R v SIBRAA [2012] NSWCCA 19

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v SIBRAA [2012] NSWCCA 19 Hearing dates: Wednesday 1 February 2012 Decision date: 27 February 2012 Before: Whealy JA at [1] RS Hulme J at [7] Hidden J at [30] Decision: (1) Allow the appeal. (2) Vacate the decision of Bennett DCJ to exclude evidence obtained by the Australian Federal Police during the execution of a s.3E Crimes Act 1914 search warrant at the residence of Nicholas Enrique Sibraa. (3) Remit the proceedings to Bennett DCJ to be continued in accordance with this decision. Catchwords: Evidence - invalid search warrant Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Evidence Act 1995 - s.138 Cases Cited: Bunning v Cross (1978) 141 CLR 54 DPP v Nicholls [2001] 123 A Crim R 66 Oliver [2002] EWCA Crim 2766 Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 R v Burns (No 3) [1999] SASC 532 Category: Principal judgment Parties: Regina Nicholas Enrique SIBRAA Representation: C: P Hastings QC R: G Turnbull SC/P J Gow C: Commonwealth Director of Public Prosecutions R: Ian Rolfe File Number(s): 2010/87433 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-04-21 00:00:00 Before: Bennett DCJ File Number(s): 2010/87433

Judgment 1WHEALY JA: In this matter I have had the opportunity of reading in draft the judgment and reasons of RS Hulme J. I am in general agreement with his Honour's primary findings but wish to add a few brief remarks of my own. 2First, I agree with RS Hulme J that, although the impropriety involved the execution of a defective search warrant, the defect essentially occurred as a result of an oversight on the part of the issuing magistrate. Provision had been made in the document submitted to the magistrate for the insertion of the date on which the warrant would issue and for his signature. The magistrate attended to the latter task but, inadvertently, omitted the former. The identification of the nature of this defect was an important consideration in the balancing exercise required under s 138 of the Evidence Act 1995 (NSW) 1995. 3Secondly, I agree with RS Hulme J that the finding of recklessness on the part of the police could not be made on the facts before the learned trial judge. Those facts, without more, could not sustain the proposition that it was necessarily unreasonable for the Federal officer who received the document from the Magistrate (and the other Federal agents) to have expected that the Magistrate would have dated the document at the time of appending his signature. It was not necessarily unreasonable for those agents to have failed to scrutinise the document to check if there were any defect or omission such as that which was later discovered. 4Of course, it is plainly desirable that warrants be checked carefully by those responsible for their issue and enforcement but, as I have said, on the facts here a finding of recklessness could not be sustained. 5The final point I wish to make relates to RS Hulme J's positive finding that the only proper conclusion to be drawn from all the circumstances was that the desirability of admitting the evidence outweighed the undesirability of so doing. While I appreciate the force of his Honour's views, I would, for myself, prefer not to state any conclusion as to whether the evidence should have been, or should be, admitted. That question was not, strictly speaking, debated before us and, in those circumstances, it will be an appropriate matter for the trial judge to determine when the matter comes before him following this remittal. 6I agree with the orders proposed by RS Hulme J. 7RS HULME J: The Crown appeals pursuant to s.5F of the Criminal Appeal Act 1912 against a decision of Bennett DCJ rejecting the admissibility of evidence obtained during the execution of a search warrant. The foundation for the rejection of the evidence was that the warrant was undated, concluding in the following terms:- THIS WARRANT MAY BE EXECUTED AT ANY TIME THE TIME AT WHICH THIS WARRANT EXPIRES IS MIDNIGHT AT THE END OF THE SEVENTH DAY AFTER THE DAY ON WHICH THE WARRANT IS ISSUED GIVEN under my hand at Sydney in the State of New South Wales this day of December 2009. ....................................... A Magistrate in and for the State of New South Wales 8The Magistrate's signature and seal appeared in the penultimate line. No date was specified in the blank space left for it. 9Section 3E(5)(e) of the Crimes Act 1914 (Cth) requires the issuing officer to state in a warrant the time at which it expires and the Crown concedes that the warrant was therefore invalid and provided no entitlement in the police who executed it to do so or to seize the material which was the subject of Bennett DCJ's decision. 10Following the execution of the warrant the respondent to this appeal was charged with two offences, one of using a carriage service to make available child abuse material and one of possession of child pornography. The material the subject of the present appeal consisted of photocopies of photographs exposed during the search and of items seized, a copy of the seizure record, a photocopy of the image and other information posted on a social website upon which one of the offences was based. Also available were the child pornography images but the parties agreed that their descriptions were accurately expressed in a statement of facts and that his Honour did not need to view that material. 11So far as is presently relevant, s.138 of the Evidence Act 1995 provides:- (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) he difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 12Addressing the topics to which s.38(3) is directed, Bennett DCJ found that the probative value of the evidence was high and that it was important. It was not suggested that it did not include child pornography or child abuse material, that it was not in the respondent's possession or that he did not post the child abuse material to an internet forum. Indeed, it is common ground that without the evidence the Crown case must fail. 13His Honour characterised the possession of child pornography and publication of child abuse material as serious criminal conduct and observed that the pornography here extended across each of the five recognised categories - see Oliver [2002] EWCA Crim 2766. His Honour went on to describe as reasonable and appropriate a concession by the Crown that the respondent's offending however fell towards the lower end of the range of seriousness in each case. 14Turning to paragraphs (f) and (g) of s.138(3), his Honour drew attention to the fact that Article 17 of the International Covenant on Civil and Political Rights provides for the right to be free from arbitrary or unlawful interference with privacy, family, home or correspondence and the right to be protected by the law from such interference or attacks and that there was no suggestion that the Federal agents involved will be otherwise sanctioned because of their conduct. 15The principal factors that led to the rejection of the evidence arose in the context of s.138(3) paragraphs (d) and (e). In that connection his Honour:- (i) observed that the Australian Federal Police had prepared the warrant document, no doubt expecting that the Magistrate who signed the document would date it and that the first omission was the failure of that Magistrate to insert the date; (ii) inferred that the Federal Police Officer who received the signed document simply assumed that it was complete and valid; (iii) concluded that the other agents who took part in the search did not satisfy themselves that they had a valid warrant; (iv) said that he was not satisfied that before conducting their search the Federal agents took the time to ensure that the respondent and his parents who occupied the premises understood the entire contents of the search warrant and the powers it purported to give; (v) said that he was not persuaded that there was sufficient opportunity for the respondent and his parents to realise the deficiency in the warrant and deny the police access to their home if they wished to do so; (vi) said that otherwise it could not be said the Federal agents acted improperly or without appropriate respect to the occupiers including the respondent. 16His Honour also remarked:- The duty of the Court is to protect the citizens of the democracy from unlawful intrusions and to supervise the purported exercise of powers of entry; (An officer issuing a warrant) should ... ensure that the warrant complies with the legislation pursuant to which it is issued. The police should then exercise their powers making sure that they understand the limits imposed by the terms of the warrant itself. To have this understanding they must know what the warrant contains. Each of the police officers engaged upon the purported exercise of the powers and the execution of the search warrant have an obligation to satisfy themselves of the powers they are purporting to exercise including the validity of the warrant pursuant to which they are purporting to act. .... ... the unlawful search of these premises without a valid warrant when no step was taken by any of the Federal agents to ensure the validity of the document issued and the powers it purported to give them is aptly described as an impropriety and is a serious contravention of their obligations in the exercise of the powers of entry with which they were entrusted. .... I am satisfied that in the circumstances where the Federal agent who sought the warrant, placed before the issuing Magistrate the document without the date included, the failure to ensure that it was validly issued with a date of issue inserted into the space provided and left blank for that purpose, and the failure thereafter by the other agents to ensure that the warrant under which they were intruding into this home was a valid warrant, was reckless within the meaning of that term as it is used in s 138(3)(b) of the Evidence Act . I would expect that the law enforcement official purporting to exercise such powers would, at the very least, ascertain that they had the authority to do so by examining the warrant issued for that purpose to satisfy themselves that the document was valid, at least to the extent that it included all of the information required of it. The failure to do so must always involved the risk that the document might be deficient. An examination of the last page of the warrant would have revealed the obvious fact that the warrant was deficient. I could not come to the view that the evidence established a 'don't' care attitude' in the group of agents or any one of them in particular, but for them to proceed as they did without ensuring that they had a warrant to do so assuming, without examining the document, that it was valid was, in my judgment, reckless. 17Turning to s.138(3)(h), his Honour observed that the Federal agents could easily have sought another warrant upon discovering the omission in the one under which they purported to act. 18Section 138 requires that there be identification of the impropriety or contravention of an Australian law that was involved in the obtaining of any evidence the admissibility of which falls for consideration under the section. Whether in this case the offending conduct be characterised as an impropriety or contravention of an Australian law, it essentially consisted of trespassing upon the land and house occupied by the Respondent or his parents, asserting an entitlement to do so, and to seize and carry away documents and other items, in fact doing so, and demanding that the Respondent and his parents not interfere. The conduct may fairly be said to be a serious intrusion upon the rights of the occupiers. 19However, it does not seem to me that that the gravity of that impropriety was, as his Honour's references to the topic seem to indicate he thought, worsened by the failure of the Federal agents involved to appreciate the contents of the warrant or ensure that the warrant was valid. Those failures were no doubt factors that led to the impropriety constituted by the agents acting without lawful authority but it was the purported execution of the warrant when it was invalid that constituted the impropriety, not the failure of the officers to check first - c.f. Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [87], [136]. Had that purported execution not occurred, the officers' dealings with the warrant would have constituted no impropriety. 20That is not to suggest that the failure to check the warrant was entirely irrelevant: The factors listed in paragraphs (a) - (h) are not exhaustive. But also not insignificant is the fact that the origin of the impropriety was merely the accidental omission of a date and this by the issuing magistrate and that the intrusion was of a nature that, but for the defect in the warrant, would have been legal and not an impropriety and, had the defect been noticed, the intrusion could and in all probability would, have been authorised. 21Prior to arriving at his conclusion that the Federal agents were reckless, his Honour referred to 3 cases where the meaning of "reckless" in s 138(3)(e) has been considered. In this connection his Honour said:- ... Adams J is attributed with a view in DPP v Nicholls [2001] 123 A Crim R 66 at para 23 that the term requires a serious disregard of the relevant procedures amounting to a deliberate undertaking of a risk that the rights of the suspect will be substantially prejudiced. The approach taken by James J in DPP v Leonard [2001] 53 NSWLR 227 at [103] was that a finding of reckless would require a finding that the police 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. Hulme J in R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257 at [33] wrote (my emphasis) It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term 'reckless' in par (e) of s 138(3). In the context of 'improperly or in contravention of an Australian law', the concept 'reckless' must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a 'don't care' attitude generally ... (Emphasis added by Bennett DCJ) 22In that last mentioned case, Ipp AJA and Sperling J concurred in the remarks quoted. 23Bennett DCJ did not advert to the fact that the approach of James J as recorded by his Honour was less demanding than that in the other 2 cases where it was made clear that reckless involved the deliberate undertaking of a risk. Nor did his Honour advert to the fact that in an earlier portion of [103] James J had himself pointed out that the test proposed by Adams J in DPP v Nicholls [2001] 123 A Crim R 66 involved the conscious taking of a risk. 24Furthermore, as the passages from Bennett DCJ's remarks quoted above make clear, neither did his Honour direct his attention to the requirement that there be recognition of a risk when he considered whether the conduct of the Federal Agents answered the description of reckless. Rather did his Honour simply take the view that their conduct in not checking the warrant and proceeding to execute it in that circumstance necessarily involved a risk and was therefore reckless. 25His Honour was in error in doing so and while of course magistrates and other judicial officers, being human, are liable to make mistakes as others do, it is not possible to conclude that the Federal agents' failure to check the warrant and proceeding to execute it without checking necessarily involved the deliberate undertaking of a risk. It is not necessarily unreasonable for a police officer to expect, without even thinking about the matter, that a magistrate issuing a warrant would have carried out the simple task of signing, sealing and dating it without supervision. 26Nor is it necessarily unreasonable for individual police officers engaged in executing a warrant to not themselves feel obliged to check that all "i"s have been dotted and "t"s crossed, as some of his Honour's remarks suggest. While such officers may well suffer consequences if a belief they have or assumption they have made that a valid warrant has been issued turns out to be wrong, it is utterly unrealistic to expect them themselves to check what others, presumably competent and possibly their superiors, have done, or to regard such officers as having consciously taken a risk if they do not. 27Bennett DCJ's decision to reject the evidence found on the execution of the warrant thus miscarried. But I would go further. On the basis of the material before his Honour, his findings concerning paragraphs (a) - (c) and (f) to (h), and the above conclusions concerning paragraphs (d) and (e), the only proper conclusion was that the desirability of admitting the evidence outweighed the undesirability of doing so. Although made in the context of the common law rather than s 138, the remarks of Stephen and Aickin JJ. In Bunning v Cross (1978) 141 CLR 54 at 78, are apposite:- Moreover, the Courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand, it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. 28The decision of Olsson J in R v Burns (No 3) [1999] SASC 532 is persuasive authority to similar effect. 29Accordingly, the appropriate orders are:- (1) Allow the appeal. (2) Vacate the decision of Bennett DCJ to exclude evidence obtained by the Australian Federal Police during the execution of a s.3E Crimes Act 1914 search warrant at the residence of Nicholas Enrique Sibraa. (3) Remit the proceedings to Bennett DCJ to be continued in accordance with this decision. 30HIDDEN J: I agree with the orders proposed by RS Hulme J and, generally, with his Honour's reasons. However, like Whealy JA, I would refrain from expressing any conclusion about whether the evidence should be admitted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2012