Rape charges against a Melbourne man are set to be dropped after the Victorian court of appeal found police showed an “astonishing disregard” for the law during a search of the alleged offender’s home.
Six officers searched the home on Christmas Day 2020 as part of an attempt to find a missing 17-year-old girl, known as CM, who had left a residential care facility and threatened to kill herself.
The teenager’s care worker told police that CM had been drugged and was being held against her will by a 45-year-old man in Melbourne’s north-east, the court of appeal found in a judgment published last week.
Police obtained a safe custody warrant to search the home of the man, who lived with his parents. The terms of the warrant allowed officers to search any place a child was suspected to be and to remove the child and place them in “safe custody”.
Within minutes, the officers found that the home was empty. But officers continued to search the home for more than an hour, allegedly finding drugs, cash and several electronic devices.
One of the officers found a laptop and when it was searched he uncovered a video of a man allegedly raping a woman who appeared to be asleep.
In April 2021, officers obtained a second warrant in order to investigate the material found during the first search.
They again searched the house, seizing the laptop, other electronic devices and allegedly illegal drugs.
The man, who cannot be identified, was charged with four counts of rape, drug offences and breaches of family-violence-related orders. The alleged rapes were committed against his former partner, who told police she had no memory of them and had not consented.
His lawyers argued in the county court last year that the evidence seized in the course of the April search should be excluded from his trial, as it was only obtained as a consequence of the “improper and/or illegal” Christmas Day search. This fact was conceded by the prosecution.
A judge denied his application with “some hesitation”, finding that the prosecution had met the onus of establishing that the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence.
The alleged offender appealed this ruling on three grounds, including that the trial judge failed to place sufficient weight on the nature of the impropriety by police in continuing the search and finding that the officer who found the laptop alone was responsible, without the “oversight and/or assistance of senior police”.
The court of appeal upheld his appeal, finding that the county court judge was wrong in characterising the actions of the officer who searched the laptop “as reckless and constituting mid‑level impropriety”.
It found that given the length of time over which the search was conducted that “the level of impropriety – in truth illegality – was considerably higher than mid-range”.
“The applicant’s right to privacy was seriously violated over a lengthy period of time and with no apparent consideration given to the illegality of the search and the breach of that right.”
The court found that while not determinative to the outcome of the application, it was of “real significance” that no disciplinary action had been taken against the officers but that the “prosecution now endeavours to persuade the court to give its imprimatur to this significant impropriety”.
“We decline to give judicial imprimatur to a search carried out by sworn officers with such astonishing disregard for both the law and the rights of the applicant.”
The court agreed with the characterisation of the county court judge that the video material was “foundational” to the rape charges and also the drug offences, and that therefore any decision to accept that evidence could not be admitted meant the charges were likely to be dropped.
But the body-worn camera footage of police undertaking the search made “compelling” evidence that it had not been properly obtained.
“We repeat there was no legitimate basis for the search after five minutes of entering the house and the idea that the balance of the search was directed to ascertaining CM’s whereabouts is rejected,” the court ruling said.
“No part of the search after five minutes was directed to ascertain the whereabouts of CM, but rather it appears to have been a forensic exercise directed to eliciting evidence of general criminality without any proper basis for the police officers being on the premises.”
