Director of Public Prosecutions (NSW) v Karen Maree Roberts (No 2)

1. [1]

   These proceedings were commenced by Summons filed on 1 October 2015 in which the plaintiff appealed pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (the Act) from a decision of Magistrate Heilpern in the Lismore Local Court on 10 July 2015, dismissing two charges brought against the defendant for the offences of hindering a police officer in the execution of duty (contrary to s 546C of the Crimes Act 1900) and assaulting a police officer in the execution of duty (contrary to s 58 of the Crimes Act).

2. [2]

   In the Summons an order was sought, inter alia, that the matter be remitted to the Local Court to be dealt with according to law.

3. [3]

   On 1 September 2016 I delivered judgment: Director of Public Prosecutions (NSW) v Roberts [2016] NSWSC 1224. In that judgment I held that the Magistrate had erred in his construction of the provisions of s 69 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and erred in dismissing the charges on that basis: at [146].

4. [4]

   In that judgment I determined that, in the light of the proper construction of the provisions of s 69 which admitted of an exception as to exigent circumstances, there remained a question as to whether it was open to the Local Court to determine on the evidence that exigent circumstances in fact existed in this case: at [147].

5. [5]

   The proceedings were relisted for further submissions in relation to the question as to whether or not the proceedings should be remitted.

6. [6]

   Written submissions, prepared by Ms Joanna Davidson of counsel, were filed on 22 September 2016 on behalf of the plaintiff. Written submissions, prepared by Mr Christopher McGorey, were filed on 29 September 2016 on behalf of the defendant.

7. [7]

   The proceedings were listed for further hearing on 4 October 2016 on which occasion further oral submissions on behalf of the plaintiff and the defendant were made by counsel.

Evidence of Senior Constable Gulliver

1. [8]

   The issue that now arises for determination requires an examination of the evidence given by Senior Constable Gulliver (the executing officer) in the Local Court as to the events leading up to the execution of the search warrant at the defendant’s premises. In particular, the evidence is to be examined as to whether it establishes “reasonable grounds” that, at the time of execution of the search warrant, there were in fact exigent circumstances that constituted a risk or threat to the “safety…of police or others associated with the execution of a search warrant”.

2. [9]

   A primary factual matter established by the evidence of the executing officer concerned his initial conduct and decision upon arrival at the defendant’s premises and before the execution of the search warrant commenced. In that respect his evidence included the fact that he decided that he would not approach the defendant’s house with the search warrant in his physical possession but instead decided to leave it in the police car. His evidence was that the search warrant was in a folder, a hard folder which was not able to be folded up. On this issue he was challenged, it being put to him that the search warrant could have been taken from the folder, folded and placed in the pockets of the cargo pants that he was wearing. Had he done so, he would have been in a position to have produced it upon request by the occupier of the premises.

3. [10]

   The executing officer’s decision not to take the search warrant with him is of significance in that if, as occurred, the defendant/occupier made a request to see the search warrant, the executing officer was not in a position to immediately produce it for inspection. In those circumstances, the officer had placed himself in a position wherein he was faced with the choice of returning to the police vehicle and obtain the search warrant, or to proceed without it, notwithstanding the request for its production.

4. [11]

   As events transpired, police entered the home of the defendant without producing the search warrant, the defendant having made a request to see the warrant.

5. [12]

   Consideration must also be given to any other relevant circumstances that occurred prior to the entry and search by police. In particular did the circumstances establish reasonable grounds for a belief that a risk or threat to the safety of police or others existed? If so, what did the evidence establish as to the nature and level of any risk or threat? In other words, there is a requirement to examine the evidence for the purpose of determining whether, objectively, exigent circumstances existed justifying the failure by police to respond to the request for production of the warrant and proceed to enter the premises without having done so.

Submissions for the Plaintiff

1. [13]

   As noted in the written submissions for the plaintiff at [5], in the primary judgment a finding was made that “exigent circumstances” would extend to circumstances in which “on reasonable grounds, there exists a risk or threat for the safety of police or others associated with the execution of a search warrant”. It was further observed that evidence of such circumstances must exist prior to entry, “it not being open to those executing the warrant to rely on ex post facto justifications”: at [137], [143] and [144].

2. [14]

   The submission for the plaintiff was that there was evidence before the Magistrate which would allow for a finding of exigent circumstances. That submission was strongly disputed by Mr McGorey in his submissions, as discussed below.

3. [15]

   In the submissions for the plaintiff, the evidence of the executing officer focused upon the following:

   1. (1)

      Whether the defendant had a prior history of violence. The officer stated that there was an occasion involving the defendant of assault police. There were no particulars given in evidence as to the date or nature or circumstances of the “assault” by the defendant.

   2. (2)

      The executing officer’s explanation for not taking the search warrant into the house. The plaintiff relied upon evidence of the executing officer that he did not wish to have “both hands full” due to his past experience with the defendant. He stated that if, as he expected, there would be some sort of “confrontation”, a search warrant would probably be “ripped up by Ms Roberts”. In that respect, he relied upon past experience with the defendant. However, when asked whether the defendant had done such a thing previously, the executing officer said that she had not done so with a search warrant but that she had quite violently resisted.

   3. (3)

      In relation to how taking the search warrant would have impacted on his safety, the effect of his evidence was “if there (are) officer safety issues” then he was certainly not going to have both hands full and place himself at risk in that respect. Again, the issue arises as to the officer’s decision not to take the search warrant, fold it and place it in his pocket, so as to enable him then to be hands-free.

   4. (4)

      The officer’s evidence adverted to the possibility of him being distracted by holding a piece of paper in his hand:

4. [16]

   On the basis that there is evidence of exigent circumstances, it was submitted for the plaintiff that it is appropriate for the proceedings to be remitted back to the Magistrate in accordance with Prayer 3 of the Summons.

Defendant’s Submissions

1. [17]

   The defendant submitted that the Court would be satisfied that the only conclusion open to a Magistrate, if the matter were remitted, is that the exigent circumstances exception had not been made out: Written Submissions at [2].

2. [18]

   On that basis, it was submitted, the Court should not stand aside the acquittal or remit the matter for redetermination in accordance with law: at [3].

3. [19]

   It was noted that the plaintiff’s appeal was brought on a ground involving a question of law alone. By s 59(2) of the Act, this Court may determine the appeal by setting aside the order and making such other order as the Court thinks just or by dismissing the appeal.

4. [20]

   The defendant noted a number of authorities concerning the determination of appeals on grounds involving a question of law alone under Part 5 of the Act.

5. [21]

   Reference was made to the decision in Director of Public Prosecutions v Fraser & O’Donnell [2008] NSWSC 244 per Simpson J at [21]-[24].

6. [22]

   In that case, her Honour observed at [24]:

7. [23]

   Similarly, in RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 the Court of Appeal heard an appeal against the dismissal of an application brought pursuant to s 52 of the Act. In the course of the decision Basten JA observed at [43]:

8. [24]

   Reference was made to the decision in Turner v Wheeler [2016] NSWSC 345 in which Campbell J determined an appeal against an interlocutory order pursuant to s 53(3)(b) of the Act. The appeal was against a Magistrate’s refusal of leave to an accused to withdraw guilty pleas.

9. [25]

   Having determined that the Magistrate had erred in law, his Honour considered the options available pursuant to s 53(3). It was noted in the defendant’s submissions in that case that, similarly to s 59(2), his Honour was permitted to make such order as the Court thinks just or dismiss the appeal: at [33].

10. [26]

    His Honour determined that the matter should be remitted. His Honour noted that it might have been said that if the evidence of the plaintiff was accepted, only one conclusion was open, but that that conclusion would require him to have found facts, not found by the Magistrate, and accordingly it was not open to him to give effect to that view: at [40].

11. [27]

    The defendant submitted that the current appeal differs to the situation in Turner. An option open to this Court is not to make the orders sought by the plaintiff rather than making an alternative order to that made at first instance: at [23].

12. [28]

    The defendant submitted that, on the authorities cited the following principles are relevant in the determination of the current appeal and the issue of remittal:

    1. (1)

       The Court would not proceed to determine, on a final basis, that exigent circumstances had in fact been made out.

    2. (2)

       The Court may refuse to remit the matter if it was satisfied that the only conclusion open to the Magistrate was that the exigent circumstances exception was not made out.

    3. (3)

       Related to (2) above, if particular findings of fact were not made by the Magistrate at first instance, the Court should assume findings of fact favourable to the prosecution’s case taking the evidence in its case at its highest.

    4. (4)

       The Court may otherwise refuse to remit a matter having regard to the circumstances of the matter: Basten JA in RH v DPP, supra, at [44]; and Hidden J in Campbell v DPP [2008] NSWSC 1284. The defendant did not argue against remittal on this basis.

13. [29]

    The submission for the defendant was that the Court can be satisfied that the only conclusion that would be open to the Magistrate, if the proceedings were remitted, is that the exigent circumstances exception was not made out.

14. [30]

    In support, it was observed that an important objective of s 69 of LEPRA is reducing the likelihood of resistance by enabling an occupier to satisfy him or herself as to the lawfulness of the entry into his or her premises and the potential seizure of items from the premises.

15. [31]

    The exigent circumstances exception, it was submitted, extends to circumstances in which, on reasonable grounds, there existed a risk or a threat to the safety of police or others, or an imminent risk or threat of destruction that is the subject of the warrant.

16. [32]

    The exigent circumstances exception was said to be a tighter exception than the less rigorous formulation “as soon as reasonably practicable” referring in that respect to the observations in the principal judgment in this case at [145].

17. [33]

    It was further submitted that the greater the departure from the statutory obligations and requirements in relation to the obligation to produce a search warrant upon request, the heavier the onus on the police to justify their approach. The evidence to justify such a departure, it was submitted, must be apparent on the record and available to the police at the time they acted: R v Cornell [2010] 2 SCR 142 at [18] and [20].

18. [34]

    In Cornell it was noted that police conducted a ‘hard entry’ without prior announcement. In relation to the risk of destruction of evidence, it was noted in the defendant’s submissions that Binnie, LeBel and Fish JJ (dissenting) stated at [51]:

19. [35]

    It was submitted that this passage ought to be applied to the exigent circumstance exception in the NSW jurisdiction given the requirement that the relevant belief be a reasonable one.

20. [36]

    It was also contended that the evidence to justify refusal or failure to produce a warrant on request must exist prior to entry. It is not open to those executing a warrant to rely upon ex post facto justifications. Reliance in that respect is placed upon observations made in the principal judgment in the present proceedings at [144].

21. [37]

    It was further submitted that the obligation under s 69 of LEPRA goes no further than to require an executing officer to produce the warrant for inspection upon request and does not require the officer to stand and wait while it is being inspected. There was no reason to suppose that an executing officer in discharging that obligation would be materially delayed in executing the warrant or gaining entry to the premises. To the contrary, it was submitted that it would be likely to lead to entry without resistance.

22. [38]

    It was submitted that if the executing officer is concerned about his or her safety, then it may be sufficient for the officer to place the warrant in a position where the occupier may pick it up. Reference in this respect was made to the observations in Commissioner of the Australian Federal Police v Oke (2007) 159 FCR 441; [2007] FCAFC 94 at [45].

23. [39]

    The defendant’s submissions then made detailed reference to certain of the evidence given by the executing officer before the Magistrate.

24. [40]

    It was noted that the executing officer did not give evidence that he was concerned, or anticipated violence by, Ambrose Roberts (the armed robbery suspect). His concern related to police encountering resistance to them gaining entry. Reference was made to the evidence he gave in his examination-in-chief on 10 July 2015 (T 4) in which he related approaching the house with another police officer, walking down the path towards the front door with his badge out, he being in plain clothes. He said he was carrying a ‘jimmy’ bar in his left hand and added:

25. [41]

    In relation to any specific concerns about the defendant, the executing officer gave evidence of past occasions in which she had been “hostile” and refused police entry to her front yard or “by avenue of the door” and that she would talk to police through the front door or a closed window and police were “usually met by abuse’. He then elaborated in the following evidence:

26. [42]

    In relation to this evidence as noted above, it was observed that the executing officer provided no particulars as to the “assault police” incident that he purportedly witnessed. In relation to the defendant’s behaviour during past bail compliance checks, he conceded in cross-examination that she had never been under any obligation on those occasions to “do anything”: (T17: 47-48). Consequently her behaviour on those occasions could not be characterised as unlawful resistance.

27. [43]

    In addition, it was noted that during the executing officer’s examination-in-chief, the only justification offered by him for not taking a copy of the warrant with him, or producing it upon request, was his desire to keep one hand free owing to his expectation of resistance at the point of entry. The following evidence given on 10 July 2015 (T 8-9) was extracted into the defendant’s Written Submissions at [44]:

28. [44]

    The submission for the defendant was that even if it is assumed that the executing officer believed he needed to keep at least one hand free upon entry it remained open to him to place a copy of the warrant for the defendant’s inspection near the door at a safe distance. The submission proceeded at [45]:

29. [45]

    It was also submitted on behalf of the defendant at [46]:

30. [46]

    The defendant relied upon observations of Hope A-JA in Lippl v Haines (1989) 18 NSWLR 620 at 627-8, 636 and 637-8. That case involved members of the armed hold-up squad forcibly entering the appellant’s home without prior announcement before entry. The submission then was that in this case in relation to the risk of evidence being disposed or concealed, it was again observed that the defendant’s house was surrounded. It was not a situation where anyone in the house would have been able to flee with evidence if entry through the front door had been delayed. Police were searching for clothing and glass bottles rather than items that might easily be disposed of, such as drugs: at [51].

31. [47]

    It was submitted for the defendant at [52]:

32. [48]

    It was noted that the executing officer’s reported concern about possible destruction or disposal of items arose only in cross-examination. It was further noted that even if is assumed that he held such a belief as to a risk of disposal or destruction, he gave no evidence at all as to the basis for any such belief. Further it was observed that there was no evidence that the defendant or anyone else in the home had any prior history of destroying or concealing evidence.

33. [49]

    The defendant’s submission was that the only conclusion open to a Magistrate is that the exigent circumstances exception was not made out and that, accordingly, the Court should not stand aside the acquittal or remit the matter for redetermination.

Consideration

1. [50]

   In the principal judgment, reference was made to the High Court’s long insistence on the rule of strictness in expressing the law governing search warrants and to authority establishing that search and seizure provisions are to be seen as subject to the general principles that govern statutory interference with established common law rights and freedoms: at [99] and [102].

2. [51]

   In the determination of the “exigent circumstances” question in the present proceedings, it is critical to identify the actions of attending police and the circumstances that presented up to and at the time of their entry into the defendant’s home.

3. [52]

   The relevant time frame of events commenced at the point in time in which the executing officer determined to leave the search warrant in the police vehicle. At [38] and [39] of the principal judgment, reference was made to his evidence as to the possibility of following a different course, that is to say folding the search warrant and placing it in his pocket and therefore having it available to him if a request was made for its production.

4. [53]

   As noted above, in response to a question in that respect by the Magistrate, the officer stated his dislike of folding search warrant documents as a matter of “Personal preference…”: at [39].

5. [54]

   The next relevant segment of time is that between the executing officer’s entry onto the defendant’s premises up to the time that police actually entered the home. The evidence clearly established that after the executing officer entered upon the premises and walked to the front verandah, he saw and spoke to the defendant. In particular, at that stage he heard her request to see the search warrant. It is important to observe that up to that point in time, no circumstance or event had occurred involving the defendant or anyone else acting in any threatening or violent manner. In response to the defendant’s request to see the warrant, the executing officer refused. The defendant again asked to see the search warrant and it was at that point in time that the defendant grabbed the officer’s shirt, which was torn. There is no evidence that, prior to and up to that incident, there had been any threat made or sign of violence. There was no evidence of any belief held up to that point on stated grounds that an imminent threat to the safety of any officer or other person existed. Upon the defendant reaching out and grabbing the shirt police entered the home without having produced the search warrant.

6. [55]

   The case accordingly was one in which at the time the defendant first made a request to see the search warrant, no verbal threat or action had been taken by the defendant or anyone else posing a danger of harm or a danger to the safety of police involved in the execution of the warrant.

7. [56]

   The evidence led from the executing officer in the Local Court was wholly focused upon prior dealings (that is before the day in question) between police, in particular the executing officer, and the defendant, as providing some evidentiary basis for the course of action pursued by the police in the execution of the search warrant without having produced the warrant. The effect of that evidence, as noted in the principal judgment, was that police, in particular the principal executing officer, had attended the premises on prior occasions in respect of bail checks and no incident of violence or threat or risk of harm had occurred on such occasions. The executing officer stated in evidence that on no prior occasion had the defendant reached out and torn up documents. The only indication that there had been any incident in the past was the unspecified incident referred to by the executing officer when he said he witnessed some form of police assault. He did not say when that occurred, nor provide any evidence as to the circumstances leading up to or surrounding the assault and he did not specify the nature of the assault or whether it involved a serious threat of harm to safety to the police officer in question, or as to whether or not any harm or deleterious effect had resulted. Further, there was no evidence that that particular incident in fact formed the basis for any apprehension in the executing officer or anyone else in the minds of police on the day the search warrant was executed either before or after the defendant’s request to see the warrant.

8. [57]

   Accordingly, during the course of the hearing, the evidence to establish that there existed reasonable grounds for a belief that there was a risk or threat to police safety or to anyone else involved in the execution of the warrant, was linked to the unspecified “police assault” incident but this in circumstances where there was no evidence that police had in fact given consideration to that particular incident in forming any view as to any possible risk or threat to safety of police.

9. [58]

   As noted in the principal judgment at [144] consistently with the observations of Cromwell J in R v Cornell, supra, at [20] evidence to justify a refusal or failure to produce a warrant to an occupier upon request by him or her must exist prior to entry. It is not being open to those executing the warrant to rely upon ex post facto justification.

10. [59]

    In R v Cornell, as noted at [137] of the principal judgment, in the discussion as to the importance of the requirement for “knock and announce” that is also subject to an exception as to exigent circumstances, it was noted that the greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach.

11. [60]

    In the present case the defendant, as occupier of the premises, had twice requested production of the search warrant and she was twice refused. On the point of the second refusal, police entered the premises without having produced or shown the warrant. When viewed in terms of Cornell, in terms of the proposition that the greater the departure from the standard set by LEPRA, the heavier the onus on the police to justify their approach – the fact is that the circumstances in which the police entered the premises without the warrant despite the defendant’s request to see it, on the evidence, was not shown in the evidence before the Magistrate to have been based upon a belief formed by police that the defendant or another occupier was liable to act in a way that posed a risk or threat or imperilled the safety of the executing officer or any other police or person involved in the execution of the warrant.

12. [61]

    In the principal judgment at [146] it was noted that it was common ground between the parties that the Magistrate erred in his construction of s 69 of LEPRA. As stated in the Defendant’s written submissions dated and filed 8 March 2016, the Defendant accepted that the Magistrate approached the construction of s 69 as requiring the immediate production of a search warrant, upon a request for the production of the same, in all cases irrespective of the circumstances and that his Honour erred in that respect: Submissions at [2] and [3].

13. [62]

    The question for determination now is, whether the evidence adduced before the Magistrate is capable of supporting a finding of exigent circumstances. If it was capable of supporting such a finding, then the order sought in the summons ought to be made. If, on the other hand, that evidence could not support such a finding, then there would exist no basis or justification for remitting the proceedings back to the Local Court.

14. [63]

    I do not consider that the evidence before the Magistrate established or was capable of supporting the existence of exigent circumstances at any time prior to the defendant’s first request to see the search warrant or prior to their entry into the premises. In those circumstances, the interests of justice would not require that proceedings be remitted to the Local Court.

15. [64]

    Accordingly, for the reasons set out above, the relief sought in the Summons is refused.

16. [65]

    I have been provided a document entitled Joint Submissions on Costs, signed by the parties and dated 12 December 2016. As noted in [11] of that document, the parties agree that the normal presumption that costs follow the event should be set aside.

17. [66]

    In [13] the parties agree that, if the appeal is dismissed, then costs should not be ordered because of the agreement of the parties.

18. [67]

    Accordingly, I make no order as to costs.