R v Singh [1999] ACTSC 28 (12 April 1999)

Last Updated: 3 September 2004

R v ANU SINGH [1999] ACTSC 28 (12 April 1999)

CATCHWORDS

CRIMINAL LAW - admissibility of evidence said to have been illegally or improperly obtained - whether s 138 of the Evidence Act 1995 (Cth) applies to illegal or improper conduct by persons other than investigating officials - whether test the same as at common law.

CRIMINAL LAW - remand centres - whether search of locker allocated to detainee illegal or improper - powers of Superintendent.

CRIMINAL LAW - search warrants - whether warrant holder may delegate power of seizure.

EVIDENCE - admissibility of evidence said to have been illegally or improperly obtained - whether s 138 of the Evidence Act 1995 (Cth) applies to illegal or improper conduct by persons other than investigating officials - whether test the same as at common law.

Remand Centres Act 1976, s 9, 20, 21

Evidence Act 1995 (Cth), s 138

Crimes Act 1900 (ACT), s 349G

R v Rooke (unreported, NSW Court of Criminal Appeal, 2 September 1997)

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

Wayne Henry Applebee (1995) 79 A Crim R 554 at 559

No. SCC 49 of 1998

Coram: Crispin J

Supreme Court of the ACT

Date: 12 April 1999

IN THE SUPREME COURT OF THE )

) No. SCC 49 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ANU SINGH

REASONS FOR RULING

Judge Making Order: Crispin J

Where Made: Canberra

Date of Order: 12 April 1999

1. During the course of this trial objection was taken to the tender of documents consisting of a print out of certain provisions of the Crimes Act 1900 and a number of letters which had been seized from a locker allocated to the accused at the Belconnen Remand Centre (`BRC').

2. On 17 April 1998 police executed a search warrant at BRC and obtained a number of unrelated documents. During the execution of that warrant, Constable Morgan was apparently informed by Mr Folpp, the Superintendent of BRC, that there were diary notes and letters in the locker that might be of assistance to the police inquiry. Constable Morgan conveyed this information to Sergeant Ranse who obtained a further search warrant with a view to seizing them. Upon his arrival at BRC he showed that warrant to Mr Folpp who then arranged for a custodial officer, Mr Teteryzc, to go to the locker and obtain all of the items contained in a bag in the locker. He proceeded to do so. The documents in question were then seized by Sergeant Ranse.

3. Mr Pappas, who appears for the accused, submitted that these documents were obtained as a result of two illegal or improper acts.

4. First, Mr Pappas submitted that Mr Folpp could have become aware of the existence of the letters only as a result of some illegal or improper conduct by him or a member of his staff. The most obvious difficulty with this submission is there is simply no evidence as to how the letters came to be discovered. Mr Folpp claimed to have no recollection as to how he might have become aware of them though Sergeant Ranse gave evidence that he had said something to him about becoming aware of them by virtue of his powers under s 9 of the Remand Centres Act. That section provides, inter alia, that the superintendent has day to day control of the detainees.

5. Mr Pappas pointed out that detainees have certain entitlements under s 20 of the Remand Centres Act and those entitlements extend to sending and receiving mail. He also pointed out that a detainee may be deprived of any such entitlement only if the Superintendent has formed on reasonable grounds a belief of the kind specified in s 21. Regulation 19 of the Remand Centres Regulations provides that incoming letters or parcels may be opened and checked for items that may be prejudicial to the health of the detainees or the security and good order of the remand centre but that neither incoming nor outgoing mail is to be censored. Regulation 7(2) provides that detainees and their quarters may be searched but only when the Superintendent considers it necessary in the interests of security.

6. The letters which the Crown sought to tender had apparently been written by the accused and were addressed to her parents and other people. However, they had not been sent. One was dated 9 January 1998. Mr Pappas conceded that there was no evidence as to the circumstances in which they were discovered but submitted that in the absence of any plausible explanation I should infer that they were discovered by Mr Folpp or one of his staff during a search of the accused's locker which was neither authorised by law nor proper and that they were subsequently read again without due authority or propriety.

7. On the other hand, Mr Golding, who appears for the Crown, submitted that this was mere speculation. The existence of the letters may have become known to Mr Folpp or one of his staff from the "grapevine" which he said tends to pervade custodial and correctional institutions. Any fellow detainee may have seen the accused writing one or more of the letters or she may have mentioned that she was doing so. That information may then have been conveyed from one detainee to another and ultimately to a custodial officer. Furthermore, whilst lockers are apparently allocated to individual detainees they are not issued with keys and have to approach a custodial officer in order to gain access to them. Indeed, after the execution of the second search warrant Mr Teteryzc took it upon himself to go to the locker allocated to the accused and bring back to her photographs about which she had expressed some concern. He gave evidence that he had not previously taken the initiative to get things from her locker in that manner and that whilst it was possible that other officers may have gone to detainees lockers in similar circumstances he was unaware of them having done so. Nonetheless, it was not inconceivable that a custodial officer who opened the locker for her on some occasion may have asked what she wanted and been told that she was writing letters to members of her family. She may have made some comment that was sufficient to suggest that the letters contained some reference to the death of Mr Cinque and/or other matters relevant to the charges in relation to which she had been confined.

8. Mr Golding also maintained that even if there had been a search of her locker such a search was neither illegal nor improper. The accused may have been permitted to store things in the locker but she had no legal rights in relation to it. There was no evidence of any licence involving a right to exclusive occupancy and the withholding of a key suggested that she was not to have any right to exclude custodial officers from it. Accordingly, there was nothing to suggest that the control which the Superintendent exercised by virtue of s 9 of the Remand Centres Act did not extend to the locker in question or its contents. The evidence did not suggest that it formed part of her quarters and the terms of regulation 7(2) would have had no application. Furthermore, there might be many circumstances in which it was highly desirable for custodial officers to carry out regular searches of lockers allocated to particular detainees. In the present case, for example, the accused had been remanded in custody after making statements to a police officer which suggested that she may have intended to commit suicide. A custodial officer would not have been guilty of any impropriety if he or she searched her locker from time to time to ensure that she had not been able to obtain any drug or implement for that purpose. Nor would it have been improper to read any diary notes or other material she had left in the locker with a view to determining whether she had any continuing suicidal ideation.

9. With the consent of the accused I examined the letters with a view to ruling on the objection. Some at least have prominent underlining on the first page and it is not inconceivable that a person's attention may have been drawn to a statement so marked even if he or she had not intended to read or even rummage through them.

10. For present purposes I am prepared to assume that even if the accused had no legal right to privacy in relation to items left in her locker it would have been improper for a custodial officer to have read letters unless there was some compelling reason to do so. Well founded fears of an imminent attempt to commit suicide might provide such a compelling reason but it would not have been proper for a custodial officer to have read mail written by a detainee merely because he or she hoped to find some incriminating statement.

11. In the present case, however, the evidence did not establish that any such impropriety occurred. I was left with a considerable suspicion about the matter but was ultimately unable to draw the inference for which Mr Pappas contended.

12. Furthermore, even if the evidence had revealed some such impropriety that would not have led inexorably to the conclusion that the tender should be rejected. The relevant portions of s 138 of the Evidence Act 1995 are in the following terms:

"(1) Evidence that was obtained

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

13. The enactment of this provision involved a significant departure from the common law principle that evidence which had been improperly or illegally obtained was prima facie admissible. In R v Rooke (unreported, NSW Court of Criminal Appeal, 2 September 1997) Barr J, with whom Newman and Levine JJ agreed, held that except for the difference in onus the test established by s 138 was the same as the common law test as described in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

14. In reliance upon this authority, Mr Golding submitted that s 138 should be construed as relating only to cases in which the relevant impropriety or contravention occurred as a result of the conduct of a police officer or other investigating official. He supported that argument by reference to the factors referred to in subs (3) which the Court of Criminal Appeal had observed were of a kind which a court would have been entitled to consider under Bunning v Cross. I am unable to accept this submission. There is nothing in subs (1) to suggest that scope of the section should be limited in the manner suggested. It may be true that the factors suggested in subs (3) are of a kind which would have been considered under the common law test but in my view that provides no basis for importing such a limitation into the section. There is no reason to suppose that the factors set out in subs (3) would only be of relevance if the impropriety or contravention in question had occurred as a result of the conduct of a police officer or other relevant official. Furthermore, as Mr Pappas pointed out, the operation of s 139, which is of course the next section in the Act, is expressly confined to statements, acts or omissions by `investigating officials'. There is no reason to suppose that the same term would not have been used in s 138 if the legislature had intended that its operation be similarly confined.

15. Furthermore, there is nothing in the section to indicate that it is intended to apply only to criminal cases and the reference in par (c) of subs (3) to "the nature of the relevant offence, cause of action or defence . . ." suggests that it is intended to apply to civil cases.

16. For these reasons, I think it is clear that the test established by s 138 is of far wider application than the common law test. In many cases it will have to be applied in circumstances involving no suggestion of any impropriety by a police officer or other investigating official and the public policy interest in ensuring that such officers observe the requirements of law and propriety will have no relevance. In Rooke the conduct sought to be impugned was that of investigating police officers and their Honours apparently did not find it necessary to consider whether the wider scope of s 138 may have required a test with a wider focus than that discussed in Bunning v Cross. Furthermore, the nature of the test is prescribed by the section itself. The manner in which it must be applied will necessarily depend upon the circumstances. Where those circumstances are of the kind with which the Court of Criminal Appeal was concerned in Rooke then, as their Honours observed, the test may be the same as the common law test. In other circumstances it seems to me that broader public policy issues must also be considered.

17. In the present case it seems clear that if the letters which the Crown now seeks to tender were discovered as a result of some impropriety then such impropriety was committed by a custodial officer rather than a police officer. The custodial officer could have had no relevant investigative function. Nonetheless for the reasons previously given, I was satisfied that the provisions of s 138 would have applied to the tender of evidence improperly obtained by such an officer. Hence if I had found that the evidence had been so obtained I would have approached the matter on the basis that the Crown bore the onus of establishing that the desirability of admitting such evidence outweighed the undesirability of admitting it having regard to the manner in which it had been obtained.

18. However from my reading of the letters I was satisfied that they were of considerable probative value and importance in the trial. The offences charged included one count of murder and one of attempted murder. Mr Folpp plainly thought that the powers conferred upon him by s 9 of the Remand Centres Act entitled him to read and or take possession of the documents and it is by no means clear that he was incorrect in that view. In any event, on the basis of the evidence before me I would have been satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting it having regard to the nature of any impropriety that might reasonably be supposed to have occurred.

19. Secondly, Mr Pappas submitted that the relevant documents had been obtained illegally because Sergeant Ranse had not seized them himself but had permitted Mr Folpp to arrange for Mr Teteryzc to collect them. He relied upon the observations of Higgins J in Wayne Henry Applebee (1995) 79 A Crim R 554 at 559 to the effect that a search warrant confers powers of entry and seizure only upon the person named. Whilst conceding that the terms of s 349G of the Crimes Act 1900 are somewhat different from those of the old s 10 with which his Honour was concerned, Mr Pappas submitted that the principle was of equal application. I was in broad agreement with this submission. A search warrant authorises the warrant holder to enter stipulated premises and seize items falling within the range of those described. Section 349G authorises the warrant holder to obtain such assistance as is necessary and reasonable. It does not authorise the warrant holder to delegate the power of seizure to some other person let alone confer a power of further delegation upon such a person. Accordingly, the search warrant did not authorise Sergeant Ranse to delegate any power to Superintendent Folpp, did not authorise any further delegation to Mr Teteryzc to obtain the documents and did not authorise Mr Teteryzc to obtain the documents.

20. Mr Golding submitted that the powers conferred upon Mr Folpp by s 9 of the Remand Centres Act were sufficiently wide to authorise him to take possession of the letters as he did. In his capacity as Superintendent he was entitled to direct his subordinate Mr Teteryzc to pick up the documents and bring them back to him. The search warrant was significant only because it authorised Sergeant Ranse to seize the documents from him.

21. However, it is apparent that the documents were obtained from the locker not for any purpose relevant to the responsibilities conferred upon Mr Folpp by the Remand Centres Act but rather to assist the police in their investigation. Accordingly, the relevant conduct was not authorised by the provisions of that Act. On the other hand, I accept that Mr Folpp believed that it was so authorised. Consequently, whilst I am satisfied that there was an impropriety it was not one which was either deliberate or reckless. Furthermore, it seems to have been of little consequence since Mr Folpp made it plain that he would have permitted Mr Ranse to walk around to the locker and seize the goods himself if he had asked to do so.

22. Mr Pappas submitted that I should take into account the fact that the warrant was executed at about 4.00 pm whilst the accused was in court and that Sergeant Ranse had not had the courtesy to wait for her to return so that the warrant could be executed in her presence. The interests of fairness required such a course. The search warrant was directed to diary notes and letters written by the accused which might have been expected to have been of a personal nature. If he had waited until she returned the need to seize the items could have been explained and she could have had the opportunity of making any claims of privilege that might have been available to her. In fact, one of the documents seized was a print out of certain relevant sections of the Crimes Act 1900 upon which questions of a legal nature had been written. As Mr Pappas pointed out this document appeared to be one in relation to which legal professional privilege might have been claimed though, in fact, any such claim had been expressly waived during the course of the trial.

23. Whilst I agree that it would have been preferable to wait until the accused had returned to the BRC there was no obligation for Sergeant Ranse to have done so. Police officers cannot always delay the execution of search warrants due to considerations of courtesy and a failure to do so cannot justify a finding that any subsequent seizure of the property has been attended by impropriety or illegality.

24. As previously mentioned, the evidence constituted by these documents appeared to be of considerable probative value and importance at the trial and the charges were very serious. On the other hand, the only impropriety which I found had occurred had been a relatively minor one and, if the documents had not been produced in that manner they almost certainly would have been seized by Sergeant Ranse within the next few minutes. Accordingly, I was satisfied that the desirability of admitting the letters outweighed the undesirability of admitting them having regard to the manner in which it was obtained.

25. Similarly, had I found that the initial discovery of the letters had also been attended by some impropriety then I would have been satisfied that the desirability of admitting them outweighed the undesirability of admitting them notwithstanding the cumulative weight of that impropriety and the subsequent impropriety involved in the production and seizure of the documents.

26. For these reasons I ruled that the evidence be admitted.

I certify that this and the twenty-six (26) preceding numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 12 April 1999

Counsel for the DPP: Mr T Golding

Solicitors for Accused: Director of Public Prosecutions

Counsel for the Defendant: Mr J Pappas

Solicitors for the Defendant: Sutherland & Tiirikainen

Dates of hearing: 30 March 1999

Date of judgment: 12 April 1999