Understanding the case of Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) [2025] ACTCA 8
In the case of “Fletcher v Knight,” (Fletcher (a pseudonym) v Knight (a Pseudonym) (No 2) [2025] ACTCA 8) the appellants were accused of using hidden cameras to capture intimate images of their female tenants. The evidence against them was obtained from electronic devices seized following arrests and during a police search.
The admissibility of this evidence was contested due to alleged breaches in the execution of search warrants and the alleged unlawfulness of their arrest. The ACT Court of Appeal ultimately dismissed both the appellants’ appeal and the prosecution cross-appeal, upholding the exclusion of evidence from an HP laptop due to a cover-up by the investigating officer.
Amongst other legal matters, the case provides a useful analysis of how courts should consider police cover-ups in the exclusion of evidence and what state of mind is required by searching officers when armed with a “shopping list” of items with possible evidentiary value.
The role of a cover-up in legal proceedings
Courts can consider a police cover-up in legal proceedings, especially when it relates to the admissibility of evidence obtained unlawfully. In Fletcher v Knight, the court examined whether a police officer’s attempt to conceal the unlawful examination of an electronic device should impact the admissibility of the evidence.
The court found that the cover-up was a significant factor, as it demonstrated an inappropriate attitude towards the rule of law and heightened the need to deter future contraventions. This aligns with the principle that the public interest in excluding evidence obtained through impropriety extends to preventing similar misconduct in other cases.
The court emphasized that a cover-up could exacerbate the original illegality, thereby influencing the balance of desirability under section 138 of the Evidence Act 2011 (ACT).
Requisite belief and the ‘Shopping List’ of three-condition warrants
Police officers across Australia will frequently apply for and rely on warrants issued under Commonwealth law, namely Division 2 of the Crimes Act 1900 (Cth). Those warrants are commonly referred to as three-condition warrants which authorise the seizure of items which satisfy each of the three-conditions set out in the warrant.
The decision provides that those who rely on a three-condition warrant are required to form a requisite belief that the items to be seized will afford evidence of an offence. This belief must be based on reasonable grounds.
The warrant which was the subject of consideration in Fletcher v Knight included a broad list of items, often referred to as a ‘shopping list,’ which can complicate the execution process. The court observed that an executing officer must independently assess whether each item meets the criteria for seizure. This requirement ensures that the officer’s actions are not merely procedural but are grounded in a genuine belief that the items are evidentially relevant.
Following a helpful summary of various decisions, Baker J observed at [191]:
Further, where, as here, a three condition search warrant is broadly drafted to include a “shopping list” of “every conceivable type of thing that might be found” (Caratti [2017] at [66] – [67]), it may be that the validity of the search warrant depends upon the third condition as being read as to require that the executing officer to independently turn his or her mind to whether there are reasonable grounds for suspecting that an item will afford evidence as to the commission of the offence(s) specified in a search warrant before seizure of that item.
The case underscores the importance of this independent assessment, as failure to do so can lead to challenges regarding the legality of the seizure and the admissibility of the evidence obtained.
