Illegal police search causes armed robbery trial to collapse

The unlawful search – described by an ACT Supreme Court judge as "reckless", unnecessary, and a "significant impropriety" – took place as police investigated a home invasion in Ngunnawal in December 2014.

Police did not tell a magistrate of their illegal search when applying for a proper warrant to search the property a short time later, and the first hint of misconduct emerged last week at trial, and only after the constable involved "ducked and weaved" in response to questions from defence lawyer Michael Kukulies-Smith.

On December 13, 2014, a group of men armed with baseball bats entered the home of the victim.

The victim allegedly owed one of the men $3000 for a car that he had purchased, crashed, and then refused to pay for.

The group took a television from the home, and the victim called police, telling them he believed the robbers were associated with a neighbour over his back fence.

Police followed up on the lead, going to the property, entering a side gate, walking to the front door, and knocking without getting an answer.

A female constable then began searching the carport, later telling the ACT Supreme Court that she wanted to take down vehicle registrations.

She had no warrant. It would have only taken an hour for her to get such a warrant over the phone, the ACT Supreme Court heard.

The officer spent roughly 10 minutes on the property, and found the stolen television.

Her sergeant told her that they shouldn't be on the property, and the pair retreated.

They then asked a third police officer, who had no idea that her colleagues had been on the property illegally, to call up a magistrate and ask for an urgent warrant.

The warrant was granted, and the television was seized. Fingerprints linked it to a number of men, including Orry Kuzma, 21.

It was the only piece of evidence identifying Kuzma – the victim could not select him from a photoboard, as he had with others in the group.

Doubts about police behaviour first emerged in the ACT Supreme Court last week, as Kuzma's defence probed an unrelated, more technical problem with the warrant.

In cross-examination of the constable who searched the carport, defence lawyer Mr Kukulies-Smith managed to extract from her that she was on the property without a warrant, and had committed an offence of trespass.

Mr Kukulies-Smith asked: "So you conceded that you were committing an offence by going inside that carport?"

The officer responded: "I was making inquiries into trying to establish who lived at the residence."

The lawyer again asked: "And in making those inquiries you committed an offence?"

The officer said: "I entered the carport, yes."

Mr Kukulies-Smith yet again asked: "And that was an offence?"

She responded: "Yes", and Mr Kukulies-Smith said:

"But it took us four questions to get you to admit it because you didn't want to admit it was an offence, did you?"

On Friday, ACT Supreme Court acting Justice Stephen Walmsley found the impropriety meant the television could not be used as evidence, and Crown prosecutor Keegan Lee was forced to drop the charges against Kuzma.

Justice Walmsley was particularly critical of the searching officer, who he described as an "unsatisfactory witness", who was clearly reluctant to answer questions.

"She gave no explanation for her illegality," he said.

"Her attitude when giving evidence about her illegality in this court ... when she hedged and hedged and ducked and weaved before finally admitting her wrongdoing, gives me no confidence that she or those who mentor her, either that night or even now, have respect for their legal obligations."

"I consider her action in committing the criminal offence was reckless at the least. Her senior officer should have ensured [the third officer] was told of the illegality so the magistrate could have been given a complete picture before he authorised the warrant."

Justice Walmsley said it wasn't suggested that the third officer deliberately misled the magistrate when calling through to obtain the warrant.

He said it was vital that police comply with laws, and that breaches undermine "the protections which benefit all members of society, especially those innocent members who may find themselves wrongly suspected of criminal activity".

"Some might regard the incident as trivial, after all the police did find the stolen television, but it is especially important when dealing with police powers that the end should not justify the means," he said.

"Police must understand their obligations to comply with the law and be frank about it when applying for warrants."