District Court New South Wales Medium Neutral Citation: R v Cochran & Reihana [No. 1] [2017] NSWDC 368 Hearing dates: 27 November 2017 Date of orders: 27 November 2017 Decision date: 27 November 2017 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Evidence admissible applying in s.138 Evidence Act 1995 Catchwords: Search warrants, invalid warrant, wrong address on warrant, an error of form or substance, consequence of illegibility, operation of s.138 Evidence Act 1995 Legislation Cited: Crimes Act 1900 Evidence Act 1995 Law Enforcement (Powers and responsibilities) Act 2002- Part 5 Search Warrants Act 1985 Cases Cited: Bunning v Cross (1978) 141 CLR 54 Carrol v Mijovitch (1991) A Crim R 243 Carter v The Queen (1995) 183 CLR 121 George v Rocket (1990) 170 CLR 104 IMM v The Queen (2016) 257 CLR 300 Mann v Carnell (1999) 201 CLR 1 Pearse v Pearse (1846) 63 ER 950 The Queen v Ireland (1970) 126 CLR 321 The Queen v Swaffield (1998) 192 CLR 159 Texts Cited: From [28] TF Bathurst and Sarah Schwartz, Illegally or improperly obtained evidence: in defence of Australia's discretionary approach, (2016) 13 TJR 79 Category: Procedural and other rulings Parties: Ricky Cochran (Defendant) Mark Reihana (Defendant) Director of Public Prosecutions Representation: Counsel: Ms K Stares (for the Defendant Ricky Cochran) Mr J Clarke (for the Defendant Mark Reihana) Mr T Pickering (for the Director of Public Prosecutions) Solicitors: Ms S Aldis (for the Defendant Ricky Cochran) Mr M Ward (for the Defendant Mark Reihana) Mr B Allison & Ms L Cocca (for the Director of Public Prosecutions) File Number(s): 2016/60987-001 & 003 (for Cochran);2016/33174-008 & 009 (for Reihana); Publication restriction: Suppression order and pseudonym order – name of Complainant & crown witness Judgment Pseudonym Order 1. Pseudonyms have been used for names of the complainant and another witness, who himself prima facie, was the victim of a sexual assault. Pursuant to s578A Crimes Act 1900 there is to be no publication of a victim's name or anything that may lead to identification of the complainant. Identifying information has been removed from this version of the judgment to comply with this order. Introduction 1. On 27 November 2017 a jury was empanelled Ricky Cochran and Mark Reihana are presently on trial. Each accused was indicted on two identical charges: Count 1 - Aggravated sexual assault: s61JA Crimes Act 1900, and Count 2 Aggravated detain for advantage: s86 (2)(a) Crimes Act 1900. 1. The jury were sent away until 28 November 2016 while I dealt with preliminary legal issues. One issue was the admissibility of evidence relating to or deriving from items seized from a flat where both accused resided. After hearing from the parties I determined that the warrant was invalid but after considering s 138 Evidence Act 1995 I allowed the proposed evidence to be admitted at trial. I now publish my reasons for that decision. 2. The allegations against each accused are set out in a Crown Case Statement: Voir dire Exhibit 1. In brief summary; it is alleged that on 31 January 2016 both men forced Mark Simpson to come to Cochran's flat at 7/4 Stewart St. Wollongong. There Mark Simpson was tied up, beaten, threated with a meat cleaver, burnt with a blow torch. In order to secure his release Mark Simpson promised Cochran and Reihana $2,000. In order to secure compliance with the forced promise Mark Simpson was taken to a bathroom and there forced to suck the penis of another man, Bill Thomas. 3. Simpson did not complain to police about these matters until 17 February 2016. On 1 February 2016 Reihana for other unrelated matters was arrested at the Stewart St. flat. Arresting police saw items in the flat that excited their interest. They applied for a search warrant but all the documents produced by police to the authorised officer caused the warrant then issued to refer to the wrong flat - 7/3 Stuart Street. The warrant was executed at 7/4 Stewart St. Later that evening. 4. Cochran had been present when Reihana was arrested. Although he waited outside 7/4 Stewart St. for a period, he left before the warrant was executed. 5. The search was recorded. A number of items of interest to police can be seen on that recording; some were seized. Some were associated with criminal activity other than the present matter. Items seized or photographed relevant to the present matter included; a meat cleaver; a pellet gun; a sword; cable ties; a blow torch; mobile phones including, a mobile phone that contained a recording of Mark Simpson bound with cable ties and a dog chain and drinking from a dog bowl; and the dog bowl depicted in that recording. 6. The items seized relating to the present matter are of considerable importance and significance to the prosecution. They corroborate evidence given by a number of witnesses. The recording on the phone depicts the complainant as he described himself when making his statement to police on 17 February 2016. Of particular importance is the fact that the items were seized before a complaint had been made in relation to the present matter. 7. The warrant relied on by police is Voir Dire exhibit 3. Its particulars are written or typed on the standard Form 9. It notes it was applied for by Detective Senior Constable Barnett. It notes the property to be searched is a "one bedroom self-contained brick unit on the second level in a complex of 8." The items of interest to be searched for and the nature of the offences for which Reihana was arrested are recorded. It is endorsed by a special justice. It has however one fundamental flaw -the property the subject of the warrant is 7/3 Stewart St Wollongong. 8. During the voir dire I was shown the part of search recording at the point the premises were entered in purported exercise of the warrant. It shows Detective Murdoch standing outside 7/4 Stewart Street. He reads from the standard script and states that he is outside and about to enter 7/3 Stewart Street! No evidence was called from the Detective Murdoch. There is no direct explanation why he or Detective Barnett made such a fundamental error. 9. A possible explanation for the initial confusion appears from police radio logs relating to the arrest of Reihana earlier that day.: VD Exhibit 5. About 15:42 on 1 February 2016 police were assigned to an incident noted as 7/3 Stewart St. The incident Header at the start of the document has the address 7/3 STEWART ST WOLLONGONG (in capitals). At 15:42:42 there is a note "address changed from 7/4 STEWART ST WOLLONGONG to LOT 7/4 STEWART ST WOLLONGONG." 10. At 15:45 the log records "have one in custody." A15:58:23 "police [radio] message LOC is 7 of 3 STEWART. At 15:58:37 is ""address changed from 7/4 STEWART ST WOLLONGONG to LOT 7/3 STEWART ST WOLLONGONG." 1. It is accepted that Reihana was arrested at 7/4 Stewart St and that police on the scene wanted a search warrant for 7/4 Stewart St. It is accepted that that they had proper reasons to make that request. Mr Cochran was at 7/4 Stewart Street but left while the police were organising the search warrant. Police on receipt of the warrant for 7/3 then executed it at 7/4. The execution of the warrant was recorded and appears to have complied with all the required safeguards, except for the obvious error; an error that was inexplicably was not obvious to the police at the scene. 4 Stewart St is a block of 8 units adjacent to the local sport stadium. 3 Stewart St is on the opposite side of the road. Submissions 1. Mr Clarke, for Reihana, and Ms Stares for Cochran made similar points to the same end - the warrant was invalid. It did not authorise the search of 4/7 Stewart Street. Accordingly, the search was illegal and the prosecution could not tender the products of that illegal search unless they satisfied the onus placed on them by s 138 Evidence Act 1995. That onus could not be met because of the heavy emphasis courts place on the need to ensure that the protections inherent in the search warrant regime be adhered to. 2. Mr Pickering, who appears for the prosecution, first submitted that the error was a technical one that did not invalidate the warrant. The error he said was merely a typographical oversight. The premises the police wanted to search were properly identified to Mr Cochran, the occupant of 7/4 Stewart St. who had been present when the premises were secured pending the obtaining of a search warrant. Mr Reihana had been arrested at those premises. The correct premises were searched, even if the warrant did not reflect this. In any event he submitted the s 138 onus had been satisfied. 3. With the exception of s 138 Evidence Act 1995 no party cited any other legislation or authorities. Applicable Legislation and legal principles 1. Law Enforcement (Powers and responsibilities) Act 2002- Part 5.. * 47 Power to apply for search warrants (1) A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant. * 48 Issue of search warrants (1) An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant. * 49 Seizure of things pursuant to search warrant (1) A person executing a search warrant issued under this Division: (a) may seize and detain a thing (or thing of a kind) mentioned in the warrant, and (b) may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence. * 62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information:... (c) the address or other description of the subject premises, * 66 Form of warrant (1) A warrant is to be in the form prescribed by the regulations. * 76 Defects in warrants A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular. * 138 Exclusion of improperly or illegally obtained evidence (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. (2) … (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. Consideration - unlawful warrant 1. In a joint judgment the High Court in George v Rocket (1990) 170 CLR 104 at 110-111, made three important points: 1. A court when construing statutes governing search warrants start from a premise the common law has always valued highly and went to great lengths to protect the invasion of interests such as a person's property. 2. The conditions which must be fulfilled before a search warrant can be lawfully issued and executed reflect the legislature's concern to give a measure of protection to these interests. 3. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. 1. Strict compliance with search warrant legislation is thus required. 2. Part 5, Law Enforcement (Powers and Responsibilities) Act 2002 requires that the application be in respect of "certain premises;"s47. Those premises and "things connected with a searchable offence" are the subject of the warrant. 3. The eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information the address or other description of the subject premises: s62(c). 4. The warrant issued here did not set out the address of the premises. The 'other description' was "one bedroom self-contained brick unit on the second level in a complex of 8." 5. Mr Pickering submitted that the error was a mistake of form and not substance. If that is so then the warrant was not invalid. Only if "the defect… affects the substance of the warrant in a material particular" would it be invalidated." s76. 6. In Carrol v Mijovitch (1991) A Crim R 243 at 255, Kirby P (as he then was) noted of s 76's predecessor in the Search Warrants Act 1985 (now repealed) that the section must be read against the background of the strictness with which the law enforces the salutary protections for liberty enacted to protect from otherwise unlawful searches and seizures. 7. The warrant issued here did not set out the address of the premises to be searched. The "other description" while relevant, was insufficient to allow for specific identification of the premises so as to overcome the deficiency with the address. 8. A condition precedent for the issue of a valid search warrant - the address of the premises - was missing. This is not mistake on the Form nor was it simply a mistake of form, it was an error that went to substance of the warrant. Although from the perspective of police the correct premises were searched. The question of validity must be viewed objectively. The authorised officer was misled and issued a warrant for the other premises not those entered. The occupier was not present when the warrant was executed. No one was available to correct the error. Police on scene did not correct the error. It was incumbent on police at the scene to ensure that the warrant and the property to be searched matched. 9. The search warrant was not a valid warrant. The search and subsequent seizures from 7/4 Stewart St were unlawful. Consideration - admissibility of products of search 1. There is a public interest in admitting all relevant, reliable and probative evidence: The Queen v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54 at 74. On the other hand the High Court has often quoted the 1846 statement by Knight Bruce V-C that while: "Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much:" See Pearse v Pearse (1846) 63 ER 950 at 957, cited in Bunning v Cross (1978) 141 CLR 54 at 72; Mann v Carnell (1999) 201 CLR 1 at [111]; Carter v The Queen (1995) 183 CLR 121 at 133. See also TF Bathurst and Ms Sarah Schwartz, Illegally or improperly obtained evidence: in defence of Australia's discretionary approach, (2016) 13 TJR 79. 2. The High Court in The Queen v Swaffield (1998) 192 CLR 159 recognised that "there is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society." At 185 per Brennan CJ. 3. In his (2016) 13 TJR article, Chief Justice Bathurst makes the point that judicial integrity and the moral integrity of the criminal justice system must be preserved. Accordingly and judges should not be complicit in condoning or allowing illegality. That article and those sentiments inform this judgment. 4. It is against that background that s 138 requires examination in its terms. 5. Once it is established that evidence has been improperly or illegally obtained, the onus is on the prosecution to satisfy the court that it should be admitted. The shifting of the onus means that it is necessary for such conduct to be justified and explained and for the court to be persuaded that such evidence be admitted despite the impropriety through which it was obtained. A judge must, before exercising their discretion, scrutinise the relevant misconduct carefully and to consider all of the competing policy concerns before admitting such evidence. Each of the factors in s 138(3) reflects a different aspect of the public most of which had been previously identified at common law. Review of policy concerns 1. Section 138 sets out precisely what factors must be considered by a court in exercising its discretion to admit the improperly obtained evidence. Any assessment made at the outset of a trial must be predictive an on the assumption the jury will accept the evidence: IMM v The Queen (2016) 257 CLR 300. 1. The probative value of the evidence: The evidence gathered after the premises were searched adds substantially to the prosecution case. The recording on the phone depicts Mark Simpson bound and subject to indignities consistent with his account. Other items seized corroborate Simpson's account and those of other witnesses. 2. The importance of the evidence in the proceeding: The importance of the evidence means that the consequences flowing from its exclusion are considerable. 3. The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding: These are criminal proceedings. They carry serious consequences on conviction. Section 61JA offence carries a maximum penalty of life imprisonment, section 86(2)(a) - carries a maximum penalty of 20 years. The defence is that neither offence occurred or if it did neither accused was present or responsible. 4. The gravity of the impropriety or contravention: The police failed to properly respect the important provisions designed to protect citizens from arbitrary search and seizure. The greater the police departure from rules of conduct and procedure, the greater the need is for a court to uphold the rule of law, in order to discipline and deter misconduct. That said, here the misconduct was at worst the result of inadvertence. 5. Whether the impropriety or contravention was deliberate or reckless: The impropriety was neither deliberate nor reckless but resulted for a failure to properly check the address of the premises that police were attending and where they had observed matters that elicited their interest. Rather, than summarily enter and seize those items police sought a warrant before entering the premises. The premises that they in fact wanted the warrant for were those entered. The occupiers were either under arrest or had left the scene and were not actually inconvenienced. 6. 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: No civil rights of any significance were infringed. 7. 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: No action has been taken. If it had at best a reprimand would have been expected. The Courts intervention is not required as the misconduct was unintentional and inadvertent. There is no need for the court to distance itself from the misconduct. 8. The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: There would have been no difficulty in obtaining the evidence if the police and bothered to look at and make a proper note of the number at the front of the premises. Conclusion 1. An objective consideration and balancing of these factors could led to only one conclusion - the desirability of admitting the evidence outweighs the undesirability of admitting it despite the that the way in which the evidence was obtained. The prosecution have met there onus. The evidence of the search and subsequent seizures can be admitted subject to any other objection or consideration. ********** 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: 19 December 2017