Friday, 9 April 2010

R v Williamson [2009] QSC 434: the ends justify the means

They're a little strange up there in the Sunshine State - and I'm not just talking about the policemen who wear shorts and judges who Google legal terms rather than asking for submissions from counsel.

In The Queen v Williamson [2009] QSC 434, the Queensland Supreme Court needed to determine the admissibility of some highly incriminating evidence that the police had unlawfully obtained by forcing entry to a pair of sheds without a warrant.

[3] Inside Shed 20 was about $4000 in cash, a small quantity of cocaine, more than five kilograms of high grade cannabis packaged for sale in a variety of weights, tablets and substances containing more than 200 grams of Methylamphetamine, 1500 light brown tablets containing in excess of 26 grams of Methylenedioxyethylamphetamine and more than 80 grams of Methylenedioxymethamphetamine, cannabis seeds, a .45 calibre pistol, ammunition and electronic scales (weights are estimated pure).

[4] In Shed 28, more than $500,000 in cash was discovered.

The Queensland Police Service have recourse to a statutory power not available to their brothers and sisters down here. It allows them to enter and search places if they believe that evidence will be concealed or destroyed if they do not act immediately: s 160 Police Powers and Responsibilities Act 2000. The police then apply for a post-search approval from a magistrate, which will be granted if the magistrate is satisfied that the preconditions for a search without authority had been met.

Byrne SJA ruled that although a magistrate had subsequently granted this post-search approval this wasn't conclusive as to the admissibility of evidence at trial. This was particularly so where it seemed impossible to expect that the police held such fears of the loss of the evidence once they had the buildings surrounded.

[25] [The lead investigator] arrived at the sheds to find Shed 20 externally locked and secure. He found nothing to suggest that anyone might be inside. He must surely have realised, as was obvious, that with him and at least one other officer there, no one else would try to enter. Or in the highly improbable event that anyone attempted to do so, clearly the police would have been justified in entering immediately to prevent concealment or destruction of the contents.

[26] In those circumstances, at the time the police entered Shed 20, there was no basis for a suspicion that things inside that shed might be concealed or destroyed in the absence of immediate entry.

The searches were deemed unlawful. The trial judge then had to decide what to do with the evidence unlawfully obtained, applying the principles of Bunning v Cross (1978) 141 CLR 54 and Ridgeway v The Queen (1995) 184 CLR 19.

After further discussion of the relevant authorities, Byrne SJA said,

[50] Should the discretion be exercised to exclude evidence of the things found in the illegal searches?

[51] The deliberate disregard of the law by those whose duty it is to enforce it (see Stead at 671, citing Bunning v Cross at 78) is a highly significant factor, favouring exclusion of evidence of what was found in Sheds 20 and 28.

[52] So, too, does the consideration that a search warrant could easily have been obtained, and in circumstances where a delay in entering while the warrant was obtained could not have resulted in concealment or destruction of shed contents.

[53] But what was found in the sheds seems vital to the prosecution case.

[54] In the circumstances, exclusion of evidence of the shed contents could well let a man guilty of serious crimes go free. (Mr Farr acknowledges, appropriately enough, that a conviction after a trial in respect of this trafficking charge would attract a sentence of at least ten years imprisonment.)

[55] Here, then, there is every chance that suppression of the truth would impose substantial social costs.

[56] Weighing the pertinent factors, the balance decidedly favours refusal of the application to exclude evidence about the shed contents.

Perhaps the Queensland Supreme Court placed great emphasis on the cogency of the evidence that resulted from the search, though it didn't say that. (Cogency is one of the considerations the High Court put forward as relevant to the exercise of the Bunning v Cross discretion, though I hadn't understood the Court to mean that it's relevant to consider whether the accused is guilty of the offence and then work backwards to decide admissibility of the evidence that would prove it). The seriousness of the crime alleged was obviously a factor favouring admission.

It will be interesting to see whether the ruling is upheld on the (almost inevitable) appeal.

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