NSW Police v Manwarring [2022] NSWLC 24

Local Court New South Wales

Medium Neutral Citation: NSW Police v Manwarring [2022] NSWLC 24 Hearing dates: 18 November 2021 19 November 2021 25 February 2022 Date of orders: 26 April 2022 Decision date: 26 April 2022 Jurisdiction: Criminal Before: Magistrate M O'Brien Decision: Evidence obtained during execution of search warrant excluded Catchwords: Cultivate cannabis – search warrant – evidence obtained as a consequence of impropriety or contravention of Australian Law - exclusion of evidence Legislation Cited: Drugs Misuse and Trafficking Act 1985 Crimes Act 1900 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 International Covenant on Civil and Political Rights Cases Cited: George v Rockett (1990) 170 CLR 104 R v Ho (1989) 39 A Crim R 145 Cornwell v The Queen [2010] NSWCCA 59 Director of Public Prosecutions (Vic) v Natale [2018] VSC 339 Category: Principal judgment Parties: NSW Police (Prosecution) Phillip Manwarring (Defendant) Representation: Sergeant Comer (for the Prosecution) Mr John Stratton SC with Kathleen Heath instructed by Armstrong Felton Solicitors (for the Defendant) File Number(s): 2020/00101575 Publication restriction: Nil

Judgment 1. On 1 April 2020 two unmarked police vehicles made their way to a rural property situated on Moss Vale Road at Beaumont, nestled in the Kangaroo Valley being part of Cambewarra Range. Upon arrival, Police met the accused, Phillip Manwarring, who was not expecting their visit, telling him they were making inquiries about an illegal building structure erected on the property and the manufacture of illicit drugs taking place there based on information they had received. The accused inquired if police had a warrant. No, he was told. He asked them to leave. They did. 2. Later that day a search warrant was issued from the Registrar of Nowra Local Court at the request of one of the police officers present at the accused property earlier that day, Senior Constable Corbridge, to search the accused's property, seeking documents which it was claimed would support evidence of fraud. 3. PolAir flew a fixed wing aircraft over his property, twice, once, on 11 February 2020 at the request of Sergeant Watson, and another during the night of 1 April 2020 at the request of Corbridge. Police returned the next day, 2 April 2020, armed with a search warrant, issued by the Registrar of Nowra Local Court, to search for documents connected with unapproved building work as evidence of a fraud. Some landscape drawings were found and seized. During a walk-through of the dwelling, police found a dried cannabis leaf in a room underneath the house adjacent to a rumpus room. 4. The accused consented to a further search on the basis that if he withheld his consent, a crime scene warrant would be obtained in a matter of hours. More police were summoned. Pots of cannabis were found in more remote locations within the curtilage of the property and beyond. 5. The accused, has since been charged with cultivate cannabis contrary to the provisions of section 23(1)(A) of the Drugs Misuse and Trafficking Act 1985 (DMTA). 6. The offending conduct is alleged to have occurred on 2nd April 2020. 7. The accused entered a plea of not guilty and has defended the charge. 8. The accused maintains that the evidence upon which the prosecution rely to prove the charge was obtained in contravention of an Australian Law, or in consequence of an impropriety, namely, by means of a search warrant granted to the police in circumstances where the police had misled the court about the nature of the offence they were investigating. He seeks a determination by this court that all evidence obtained during the execution of the search warrant be excluded for the purposes of the charge pursuant to section 138(1) of the Evidence Act 1995. 9. The hearing proceeded over a period of three days and proceeded on a voir dire in order to determine if the evidence sought to be adduced by the prosecution and obtained as a consequence of the execution of the search warrant should be admitted into evidence in support of the charge. The court heard from five witnesses and received seven exhibits into evidence. 10. At the conclusion of the voir dire, I reserved my decision. 11. I have had the benefit of very detailed and comprehensive written submissions prepared by Mr Stratton SC of counsel with assistance from Ms Heath, his junior, for the accused, together with more concise and succinct written submissions from the prosecution for which I wish to express my gratitude, both of which have both been of enormous assistance to me in grappling with the issues raised in this matter. 12. In the interests of time and for ease of reference, persons referred to in this judgement will, after having been initially identified, thereafter be referred to using their first name, their surname or their role in these proceedings as the case may be.