R v Wayne Henry Applebee [1995] ACTSC 37 (13 April 1995)

SUPREME COURT OF THE ACT

THE QUEEN v. WAYNE HENRY APPLEBEE
No. SCC66 of 1994
Number of pages - 8
Civil And Criminal Rights - Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Civil And Criminal Rights - rights of criminal suspects - effect of failure to give appropriate notice of rights to Aboriginal suspect - questioning commenced and continued after end of applicable investigation period - effect thereof - discretion to admit evidence.

Criminal Law - search and seizure - whether warrant under which search was conducted a valid warrant - whether warrant under which search was conducted had become stale - whether search was conducted outside terms of the warrant - items seized not mentioned in warrant - effect of police officers conducting search and seizure although not named in warrant.

Crimes Act 1914 (Cth), ss10, 23C, 23H.

R v Tillett; ex parte Newton (1969) 14 FLR 101
Brewer v Castles (1984) 52 ALR 577
Parker v Churchill (1986) 9 FCR 334
Coco v R [1994] HCA 15; (1994) 179 CLR 427
Challenge Plastics Pty Limited v Collector of Customs [1993] FCA 247; (1993) 42 FCR 397
Ghani v Jones (1970) 1 QB 693
IRC v Rossiminster Ltd [1979] UKHL 5; (1980) AC 952
Chic Fashions (West Wales) Ltd v Jones (1968) 2 QB 299
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
G v The Director of Public Prosecutions, unreported, Supreme Court,

Australian Capital Territory, 6 March 1995

HEARING

CANBERRA, 9-10 March 1995
13:4:1995

Counsel for the Crown: Mr S Madden

Instructing Solicitors: ACT Director of Public Prosecutions

Counsel for the Offender: Mr G Corr

Instructing Solicitors: Aboriginal Legal Service

ORDER

THE COURT RULES THAT:

The evidence of the search and seizure not be admitted.
The alleged confessional statement not be admitted.

DECISION

HIGGINS J On 5 August 1993 police attended an address at 77 Captain Cook Crescent, Griffith, in the Australian Capital Territory. The residence was the home of the accused, Wayne Henry Applebee, and his family. The purpose of police attendance was to conduct a search of the premises in an effort to locate a number of items of stolen property.

2. The police were armed with a search warrant that had been issued by a Justice of the Peace on 6 July 1993. It was addressed to various officers, including David Edward Harrison, Geoffrey Michael Young and Lesa Maree Gale, described as members of the Australian Federal Police of the City District Task Force in the Australian Capital Territory.

3. The warrant recited that whereas the Justice of the Peace in question, being satisfied by information on oath and placed before her on that date, that:

There are reasonable grounds for suspecting that there is, on
premises situated at 77 Captain Cook Crescent, Griffith ...
things being two Karcha brand air compressors, model numbers
K355 and K315, or anything as to which there are reasonable
grounds for believing that the same will afford evidence as
to the commission of an offence against section 102 of the
Crimes Act 1900 New South Wales as amended in its application
to the Australian Capital Territory, namely burglary. You are
hereby authorised, with such assistance and by such force as
is necessary and reasonable, to enter at any time the said
premises and to seize the said things more fully described
above. And for doing so, this shall be your sufficient warrant.

4. I am satisfied that as at 6 July 1993 there was information from which it might reasonably have been suspected that the items mentioned were stolen and were then on the premises that were mentioned in the warrant.

5. It was not until some four weeks later that police attended the premises identified in the warrant. They arrived at midday and proceeded to gain entry. The occupants of the house, the accused and his wife, were each shown the warrant and subsequently read it aloud. The accused had arrived about 10 minutes after the police officers. The accused's wife was present when the police arrived. A search was conducted of the house and its immediate surrounds. It appears that one officer, while securing the rear of the premises, felt threatened by, and shot, a dog which was in the back yard. Although I am satisfied that police had, up to the time of the search, continued to hold a genuine suspicion that the air compressors mentioned in the warrant were on the premises, no air compressors were found during the course of the search.

6. In a police briefing which was conducted prior to police attending the accused's residence, officers had been instructed to search for stolen goods generally and, in particular, for electrical goods. A large number of items were seized by police including the items referred to in the indictment. Of those items, all but the Nintendo were found and seized by officers who were named in the warrant. The Nintendo was found and seized by Constable Kossatz. He was not an officer to whom the warrant was directed.

7. The warrant was issued pursuant to s10 of the Crimes Act 1914, a provision which has since been repealed and replaced. As it then stood, s10(1) provided as follows:

The Magistrate or Justice of the Peace is satisfied, by
information on oath, that there is reasonable ground for
suspecting ... that there is, in or upon any premises,
anything with respect to which any offence against any law
of the Commonwealth ... anything as to which there are
reasonable grounds to believing that it will afford evidence
as to the commission of any offence ... or that any such thing
may, within the next 72 hours, be brought into or upon the
premises ... and to seize any such thing which he or she might
find there.

8. The information founding the warrant was produced to the court. It identified the offence being investigated, of which the compressors were alleged to be the proceeds, with more particularity than does the warrant. It made it plain that the warrant was intended to relate to a particular burglary offence of which the compressors were the proceeds. The terms of the warrant should, therefore, be so construed.

9. It was contended by counsel for the accused that the search and seizure of evidence based upon the warrant described above was unlawful. The first ground was that the warrant was not executed until about one month after its issue. It was contended that it had become stale as a result. The second ground raised was that the warrant did not authorise a general search for any stolen goods other than the compressors and it was clear that the express intention of the searchers was to search generally for stolen goods. Further, it was contended that the warrant had not authorised Constable Kossatz to assume the role of a searcher rather than that of a person assisting an officer named as a searcher in the warrant. I shall address each of these contentions in turn. Was the warrant stale?

10. The reason for delay in the execution of the warrant was that police had desired to keep the premises under surveillance. They deliberately chose not to execute the warrant promptly. They had a suspicion that evidence relating to other offences might be discovered. If additional information had been obtained leading to a reasonable suspicion that evidence relating to other offences might have been found on the premises, a fresh warrant could have been applied for. The terms of the briefing given to the police search party prior to the search indicates that there was, in all probability, such further information.

11. It is well settled that if, in the course of a lawful search, evidence of another offence is discovered, that evidence may be seized, notwithstanding the lack of a warrant to enter and seize the item or items considered to provide such evidence: see Chic Fashions (West Wales) Ltd v Jones (1968) 2 QB 299. However, whilst at common law a constable may take into possession evidence of an offence; he or she may not commit trespass to do so: see Coco v R [1994] HCA 15; (1994) 179 CLR 427. The occasion of the due execution of a valid warrant is not a trespass unless the occasion is misused: see Challenge Plastics Pty Limited v Collector of Customs [1993] FCA 247; (1993) 42 FCR 397.

12. It is clear that no express time limit was imposed for the execution of the warrant. Counsel for the Crown agreed that some time limit must be implied. It would have been prudent for a time limit to have, in fact, been specified. That issue was not addressed by the information placed before the Justice nor by the warrant issued. It seems to me that, as s10(1) confers a discretion on a Justice to issue a warrant, it is open to the Justice to impose conditions. That power should be exercised judicially. Such conditions might properly relate to matters such as the hours between which the warrant might be executed to avoid unreasonable inconvenience to persons on the premises to which entry is authorised. They might restrict the manner or method of the search in some other manner considered appropriate and relevant. A condition might well be imposed limiting the time within which the warrant may be executed.

13. The matter of R v Tillett; ex parte Newton (1969) 14 FLR 101 is authority for the view that a search warrant must specify the things to be seized with sufficient particularity, either by reference to those things or by reference to the particulars of the offence being investigated or both. This warrant, as expressed, could be read as providing for the seizure of anything which might afford evidence of any burglary committed at any time anywhere. In my view it can, however, though badly drafted, be confined to a search for compressors stolen in the burglary referred to or anything associated otherwise with them or with that offence. Brewer v Castles (1984) 52 ALR 577 indicates that the warrant is to be interpreted from the standpoint of the ordinary person reading it. A warrant does not confer an unlimited power of seizure: see Parker v Churchill (1986) 9 FCR 334.

14. Not all premises which are to be searched are occupied by persons who are suspected to be offenders. As Coco v R (supra) makes clear, the power to enter premises for law enforcement purposes must be confined to that which is authorised by law. In Coco, a power conferred by warrant issued pursuant to a statutory provision to enter premises to install listening devices was held not to include a power to authorise an entry which otherwise would be a trespass. If s10 of the Crimes Act authorises what otherwise would be a trespassory entry, and all previous authority has at least tacitly accepted that, the warrant must clearly define the scope of the authority it confers and must not be exceeded.

15. That is also true of the duration of the authority. It would be intolerable for an authority to enter premises to search to be unlimited in time. A Justice would normally assume that a warrant to search for stolen goods would be executed as promptly as was practicable and reasonable. If that was not possible or not desired, the warrant, if issued, should be revoked or surrendered. It may, in some circumstances, be appropriate for an issuing Justice to grant an extended time for execution of a warrant. A warrant to search for evidence is, however, different in kind from a warrant to intercept telecommunications or other communications. In the latter case, interception over a period of time may be necessary to render the information obtained useful and relevantly intelligible.

16. In those cases, an extended time for an authority to be extant would be expected. Where it is proposed to search for and, if found, to seize evidence relating to an offence, urgency would be assumed. The warrant in this case was not promptly executed. It was not executed within a reasonable time. In my view, once there had been a failure to execute the warrant within a reasonable time, it ceased to authorise the entry which in fact was made. It follows that the search and seizure which occurred on 5 August 1993 was unlawful.

Was the search in fact conducted outside the terms of the warrant?
17. Even if the warrant had not expired, it is clear that it authorised only the search for and seizure of the goods referred to in it. The officers conducting the search intended to search for and seize other items. They did not stumble across other items in the course of an otherwise lawful search. If, for example, the two compressors had been seen immediately on entry and seized, no further search would have been authorised. This was not a case where other evidence of the relevant burglary than the compressors themselves could reasonably have been expected.

18. In this case, whilst it was reasonable to secure the premises to ensure that there was no danger to police or removal of the evidence being sought, it was neither reasonable nor necessary to search more than sufficient to observe that the compressors, conceded to be bulky objects, were not on the premises. It is apparent that the search was, and was intended to be, a general search for goods suspected of being stolen. It was very much more intrusive and extensive than required for that purpose. The very list of things seized and the description of the search reinforces that conclusion. The reported briefing, in which officers were instructed to search generally, particularly for electrical goods, also supports that view. In my opinion, the warrant, even had it not expired, would not have authorised the search and seizure in fact undertaken, including, therefore, the seizure of the items referred to in the indictment.

19. That proposition is consistent with the decision of Heerey J in Challenge Plastics Pty Limited v Collector of Customs (supra). In that case, his Honour expressly declined to follow Ghani v Jones (1970) 1 QB 693. It was held that whilst any suspected goods found in the course of an otherwise valid search may be seized, the purpose of the search must be limited to the valid authority, if any, conferred by the warrant and by the legislation under which it is issued. Thus, where the warrant authorised the seizure of documents relating to certain goods, it did not authorise the seizure of other documents on the basis that they might be relevant to other possible offences.

20. Section 10, it may be noted, is in different terms to the legislation considered by the House of Lords in IRC v Rossiminster Ltd [1979] UKHL 5; (1980) AC 952. That legislation was held to authorise the search for and seizure of evidence relating to offences other than the particular offences in respect of which the warrant was granted. Section 10 is limited in terms to authorising the seizure of the "things" nominated in the warrant, being "things which will or might afford evidence as to the commission of an offence of the kind referred to".

21. Whilst that does not necessarily exclude seizure of goods adventitiously found in the course of the authorised search, as Chic Fashions (West Wales) Ltd v Jones (supra) held was permissible, it does preclude a general search for stolen goods. The search must be confined in kind and scope to that which is necessary to find the "things" for which the search is authorised.

22. That was not what occurred in this case. Accordingly, the search and seizure was unlawful for these reasons also.

The position of searching officers not named in the warrant
23. Constable Young, had the search been valid, was entitled to enter and search in accordance with it. He was the warrant holder. There were other officers named in the warrant who were similarly so authorised. Those officers were entitled by the warrant to avail themselves of "such assistance as is necessary and reasonable": see s10(1) Crimes Act. Thus if, for example, a named constable was refused entry, he could direct a constable not named in the warrant to break open a door, if that was necessary and reasonable to effect entry. Similarly, aid might be needed to take away items seized or to break open cupboards or whatever. However, s10(1) does not authorise the named officers to delegate the authority to enter and/or the authority to seize items to any other officer not so named. It is part of a Justice's responsibility in issuing a warrant to ensure that officers named in the warrant are suitable persons to act pursuant to the authority given. In this case, authority was wrongly delegated by the warrant holder to Constable Kossatz, an officer who was not named in the warrant, to take an active part in the search as if he was a person named in the warrant. He recovered and seized the Nintendo system. That seizure of those goods was, therefore, unlawful for that additional reason.

The discretion to exclude evidence unlawfully obtained
24. I ruled that none of the evidence unlawfully obtained should be admitted in evidence. In this case, in relation to the search of the accused's premises, police did not act in knowing disregard of the rights of the accused and the other occupants of the subject premises. However, the invasion of their rights was substantial as well as being clearly unlawful. There was actual damage. A dog was killed and a large number of items of property was seized and taken away. Only a small number of those items were referred to in the indictment, although, of course, there was also a quantity of cannabis seized. The cannabis was, undoubtedly, an illicit substance and could have been the subject of seizure if adventitiously discovered in the course of an otherwise lawful search. Indeed, I have assumed for the purpose of this ruling, that each seizure was the result of a relevant reasonable suspicion.

25. Authority for the ruling made to exclude the evidence as to the location and seizure of the items in question can be found in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177. That case involved an exercise of discretion to admit or exclude evidence in relation to the unlawful seizure of goods. The exercise of the discretion to admit or exclude unlawfully obtained evidence depends on considerations of fairness and public policy.

26. I have also had regard to the difficulties the prosecution will face in trying to prove the case against the accused. The charge alleges possession by the accused of goods that were, to his knowledge, stolen. Possession by the accused would be difficult to prove where the accused was not the sole occupant unless there was other evidence, such as his position in the household and his apparent dominion over its contents. That was not an impossible task but it was a difficult one. The accused has made no admissions that he knew, or believed, the goods in question to have been stolen although some of the statements he made, had they been admitted in evidence, could have supported a finding of possession. Knowledge of the status of the goods would have to be inferred. Again, that is possible but it is far from inevitable. Further, even if those matters had been found in favour of the prosecution, it was necessary for the prosecution to exclude the possibility that the accused in fact stole, rather than merely dishonestly handled, the goods. The prosecution conceded there was no admissible evidence available to be called which could assist on that issue. Given those difficulties, it may well be that no prima facie case could have been made out. I do not need to express a decided opinion on that issue. It is enough in the context of a discretionary judgment to conclude that the Crown case is not a strong one. I note that Gallop J, in G v The Director of Public Prosecutions, unreported, Supreme Court, Australian Capital Territory, 6 March 1995, decided that such a consideration was relevant to a discretionary judgment whether or not to order a stay of proceedings. The position in relation to the discretion I had to exercise at this trial is similar.

27. There is a public interest in the due and proper execution of warrants. There is a strong public interest in protecting citizens, even those under reasonable suspicion of having committed criminal offences, from unauthorised intrusions. Further, the offence charged in this case, though serious, is not such as to excite public outrage if the prosecution is unable to proceed for lack of lawfully obtained evidence. There is a public interest in the successful prosecution of offenders but in this case the other factors, in my view, outweigh it.

28. I therefore ruled that the evidence of the search and seizure would not be admitted if tendered.

The Confessional Statement
29. I refer, also, to the confessional statement which was to be tendered in evidence. It contained no direct admissions of guilt, although it might have assisted on the issue of possession of the goods in question. That record of interview was obtained in breach of ss23C and 23H of the Crimes Act 1914 (Cth). The accused is of Aboriginal descent. Questioning began well after the two hours from the commencement of the investigation period referred to in s23C. Further, although Constable Harrison, who conducted the interview, stated that he was not aware that the accused was Aboriginal, he should have been aware. The appearance of the accused was consistent with him being, in fact, a person of Aboriginal descent. The acused should have been asked if he was of Aboriginal or Torres Strait Islander descent. He was not asked. No interview friend was present as a result. Even had the interview been commenced and concluded within the statutory limited period, it would have been an unlawful interview.

30. In any event, questioning was continued though the accused had indicated a desire to have a solicitor present before being interviewed. It is true that he later waived that requirement. Nevertheless, I cannot positively conclude that he did so freely. I can, however, conclude that it was conducted unfairly to the accused. His wishes should have been respected. At least he should have been permitted to consult a legal adviser before his waiver was accepted and acted upon.

31. The evidence represented by the record of interview was, therefore, unlawfully obtained.

32. The alleged confessional statement contained very little that could have assisted the prosecution case. The disregard of the rights of the accused, rights granted by the Parliament of the Commonwealth, was reckless, although I am not positively persuaded that it was deliberate. It could easily have been avoided. It was my view that the public interest in fairness to the accused and in observance of safeguards granted to suspected persons, outweighed the public interest in admitting evidence otherwise relevant against a person alleged to have committed an offence, particularly in circumstances where the prosecution case is not a strong one.

33. For those reasons, I ruled that the alleged confessional statement should not be admitted in evidence if tendered.