The Queen v Craig Cant

• Jurisdiction: Northern Territory
• Judge: Thomas J
• Judgment Date: 25 May 2001
• Neutral Citation: [2001] NTSC 38
• Docket Number: FILE NO: 9900592
• Court: Supreme Court
• Date: 25 May 2001

[2001] NTSC 38

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Thomas J

FILE NO: 9900592

Between:

The Queen

and

Craig Cant

REPRESENTATION:

Counsel:

Appellant: D Dalrymple

Respondent: J Lawrence & M Hassall

Tran Nominees Pty Ltd v Scheffler (1986) 20 A Crim R 287; George v Rockett (1990) 170 CLR 104; Carbone v National Crime Authority (1994) 52 FCR 516; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; A'Beckett v Commissioner of Taxation (1959) 104 CLR 508; Wrotesley v Adams (1558) 1 Plowd 187 [ 75 ER 287]; R v Adams[1980] 1 All ER 473; Larsson v Commissioner of Police (NSW) (1988) 40 A Crim R 301, referred to

Police Administration Act 1978 (NT), s 117, s 118, s 120, s 120B(1)(b), s 120B(1)(c)(ii), s 120B(1)(d)(i), (ii) and (iii), s 120B(5), s 120B(6) and s 120B(7), s 120BA(7)(a), s 120BA(7)(d) and s 120C(c)

CRIMINAL LAW — EVIDENCE

Application under section 26L of the Evidence Act 1939 (NT) — admissibility of evidence at trial — search warrant — admissibility of items seized during searches

ORDER:

reason for ruling.

REASONS FOR RULING

(Delivered 25 May 2001)

1 This matter is a hearing pursuant to s 26L of the Evidence Act 1939 (NT). Mr Cant has entered a plea of not guilty to a charge that:

‘Between about 25 November 1998 and about 29 December 1998 at Darwin in the Northern Territory of Australia was knowingly concerned in the importation into Australia of a prohibited import to which section 233B of the Customs Act 1901 applies, namely, narcotic goods consisting of a quantity of 3, 4 methylenedioxymeth-amphetamine (“MDMA”), being not less than the commercial quantity of MDMA.

Contrary to paragraph 233B(1)(d) of the Customs Act 1901’

2 On 6 January 1999, officers of the Northern Territory Police Force attended at 21 Cocos Grove Durack and seized certain items.

3 On 7 January 1999, a number of police officers returned to the premises at 21 Cocos Grove Durack and seized further items.

4 The defence challenge the admissibility of the items seized during searches at 21 Cocos Grove Durack on 6 and 7 January 1999 on the trial of Mr Cant.

5 The grounds on which the defence challenge the admissibility of these items that were seized are as follows:

‘1. There never was a warrant and there was no compliance with subsections 118(4), 118(5), 118(6) and 120B(6) of the Police Administration Act.

2. Even if capable of being deemed a valid warrant in the absence of the existence of an original warrant, the ‘copy of the warrant’ produced by Detective Jordan was invalid on its face in that the authorisation to search was indiscriminately broad.

3. Even if the ‘copy of the warrant’ produced by Detective Jordan was capable of being deemed a warrant valid on its face, the initial entry into the house by Police Officers other than the warrant holder was unlawful.

4. Even if the searching of other items at 21 Cocos Grove on 6/1/99 was lawful, the search of the accused's bumbag took place at the house was unlawful because the bumbag had been unlawfully seized on Carpentaria Street.

5. Even if the searching on 6/1/99 was lawful, the further searching on 7/1/99 was unlawful because:

(a) the 6/1/99 warrant (if a valid warrant) expired the moment that 6/1/99 turned into 7/1/99;

(b) the grounds relied upon at the time of the application for the search warrant for establishing a reasonable belief that there was a dangerous drug on the premises no longer existed by the end of the searching on 6/1/99;

(c) even if the 6/1/99 ‘warrant’ was valid on its ‘face’ for the purposes of authorising a search to take place between the time of issue on 6/1/99 and midnight on 7/1/99, the further searching that took place on 7/1/99 was unlawful because the warrant permitted only a single search, not multiple searches;

(d) even if the 6/1/99 ‘warrant’ was valid on its ‘face’ for the purposes of authorising a further search to take place on 7/1/99, the initial re-entry of the house at 21 Cocos Grove on the morning of 7/1/99 was unlawful, having taken place in the absence of the warrant holder.

6. Regardless of the lawfulness of searching that took place on 6/1/99 and 7/1/99, the seizure of any items by Australian Customs Officer Esther Ray was not authorised under s.120BA because at the material time she was not ‘a member of the Police Force’.

7. Regardless of the lawfulness of searching that took place on 6/1/99 and 7/1/99, the seizure of the three mobile phones from the bumbag was not authorised by subs. 120BA(d) because the phones were not things ‘found in the possession of a person as the result of a search’ (because by the time of the search at 21 Cocos Grove they were no longer in the possession of the Accused).

8. Regardless of the lawfulness of searching that took place on 6/1/99 and 7/1/99, the seizure of the following items was not authorised by subs. 120BA(d), either because the seizing officer held no suspicion that the item seized was evidence of an offence against the Misuse of Drugs Act or because any such suspicion in respect of the seized item was not a suspicion on reasonable grounds:

(a) the three mobile phones — CC/PB(2), W14:

(b) 3 receipts (including 2 Ron Parr receipts — CC/PB(5), W17;

(c) telephone account documentation seized by Passmore — CC/MP(19), W43;

(d) telephone account documentation seized by Croker — CC/CC(23), W7 and CC/CC(24), W8;

(e) telephone account documentation seized by Jordan — CC/RJ(26), W3;

(f) Budget hire agreement seized by Ray — CC/ER(31), W29;

(g) telephone account documentation seized by Ray — CC/ER(32), W31;

(sic)(g) Budget refund receipt seized by McMaster (on 7/1/99 — CC/KM(1)

(h) Bigfoot receipt seized by Jordan (on 7/1/99) — CC/RJ(3), W5;

(i) telephone account documentation and Silk vehicle authority seized by McDonagh (on 7/1/99) — CC/GM(8), W27.’

6 I will deal with these in order:

Ground 1. There never was a warrant and there was no compliance with subsections 118(4), 118(5), 118(6) and 120B(6) of the Police Administration Act 1978 (NT).

7 Copy of the search warrant on which the Crown rely was tendered and marked Exhibit W1.

8 The evidence relating to the issuing of the Search Warrant was given by Detective Jordan and Justice of the Peace, Mr Des Feeney.

9 Detective Jordan is a Detective Senior Constable in the Northern Territory Police Force. In January 1999, Detective Jordan was with the Drug Enforcement Unit.

10 On Tuesday 6 January 1999, Detective Jordan made application for a search warrant following a conversation he had with Detective Oldfield at the Berrimah Police Complex.

11 The evidence in this matter is that Detective Jordan contacted a Justice of the Peace, Mr Des Feeney, shortly after 7.00 pm on 6 January 1999. Detective Jordan advised Mr Feeney that police had apprehended a person in Halls Creek, they located a quantity of ecstasy and had information that there was more ecstasy at 21 Cocos Grove Durack in the Northern Territory. When asked why he contacted Mr Feeney, Detective Jordan replied that ‘He's a known JP. We've used him before. He is easily contacted. He's reliable.’ Mr Feeney authorised the warrant to be issued. Detective Jordan gave evidence that the power he was operating under was s 120 of the Police Administration Act. He explained that the warrant under s 120B of the Police Administration Act is a pro forma and a standard document on the computer (t/p 223). Detective Jordan printed the form from the computer. He filled in his own name on this form before contacting Mr Feeney. Detective Jordan inserted the dates, the time it was issued, Mr Feeney's name, the expiry date and that it was a telephone warrant. The time of the application to Mr Feeney was shortly after 7.00 pm. It was this document that Detective Jordan used when the search warrant was executed at 21 Cocos Grove Durack.

12 Detective Jordan gave evidence that on the warrant (Exhibit W1) his writing is in blue, he wrote 7 January, he initialled the change of year from 1998 to 1999 and wrote: ‘- 7.03 … afternoon …. 6 ^th January 1999. Issued by Desmond John Feeney…per telephone’.

13 Detective Jordan gave evidence that when he made the telephone application he explained to Mr Feeney that he would like to apply for a search warrant, gave his own name and made an application on oath for a warrant to search the premises at 21 Cocos Grove. Detective Jordan said he inserted the name of Des Feeney on the form of the warrant and told Mr Feeney the grounds for applying for the warrant.

14 Detective Jordan gave further evidence that he informed Mr Feeney about the start of the operation (being Operation Caelum) which was the operation concerning police surveillance of Mr Cant and observations of heroin dealing by Mr Godbier.

15 In cross examination, Detective Jordan agreed that his conversation with Mr Feeney took two or three minutes.

16 Detective Jordan confirmed evidence given at the committal that when he telephoned Mr Feeney he explained he was applying for a warrant. Mr Feeney had replied ‘okay, tell me what it is about’. Detective Jordan then indicated the nature of the information he had and what he wanted to do. Mr Feeney had replied ‘yeah, that's fine’. Detective Jordan gave evidence that the original warrant, being the document to be completed by the Justice of the Peace had not been forwarded to the Commissioner of Police. The warrant which was Exhibit W1 was shown to Detective Jordan in re-examination. Detective Jordan stated he had taken this document to Mr Feeney on 7 January after they had completed the search. Mr Feeney had looked at it and signed it. Detective Jordan had retained the warrant. It is Detective Jordan's evidence that he understood this was complying with the requirement to forward the warrant to the Commissioner of Police as...