New South Wales Court of Appeal CITATION: Karout v Stratton & Ors [2008] NSWCA 237 HEARING DATE(S): 17 September 2008 JUDGMENT OF: Beazley JA at 1; McColl JA at 1 EX TEMPORE JUDGMENT DATE: 17 September 2008 DECISION: The summons for leave to appeal is dismissed with costs. CATCHWORDS: Leave to appeal - irregular execution of warrants - failure to announce police presence and intention to execute warrant - incomplete Notice to Occupiers - s138 Evidence Act - admission of illegally obtained evidence within discretion of Magistrate Kaldon Karout (Applicant) PARTIES: Constable Matthew Stratton (First Respondent) James Wiseman (Second Respondent) Rory Evans (Third Respondent) FILE NUMBER(S): CA 40685/07 COUNSEL: G Bellew SC (Applicant) D Skinner (First Respondent) SOLICITORS: V A Lawyers (Applicant) Crown Solicitor (First Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 2006/13347 LOWER COURT JUDICIAL OFFICER: Fullerton J LOWER COURT DATE OF DECISION: 13 September 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Kaldon Karout v Constable Mathew Stratton & Ors [2007] NSWSC 1034 - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40685/07 BEAZLEY JA McCOLL JA Ex tempore 17 September 2008 Kaldon Karout v Matthew Stratton & Ors Judgment 1 THE COURT: The Court proposes to refuse leave in this matter. 2 The summons for leave to appeal raises issues in respect of two separate warrants, which will be refered to as the first and the second warrant. The first warrant was found by her Honour Justice Fullerton to have been executed in an irregular manner, but the irregularity was of a technical nature and involved a failure by the police officers, by some seconds, to announce at the door of the premises that they were police and that they were intending to execute the warrant. It was likely that any evidence obtained following the irregularly executed warrant would be subject to challenge, as being illegally obtained evidence. 3 However, there is a discretion under s 138 of the Evidence Act 1995 to admit illegal evidence, and given the highly technical nature of the breach by the police officers, the question of the admission of that evidence can be properly considered by the Magistrate, and we would not consider that it would be appropriate to grant leave to appeal from her Honour's determination in that regard. 4 The second warrant raises different considerations. In that case, the police officers failed to give a complete Notice to Occupiers. A second page of that Notice was missing. The consequence of the second page being missing was that the document given to the applicant did not contain all the information that must be obtained in an Notice to Occupiers pursuant to s 67 of the Law Enforcement (Powers and Responsibilities) Act 2002. 5 It is not apparent, however, whether some irregularity in the service of a Notice to Occupiers makes the execution of the warrant invalid, or otherwise makes evidence obtained pursuant to the execution of the warrant illegal, but, even assuming that it did, an application could also be made under s 138 of the Evidence Act for the admission of the evidence. Factors that might be relevant in the exercise of that discretion would include whether or not the applicant was prejudiced in any real way by the fact that there was a page missing from the document. We consider that to be a matter for the Magistrate. 6 We do not consider that this is an appropriate matter in which to grant leave to appeal. Accordingly, the summons for leave to appeal is dismissed with costs. ********** 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.