Thursday, 15 March 2012

GA, MM & PJ v The Queen [2012] VSCA 44: Acting without warrant

Where a specific power exists, that power ought be preferred. But where a specific power exists, that doesn't (without more) invalidate the existence of a more general power.

G A, MM & P J v The Queen provides a simple demonstration of the principle. There is a specific warrant to search a vehicle for drugs available to law enforcement officials under s 81 of the Drugs, Poisons & Controlled Substances Act 1981. But where the criteria for a search under s 82 of that same Act is met, the ability to apply for a warrant doesn't invalidate the police's power to act without a warrant.

The Court of Appeal appeared almost dismayed at the lack of thought given to the scope of the search that led the Victoria Police to apply for a warrant to search a vehicle seized on a public road and delivered to the Fawkner Police Station (and later, the Forensic Science Centre) for examination.

Neave, Redlich and Harper JJA [beginning at 16]:

Both the prosecution and defence have since conducted this case on the basis that the removal of the Toyota to the Fawkner Police Station was illegal. That conclusion is not necessarily correct. Section 82 of the Act applies not only to a vehicle in a public place, but also – and equally – to (among other things) a ‘vessel, underway or not’, where a police officer has reasonable grounds for suspecting that there is on that vessel ‘a drug of dependence in respect of which an offence has been committed, or is reasonably suspected to have been committed’. Those preconditions having been met, the officer ‘may with such assistance as he thinks necessary’ search the vessel.

It may well be necessary, in order to give effect to this power, to move the vessel to a harbour safe from rough seas and bad weather, and where the assistance of men and facilities to carry out a search – which might otherwise be impossible either at sea or on land – may be available. If this is so with vessels, it may also be the same with vehicles, since the section provides no obvious reason to differentiate between them. With vehicles, as with vessels, the officer may conduct the search with such assistance as he or she thinks necessary.

There is another consideration supporting the conclusion that no warrant was necessary. There is nothing in the legislation, or in the prescribed form of the warrant, which would cover the issue of a warrant for the removal of a vehicle from a public road to a site at which an appropriately thorough search might be carried out. The applicants did not in their submissions put forward any answer to the proposition (which, it must be added, the Crown never advanced) that it is by no means certain at what point the warrant, assumed by the parties to be necessary, became so. In other words, the point at which the authority of s 82 was assumed to expire, and the need for the authority of a warrant was assumed to arise, was not explored.

Finally, the parties did not advert to the fact that the prescribed form of warrant makes no ready provision for the giving of authority to search a vehicle which is not on public land and which is thought to contain something which might afford evidence of the commission of an offence. That, however, is precisely the position of the Toyota once it arrived at the Fawkner Police Station. Were the prescribed form to be used as authority to search that vehicle, as then situated, the prescribed form would require careful modification so as to remain ‘to the effect of the form of Schedule Ten’ while identifying with specificity the authority which it conferred.

The failure to address these issues is regrettable. It is at least arguable that everything which followed the interception of the Toyota on the Hume Highway near Benalla was covered by the authority, conferred by s 82, to search that vehicle ‘with such assistance as ... necessary’. Were that argument made good, so much of the case of the applicants as relies on the illegality of the warrant which the Fawkner police eventually obtained, would fail.

The Court of Appeal went on to find that the procedural irregularities involved in the seizure and search of the suspect vehicle should not give rise to the exclusion of the discovery of one kilogram of methylamphetamine from a concealed compartment in the dashboard - or if it will, not for the rulings made thus far by the trial judge.

(A collateral issue regarding the swearing of affidavits has recently also been dealt with at length in R v Mokbel (Change of Pleas) [2012] VSC 86).

The interlocutory application for leave was dismissed, and the matter returned for trial.


Jeremy Gans said...

No need to rely upon any broad principle about general and specific powers. Section 81(7) expressly states: 'Nothing in this section affects the power of a member of the police force under section 82.'

The real stunner of this decision is the broad reading given to s82, which is a 'search without warrant' power. I'm far from convinced that the word 'search' and the provision to use 'assistance' are enough to authorise confiscating someone's car and moving it to a police station to be sniffed (and, it seems, dismantled.) The analogy to the (supposed) need to tow vessels in 'rough seas' to a 'safe harbour' is specious. The 'vessels' power in s82 covers vessels anywhere, while the 'vehicles' power is expressly limited to public places. And what about the power to search 'persons in public places', which is also in s82? Does that include the power to 'remove' them to a police station too? On reasonable suspicion (not belief?) Amazing.

And there are other contrary indications in s82. It expressly provides a power to 'seize and carry away' instruments, devices, substances and drugs. Funny that it doesn't mention vehicles! And the CoA doesn't avert to the need for express words or necessary intendment to interfere with common law rights (as in the HCA decision in Coco, which seems at odds with the CoA's approach.) And (naturally) the CoA makes no mention of the Charter. 'The failure to address these issues is' indeed 'regrettable'!

Maybe there's a gap in the Act that needs to be filled. If so, it seems very dodgy for the CoA to fill it itself (and without argument from the parties.) Anyway, it seems to me that the police were right: the warrant power in s81, which expressly includes (at (3)(d)(ii)) a power to seize and carry away likely evidence of an offence, does strike me as apt to cover moving a car to a police station. It's true that the prescribed form of warrant doesn't quite fit (not that that matters - see s133) and that the cops garbled the warrant. But none of that is any reason to dramatically broaden a warrantless search provision.

To my mind, this judgment is just further evidence that the 'interlocutory appeals' system is producing rushed, poor quality reasoning from the Court of Appeal. It's particularly scary in this case, because the cops will rely on this obiter nonsense from now on.

Jeremy Gans said...

And one more thing. At [38], the CoA claims that the passage of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 means that the flaw in the cops' affidavit in this case doesn't matter.

I'm dubious that the terms of the validation provision cover the particular error made by the cop. The new section 165 doesn't validate all bungled affidavits, but just ones that were affected by a specific list of errors. The only relevant error in the list here is the failure to make the oath or affirmation 'orally. But the cop says that he did orally swear the affidavit; the problem was that his oath left out any reference to 'Almighty God' (or the like.) I'm not sure that's the same thing. And surely provisions like s165 need to be construed pretty strictly?

Regardless, the CoA's reliance on s165 in this case is totally wrong. The transitional provision in sub-s 165(5)(c) clearly exempts any proceeding where a court has already ruled on admissibility before the day on which the amending Act got Royal Assent. The County Court ruled that the disputed evidence was admissible on 6 December 2011, over two months before Royal Assent.

jordon said...

In this case the police is playing important role, like the warrent is not there and the arresting of a doubted persons.

Solicitors In Surrey