   On 18 February 2020, Senior Constable Boswell and other officers from the Upper Mount Gravatt Station executed search warrants at other addresses. For the remainder of the week which followed Senior Constable Boswell was engaged in duties relating to a homicide investigation which was the subject of significant media attention.

1. [19]
   Senior Constable Boswell then arranged for the search warrant to be executed on 25 February 2020. He chose that date because there were other warrants the police intended to execute that day. He explained in his cross-examination that this was done for reasons of operational convenience and accepted that it would have been relatively simple for the police to have executed the search warrant at the applicants’ residence within the period it remained valid. Senior Constable Boswell conducted a briefing for the other officers who were to be involved in the search before it was conducted.

1. [20]
   Police arrived at the applicants’ residence at approximately 9 am. At that time the second applicant was in the front yard speaking to two people. The police located the first applicant in the living room of the house with another man. The police detained the applicants while the search was undertaken.

1. [21]
   The draft statement of facts records that the police asked the first applicant whether there was anything he wished to declare prior to the commencement of the search. In response, the first applicant directed police to a container located in a basket in the living room which held 7.178 grams of crystal substance found to contain 5.483 grams of pure methylamphetamine. Police also located a metal safe which held 5.258 grams of crystal substance found to contain 4.027 grams of pure methylamphetamine. These substances are the subject of the possession charge in count 2. Police also located a spiral notebook containing two ‘tick’ sheets which is the subject of count 3.

1. [22]
   During the search the police seized a mobile phone. Senior Constable Boswell confirmed in cross-examination that the first applicant provided police with the PIN code to that mobile phone after Senior Constable Boswell explained to him that the search warrant contained an order requiring that he provide the PIN code and that it was an offence to refuse to provide the PIN code. The draft statement of facts indicates that the evidence supporting the trafficking charge in count 1 was obtained from this mobile phone.

1. [23]
   The senior officer present during the execution of the search warrant was Sergeant Bell, who also gave evidence on the hearing of the application. Although he provided guidance to officers involved in the search, Sergeant Bell confirmed that it was Senior Constable Boswell who had possession of the search warrant and overall responsibility for its proper execution. Sergeant Bell did not look at the warrant before it was executed and I infer that none of the other officers involved in the search did so. Sergeant Bell and those other officers were relying on Senior Constable Boswell, as the executing officer for the search warrant, to ensure that the search was executed within the terms of the warrant.

1. [24]
   Senior Constable Boswell gave evidence that, at the time the search warrant was executed, he believed it remained in effect until midnight on 25 February 2020. He said that he did not become aware that the search had been conducted after the warrant had expired until about mid-May 2020 when he commenced preparing the brief of evidence. I note that the date the warrant was executed was recorded on the third page of the document, directly beneath the section which stated that the warrant ended at midnight on 24 February 2020. The person who recorded the date the warrant was executed, if paying attention, would have seen the end date of 24 February 2020 and should have appreciated that the warrant was executed after it had expired. However, no evidence was led as to who completed this part of the warrant or when that occurred. In those circumstances, I accept Senior Constable Boswell’s evidence as to when he became aware that the search had been conducted unlawfully.

1. [25]
   On 19 May 2020, Senior Constable Boswell had a telephone conversation with Senior Sergeant Thorne who is attached to the South Brisbane District Brief Management Unit of the Queensland Police Service and is a Principal Prosecutor with 33 years’ experience. Senior Constable Boswell informed Senior Sergeant Thorne that the search warrant for the applicants’ residence had expired prior to its execution and sought advice on how to proceed. Senior Sergeant Thorne recommended that the charges arising from the unlawful search be withdrawn. Senior Constable Boswell did not follow that advice.

1. [26]
   After speaking to Senior Sergeant Thorne, Senior Constable Boswell then telephoned the Office of the Director of Public Prosecutions and spoke to a male person who he believed to be a legal officer within that office, but whose identity he could not recall when giving evidence at the hearing of the application. The effect of that discussion was that Senior Constable Boswell informed the legal officer that the search warrant for the applicants’ residence had been executed a day late. He was told by the legal officer that he should compile a brief of evidence and submit it for the consideration of the DPP.

1. [27]
   Senior Constable Boswell then prepared a statement to be included in the brief of evidence. That statement addressed the application for, and issue of, the search warrant. It then described the events which occurred when the warrant was executed on 25 February 2020. It made no mention of the fact that the warrant had expired before it was executed. Under cross-examination, Senior Constable Boswell denied the suggestion that he had left that fact out deliberately, the suggestion put to him being that at the time of making his statement that he hoped that no-one would realise the mistake he had made. He said that he could not now recall why he did not refer in his statement to the expiry of the search warrant, but explained that he believed he had notified the appropriate people through his earlier conversations with Senior Sergeant Thorne and the legal officer at the DPP. I am not satisfied that this omission from the statement was a deliberate attempt by Senior Constable Boswell to conceal his error. Nevertheless, it is concerning that the material disclosed to the applicants’ legal representatives in the brief of evidence apparently did not identify that the search had been executed unlawfully. Although he initially denied the suggestion that the omission rendered his statement misleading, Senior Constable Boswell ultimately accepted that he should have included the fact that the warrant had expired before it was executed in his statement.

Reckless disregard for the law

1. [28]
   The applicants do not submit that the unlawful search involved a deliberate disregard of the law.

1. [29]
   I accept that Senior Constable Boswell was aware that a search warrant must be executed in accordance with the conditions set out on that warrant. If he had been aware on 25 February 2020 that the search warrant had expired the previous day, he would not have gone ahead with the search on that date. I also accept Sergeant Bell’s evidence that he would never had entered the applicants’ property or allowed other police officers to have done so if he had been aware that the search warrant had expired before the search was conducted.

1. [30]
   The execution of the search warrant after it had expired was the result of Senior Constable Boswell’s mistake as to the date on which the warrant expired. The applicants submitted that the mistake amounted to reckless disregard for the law and to the limitations on the powers conferred by the search warrant. The respondent sought to characterise that mistake as a mere oversight or accidental non-compliance with the law.

1. [31]
   The mistake was the result of Senior Constable Boswell having failed to read the search warrant, or at least to read it closely enough to properly identify its end date. He candidly accepted as much under cross examination. At the time he gave evidence, he did not have any recollection of reading the search warrant before executing the search. He did not claim to have checked the date the warrant ended.

1. [32]
   This was a serious failing on Senior Constable Boswell’s part. I accept Sergeant Bell’s evidence that standard police procedure required that the executing officer for a search warrant review the terms of the search warrant and, in particular, the date the warrant would end. It was for that reason that Sergeant Bell, and, I infer, the other police officers who attended the briefing given by Senior Constable Boswell before the search, expected that Senior Constable Boswell had done that before arranging for the search warrant to be executed on 25 February 2020.

1. [33]
   The question whether a mistaken belief as to the lawfulness of a search can be characterised as reckless was considered by Applegarth J in R v Versac.^[11] In that case police had searched a vehicle in the belief that, having a reasonable suspicion that unlawful dangerous drugs were in the vehicle, they were authorised to search it without a warrant. That belief was mistaken and reflected an ignorance of the requirements for an emergent search under s 31(1)(c) of the Act. Applegarth J concluded that the unlawfulness of the search reflected a reckless disregard of the constraints imposed by law under s 31.^[12]

1. [34]
   In reaching that conclusion Applegarth J considered two cases which considered the meaning of the word “reckless” in the context of statutory enactments of the public policy discretion. DPP v Nicholls^[13] involved an application to exclude evidence under s 138(1) of the Evidence Act 1995 (NSW) where it was obtained improperly or in contravention of an Australian law. One of the matters the court could take into account in exercising that statutory discretion was whether the impropriety or contravention, by which the evidence was obtained, was deliberate or reckless. In that context, Adams J stated that the term “reckless” requires a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect will be substantially prejudiced.^[14] In DPP v Leonard,^[15] which considered the exercise of the same statutory discretion, James J stated that police conduct might be characterised as “reckless” where the relevant officer failed to give any thought to whether there was a risk of a search being illegal, in circumstances where, if any thought had been given, it would have been obvious that there was such a risk.^[16]

1. [35]
   In R v Toon,^[17] another case involving the search of a vehicle without a warrant, Henry J referred to the “contextual gravity” of the police officer’s error, including that the error was “very elementary”, in concluding that the conduct, although the result of a genuine error, was reckless.^[18]

1. [36]
   Similar considerations lead me to conclude that the unlawfulness of the search in this case was the consequence of Senior Constable Boswell’s reckless disregard of the constraints imposed upon the authority to search conferred by the search warrant.

1. [37]
   If Senior Constable Boswell had given any thought to the need to review the search warrant to confirm the date it ended, as required by standard procedure, it would have been obvious that a search undertaken on 25 February 2020 would be illegal. His failure to review the warrant before he arranged the date for the search, before he briefed the other police officers involved in the search or, at the latest, before the warrant was executed, involved a serious disregard of a condition upon the authority conferred by the search warrant.

1. [38]
   The conduct of Senior Constable Boswell in failing to review the end date of the search warrant prior to its execution has significant weight in favour of the exclusion of the evidence.

The cogency of the evidence

1. [39]
   The applicants accept that the evidence obtained during the search on 25 February 2020 is cogent evidence of the offences for which they have been charged under counts 1 to 3. The unlawful search did not affect the cogency of that evidence.

1. [40]
   In R v Versac,^[19] Applegarth J considered that in circumstances where evidence that is vital to a conviction is cogent, and its cogency is not affected by the unlawful conduct, some weight should be placed on the cogency of the evidence as a factor favouring admission. I agree with that observation and, based on the same reasoning, consider that the cogency of the evidence is a factor favouring admission in this case.

The importance of the evidence in the proceeding

1. [41]
   As noted in [3] above, all of the evidence relied upon for counts 1 to 3 was obtained during the search on 25 February 2020. There is no untainted evidence that could stand in its place.

1. [42]
   The respondent also submits that exclusion of the evidence will significantly weaken the case against the second applicant under count 4 which, on the prosecution case, is effectively a continuation of the conduct alleged in count 1. In terms of count 4, the evidence found during the lawful search on 17 February 2021 only relates to the first applicant’s trafficking. The prosecution intends, if the evidence obtained from the search on 25 February 2020 is admitted, to rely on the evidence going to count 1 to prove the second applicant’s involvement in count 4.

1. [43]
   The applicants accept that the importance of the evidence to the successful prosecution of counts 1 to 3 is a factor favouring its admission.

The nature and seriousness of the offences

1. [44]
   The seriousness of the alleged offences is also a factor which supports the admission of the evidence. In R v Milos,^[20] Morrison JA (with whom Fraser JA and Flanagan J agreed) said:^[21]

“When one considers the offences with which the appellant was charged, specifically trafficking and possession of methylamphetamine, the seriousness of the charges has to be weighed in the balance with the issue that the items seized under search were unlawfully seized. The nature of those charges, and the repeated statements in various courts to the effect that drug trafficking is a scourge on society, suggests that if the balance of competing considerations is to tip any way, it should tip in favour of the admission of that evidence.”

1. [45]
   Having regard to the warning given by Stephen and Aickin JJ in Bunning v Cross referred to in [12] above, I consider this to be an assessment of the weight of the factors in the circumstances of that case, rather than the expression of a rule that the seriousness of the offence of trafficking methylamphetamine must always tip the balance in favour of the admission of unlawfully obtained evidence.

1. [46]
   Nevertheless, this statement illustrates the importance of considering the seriousness of the offences to inform the weighing of the competing public requirements referred to in the passages extracted in [9] and [10] above.

1. [47]
   Again, the applicants accept that the seriousness of the offences is a factor favouring the admission of the evidence.

The nature of the unlawful conduct

1. [48]
   I have already addressed this factor to some degree in concluding that Senior Constable Boswell’s failure to review the search warrant amounted to reckless disregard of the constraints imposed upon the authority conferred by the search warrant.

1. [49]
   As noted in George v Rockett,^[22] the enactment by the legislature of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is a reflection of the legislature’s concern to give a measure of protection to rights of private property and of privacy which the common law has always valued highly and which it went to great lengths to protect. To insist on strict compliance with the statutory conditions governing the issue and execution of search warrants is to do no more than give effect to the purpose of the legislation.

1. [50]
   In my view, the search of the applicants’ home without lawful authority involved a more significant intrusion upon their privacy and their property rights than the search of a vehicle.^[23]

1. [51]
   Senior Constable Boswell was aware that the powers conferred by a search warrant have to be executed in accordance with the terms of that warrant, and had been aware of that since he had undertaken training at the police academy. The importance of police reviewing the terms of a search warrant to ensure that it is executed in compliance with those terms explains why police receive training about those matters, as well as the adoption of the standard procedure which Sergeant Bell referred to (see [32] above).

1. [52]
   I do not accept the respondent’s submission that requiring police to read a search warrant with sufficient care so as to identify the date the warrant ends would amount to a requirement that the warrant be gone over with “a fine magnifying glass”. That submission is inconsistent with the standard procedure referred to by Sergeant Bell.

1. [53]
   In my view, the purported use of a power which entailed the invasion of the privacy and property rights of the applicants with so little regard for what was actually permitted by the terms of the search warrant is an error which weighs heavily in favour of excluding the evidence.

Whether such conduct is encouraged or tolerated by those in higher authority

1. [54]
   Senior Constable Boswell has not been subject to any internal disciplinary action within the police force as a consequence of the unlawful search. He accepted in cross-examination that there had been no consequences at all for him as a result of his mistake, but for having to give evidence on the hearing of this application.

1. [55]
   Although Senior Sergeant Thorne, when informed of the unlawful search, gave advice that counts 1 to 3 should be withdrawn, the absence of any internal disciplinary action or other consequences for Senior Constable Boswell does suggest that the failure to review the search warrant before executing it has been tolerated by those in higher authority in the police force. This factor weighs in favour of exclusion.^[24]

The ease of compliance with the law

1. [56]
   I have already referred to Senior Constable Boswell’s acceptance that it would have been relatively simple for the police to have executed the search warrant at the applicants’ residence within the period it remained valid (see [19] above). He also accepted that there was no impediment to him obtaining a further search warrant after 25 February 2020 and it would have been a relatively simple process to obtain a further warrant if he had become aware of the need to do so. There was no urgency which required that the search occur on 25 February 2020.

1. [57]
   All that was required in order for the police to comply with the law in this case was for Senior Constable Boswell to follow standard procedure by reviewing the search warrant to verify the date it ended before it was executed.

1. [58]
   I agree with the observation of Henry J in R v Toon^[25] that the ease with which police could have behaved lawfully means the Court should be reluctant to accept such a lax approach to compliance with legislative requirements that bear upon the government’s interference with the property of citizens. For that reason, I consider that the ease with which the law could have been complied with in this case is a factor which favours exclusion of the evidence. This is despite the fact that the unlawfulness did not involve a deliberate “cutting of corners”.

Conclusion

1. [59]
   Despite the seriousness of the offences charged in counts 1 to 3, the cogency of the evidence and its importance to a successful prosecution, I consider that this is an appropriate case for the exercise of the discretion to exclude the evidence. In the circumstances of this case, the public interest in bringing a wrongdoer to justice and the factors favouring the admission of the evidence are outweighed by the factors favouring its exclusion. The warrant could have been executed before it ended or a further warrant could easily have been obtained. This is a case where the evidence could easily have been lawfully obtained. The failure to review the search warrant to verify the date it ended before undertaking the search means that the purported use of a power with so little regard to what was permitted by the terms of the search warrant is an error of such magnitude as to tilt the balance of public interest against the receipt of the unlawfully obtained evidence. I am concerned not to condone or encourage the grave laxity of approach exhibited in this case by admitting the evidence.

1. [60]
   Accordingly, I direct that the evidence obtained as the result of the search conducted on 25 February 2020 of 20 Malthus Street, Carina be excluded from the trial of the applicants.