Gazepis v Police No. Scgrg-97-294 Judgment No. S6466

[1997] SASC 6466

GAZEPIS  v  POLICE

Full Court:  Doyle CJ, Lander and Bleby JJ

DOYLE CJ

Introduction

The appellant was convicted by a Magistrate of being in possession of personal property, namely money, amounting to $59,400, which was reasonably suspected of having been stolen or obtained by unlawful means.

The offence is constituted by s41 of the Summary Offences Act ("the SOA"). That section provides:

"41.(1)  A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means whatsoever, is guilty of an offence.

Penalty: Division 5 fine or division 5 imprisonment.

1. It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.

1. If personal property is proved to have been in the possession of a person, whether in a building or otherwise and whether the possession had been parted with before the hearing or not, it will, for the purposes of this section, be taken to have been in the possession of that person."

Three issues are raised on appeal.  First, did the Magistrate err in finding that the police officer in question reasonably suspected that the money had been unlawfully obtained?  The argument on this point was that the suspicion had to relate to the very banknotes found by the police.  It was not enough to prove a reasonable suspicion relating to the obtaining of property or money into which the banknotes in question had been converted. It was argued that the Magistrate’s finding in this respect was not sufficient for the defendant to be convicted.  The second point on appeal was whether the evidence of the finding of the money should have been excluded.  The submission was that the search warrant, in the exercise of which the police officer in question entered and searched certain premises, was issued invalidly because the issuing officer could not have had the requisite belief for the issue of the warrant.  The third issue on appeal was whether the conviction should be set aside because of an irregularity in the course of the trial.  It was submitted that there had been an irregularity which denied the defendant a fair trial.  What happened was that the Magistrate ordered or requested the defendant to leave the courtroom briefly.  The Magistrate then reprimanded counsel for the defendant for objecting to a question in cross-examination, in a manner capable of conveying to the defendant the answer that he should give to the question.

Facts

In the course of investigating an alleged assault Detective Modra and Detective Wilkinson went to a house at Craig Street, Richmond.  There they spoke to John Pappas.  They later learned that his real name was John Papapaschalis.  In the house the police found equipment for growing cannabis hydroponically.  Their evidence was that the house was not set up for a person to live there permanently, and appeared to be set up to grow cannabis.

Mr Papapaschalis was arrested and charged with possessing cannabis for sale.  He was given an infringement notice in relation to the cultivation of cannabis plants.

At the house the police found a Telecom account for a mobile phone in the name of John Papapaschalis of 377 Anzac Highway, Camden Park.  As a result of conversations with Mr Papapaschalis, Detective Modra decided to make further enquiries about the premises at that address.

The police ascertained that the electricity consumption at that address was "high", and gave evidence that this was typical of premises used for hydroponic cultivation.  The police inspected the house, and found that it was closely secured, with window shutters and locks.  In this respect it was similar to the house at Craig Street, Richmond.

Detective Modra gave evidence that he suspected that the house was being used for the cultivation of cannabis hydroponically, or for the storage of cannabis. Application was made by Detective Wilkinson, on his own behalf and on behalf of Detective Modra and others, for search warrants under the Controlled Substances Act. A written application was completed. Section 52(5) of the Controlled Substances Act provides as follows:

"52(5)  An officer of police, special magistrate or justice shall not issue a warrant under subsection (4) unless he is satisfied, on information given upon oath—

(a)     that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and

(b)     that a warrant is reasonably required in the circumstances."

It was therefore necessary, before the warrant could be issued, for the issuer of the warrant to have reasonable grounds to suspect that an offence against the Act had been, was being, or was about to be committed at the house at Anzac Highway.

The written information to support the application for a warrant referred to the finding of cannabis leaf, and equipment for the hydroponic cultivation of cannabis, at Craig Street, Richmond.  It referred to the telephone account linking Mr Papapaschalis to the Anzac Highway address.  It said that "indications" were that the Craig Street premises were rented for the purpose of producing cannabis, and that Mr Papapaschalis was a "crop minder", possibly involved in a syndicate involved in growing cannabis at different premises in lots of ten plants or less to avoid penalties attracted by larger crops.  Reference was made to the high electricity consumption at the Anzac Highway address, and to that being typical of hydroponic cultivations.  Reference was made to some other matters possibly linking Mr Papapaschalis to the Anzac Highway address.

The actual application was made by Detective Wilkinson.  He said that the Inspector to whom the application was made asked "additional questions", but he was not asked to and did not elaborate on those questions.  He said he believed that Mr Papapaschalis or others were involved in growing cannabis or involved in the drug industry at the Anzac Highway address.

The warrant was issued.

The police then went to the house and forced an entry.  They relied upon the warrants that they had obtained.  Hidden under a dressing table they found two plastic bags.  One contained banknotes to the value of $33,000, the other contained banknotes to the value of $26,400.  The notes were mostly high denomination notes.  On appeal, there was no dispute that the money was in the defendant’s possession.

The police seized the money on the grounds that they reasonably suspected it of having been obtained by unlawful means.  Detective Modra said in evidence:

"... I believe (sic) that that money came as a result of selling of the cannabis crop which had been grown at 38 Craig Street, Richmond and which had been harvested prior to our arrival."

He referred to various circumstances which, in his opinion, were a cause for suspicion about the money.  They included the manner in which it was hidden, the amount of money, the predominance of high denomination notes, the way the money was packaged, the way in which the house was secured and the finding of firearms in the house.  Relevantly to the ground argued on appeal, he also said:

"Also, in searching we found a number of documents relating to the National Bank.  None of those documents revealed where the money had come from nor why the money hadn’t been placed into an account.  There was no paper trail at all to suggest where this money had come from."

At the close of the prosecution case it was submitted that the search warrant was issued unlawfully and that there was insufficient evidence to establish a reasonable suspicion in relation to the money and in relation to other items found.  The Magistrate rejected that submission, and the defendant gave evidence.

During the defendant’s cross-examination, questions were put to him about reasons he had given for borrowing money from a bank.  The transcript indicates that counsel for the defendant (who was not counsel on the appeal) interjected during or immediately after an answer from the defendant, and interjected in a manner that would have reminded the defendant of his earlier evidence on the point in question.  The prosecutor and counsel for the defence then began to argue about that earlier evidence.

The Magistrate asked the defendant to leave the court.  In his judgment the Magistrate says that this was not the first time that counsel for the defendant had interjected in this manner.  The transcript records that the Magistrate rebuked counsel for interjecting in this manner.  After some brief discussion of the matter, the court adjourned for a short time while counsel for the defendant located some documents that were relevant to the subject matter of the interjection.  The hearing then resumed with the defendant back in the witness box.

A little later there was a similar incident.  The Magistrate again rebuked defence counsel, but this time in the presence of the defendant.  The Magistrate said:

"In future your client is going out of the courtroom every time you have an objection to be raised.  I am not satisfied with the way you are doing it."

A little later he said:

"... and to be perfectly honest you cannot continue to answer questions for your client.  I know that that may also be unintentional but it is nonetheless going to have a devastating effect upon this hearing."

The cross-examination of the defendant thereafter was lengthy, but there appear to be no further similar incidents.

Ground One

In Grant v The Queen (1981) 147 CLR 503 the High Court considered s40 of the Summary Offences Act (NSW), which is similar to s41 of the SOA. However, there are some significant differences between the two sections. In particular, it appears that under the New South Wales section it is for the Court at the time of trial to determine whether it is satisfied that the property may reasonably be suspected of being stolen or unlawfully obtained: McGee v McKeever (1994) 71 ACrimR 586. Under the SOA what falls for consideration is the suspicion entertained by the police officer, being a suspicion held at the time the goods were found in the possession of the accused or at some subsequent time: Baldwin v Samuels (1973) 6 SASR 144. However, for present purposes those differences can be put to one side.

In Grant v The Queen (supra) a majority of the Court said (at 508):

"The word ‘thing’ in the section is a reference to the same physical object throughout, and it is that object to which the reasonable suspicion of being stolen or otherwise unlawfully obtained must attach.  As Jordan C.J., speaking for the Full Court of the Supreme Court of New South Wales said In Aldridge v. Marks (1944) 44 SR (NSW), at p.71: ‘I think that the section is available only when there is a reasonable suspicion that there has been at least something unlawful in the obtaining of the very thing which the accused had in his custody."

In other words, the Court held that there is no scope for resorting to notions of following or tracing property.  The relevant suspicion must be a suspicion that attaches to the very thing in the possession of the accused, not to something from which it was derived or converted.

In the present case the submission was that there were no grounds upon which Detective Modra could reasonably have suspected that the particular banknotes found in the possession of the defendant had been unlawfully obtained through dealings with drugs.  It was further submitted that, in his judgment, the Magistrate had not made a finding that Detective Modra reasonably suspected the particular banknotes of having been obtained by unlawful means.

The Magistrate made the following finding with reference to the money found in the possession of the accused:

"The monies found was (sic) suspected of having been directly linked to the purpose to which the police were investigating, namely the growing and/or supply of cannabis on a professional basis."

It was submitted that this finding is, on its face, no more than a finding that the banknotes were "directly linked" to the growing or supply of cannabis, and that did not rule out the possibility that the banknotes found were not the very banknotes handed over as a result of the sale of cannabis or in return for growing cannabis.

There is some force in this submission.  However, in fairness to the Magistrate, it needs to be said that this particular point does not appear to have been taken at the trial.  At the trial the submission appears to have focussed on whether there were reasonable grounds for a suspicion that the money had been unlawfully obtained.  The submission does not appear to have focussed upon the attaching of the suspicion to the very banknotes found in the house.  I have examined the transcript of the oral submissions made by the prosecutor, and the written and oral submissions made by counsel for the defence, before the Magistrate.  There is no reference to Grant v The Queen (supra) in either of them, or to the particular point now taken.  There is no transcript of the submission made at the conclusion of the prosecution case, but there is nothing in the cross-examination of the prosecution witnesses to suggest this particular point was then taken.

None of that detracts from the force of the submission now made, but it is necessary to consider the Magistrate’s finding in the light of the way in which the issues were presented to him.

I have already set out two short extracts from the evidence of Detective Modra, relating to the money.  In the first he said that he thought that the money was the result of the selling of cannabis grown at the Richmond address.  In the second he said that the bank documents gave no indication of the money having been placed into a bank account.  There was no "paper trail" relating to the money.

I consider that that evidence is capable of supporting a conclusion that Detective Modra had a reasonable suspicion relating to the particular money found.  There was no cross-examination of him directed to this specific point, and I consider that his evidence relating to the absence of a "paper trail" is of particular significance in this context.  I consider that the Magistrate’s finding that the money was suspected of being "directly linked" to the growing or supply of cannabis is also capable of being understood as a finding relating to the particular money found.

It was not necessary for Detective Modra’s suspicion to be entertained or to be established beyond reasonable doubt. All that was required was that, under the circumstances, the suspicion be a reasonable one: Tepper v Kelly (1988) 47 SASR 271. The suspicion that he entertained need not be the only suspicion that might be entertained under the circumstances: R v Chan (1992) 28 NSWLR 421 at 424E Mahoney JA, at 426F Hunt CJ at CL and at 440C Abadee J.

In short, I conclude that on the evidence before him it was open to the Magistrate to conclude that Detective Modra reasonably suspected that the particular banknotes found in the defendant’s possession had been unlawfully obtained, and I consider that the Magistrate’s finding, which is set out above, is to be taken as a finding to that effect, not withstanding that the finding is not as precise as it might have been.  The terms of the finding are explicable having regard to the manner in which the case was conducted.

Ground Two

I have already set out sub-section (5) of s52 of the Controlled Substances Act. For the search warrant used by Detective Modra and others to have been valid, it was necessary that the police officer who issued it be satisfied that there were reasonable grounds for suspecting that an offence against the Act had been, was being or was about to be committed.

The Magistrate found that there were reasonable grounds for such a suspicion.

He referred to the fact that the issuing officer, who was not called to give evidence, had been given information on oath that other police officers had reasonable grounds for suspecting an offence against the Controlled Substances Act. He referred to the fact that the police had evidence that cannabis was being "professionally grown" at the Richmond address, and that the house at Anzac Highway was connected to one of the persons involved.

I consider that it was open to the Magistrate to find that the issuing officer had reasonable grounds for the necessary suspicion, on the basis of the information contained in the written "warrant application" and on the basis of the evidence of Detective Wilkinson who made application for the warrant.

On the information contained in the "warrant application" one could reasonably suspect that the cultivation taking place at the Richmond address was a professional cultivation, and that Mr Papapaschalis was involved in minding that crop and other crops.  There were also reasonable grounds for making a link between the Richmond premises and the Anzac Highway premises, and, in the circumstances, for suspecting that the Anzac Highway premises might also be being used for the cultivation of cannabis.

In my opinion the case was a borderline one, but in my opinion it cannot be said that it was not open to the Magistrate to conclude that the issuing officer had the necessary suspicion on reasonable grounds.

Ground Three

I accept that the defendant was entitled to be present in court during his trial, if he so wished. I regard this right as a fundamental right, although I have been unable to find any authority on point, in relation to a proceedings before a Magistrate, other than the decision in O’Donnell v Dawe [1905] VLR 538. In that case the defendant was charged before Justices. While she was giving evidence, as part of the defence case, a question of law was raised. Counsel for the prosecutor asked that the defendant be ordered out of court during the argument. The defendant’s solicitor objected to this, but the Justices ordered her out of court and dealt with the argument in her absence. She was then brought back into court and the case proceeded. Hodges J held that the order committing the defendant should be quashed. He said that the defendant’s right to be present during the whole hearing of her case was fundamental to the fair administration of justice. It was not a case in which the defendant was in any way obstructing the business of the court.

On the other hand, in Thomas v R (No.2) [1960] WAR 129 the Court of Criminal Appeal of Western Australia took the view that the wrongful exclusion of an accused person from his trial did not inevitably lead to the conclusion that the trial had miscarried. The Court said (at 136):

"But we are not prepared to hold that every such breach, that is to say any absence of an accused person, by whatever mischance it may have occurred, for however short a time, and at whatever stage of the trial, must inevitably result in his subsequent conviction being quashed."

The Court indicated that the proper approach was to consider the circumstances and to consider whether by any possibility the accused’s defence could have been prejudiced or his chances of conviction increased.  The Court said that in the case before it, even if it was satisfied that the accused had been excluded, the proviso should be applied because the accused’s absence for a few minutes "could not have affected the result of the trial in the slightest."

As I have already said, I regard the right of the defendant to be present during his trial as a fundamental right.  I consider that in the present case that right was infringed.  I do not accept that it matters whether the Magistrate asked or required the defendant to leave the court.  I consider that a request by a Magistrate sitting in court would have the same effect as an order, and that in the present case it is not appropriate to draw any distinction along those lines.

I also have doubts about considering the consequences of a breach or infringement of this right, by reference to the effect of that breach upon the outcome of the trial. First of all, there are some errors in the conduct of a trial, or some irregularities, which are sufficient to vitiate a trial without reference to the strength of the prosecution case: see Wilde v The Queen (1988) 164 CLR 365. Secondly, in the nature of things the absence of a defendant from the courtroom is unlikely, in other than exceptional cases, to have an identifiable effect upon the outcome of the case. Routinely using the effect upon the outcome of the case as the criterion for determining the consequences of an infringement of that right, would lead to a substantial erosion of the right.

On the other hand, I have considerable sympathy for the view, expressed by the Court of Criminal Appeal of Western Australia in Thomas v R (No.2) (supra) that not every infringement of the right to be present should, as a matter of course, vitiate a trial.

In the present case the defendant’s absence from the court was a brief one.  What transpired in his absence was done, for what it is worth, in open court.  It was recorded in the transcript.  The defendant became aware of what was in the transcript before the final addresses.  The transcript of what was said during the defendant’s absence occupies just over one page.  During that absence the Magistrate reprimanded counsel for the defendant.  That is something that, in my opinion, should have been done in the presence of the defendant, if it were to be done.  The defendant was entitled to be informed of the reprimand, and of the grounds upon which it had been delivered, particularly as those grounds related to the manner in which the defendant’s own evidence was being dealt with.  It is also relevant to note that counsel for the defendant did not object to the defendant being required to leave the courtroom.  I am not sure, however, that counsel could be regarded as having waived the defendant’s right, unless it were clear that that matter was specifically adverted to.  More significant, however, is the fact that a few pages later in the transcript an almost identical incident occurred, and on this occasion the Magistrate administered an almost identical reprimand, and did so in the presence of the defendant.  The defendant was thus made aware of the concern that had been expressed by the Magistrate in his absence.  The defendant was made aware of the issue.

I consider that what happened was a clear irregularity in the course of the trial.  But, having regard to the circumstances just adverted to by me, I do not consider that it can be said that the defendant was denied a fair trial, which for present purposes means a trial in his presence if he chooses to be present.  The infringement upon his right to be present was, under the particular circumstances, sufficiently minor, and its effect (or potential effect) upon the defendant’s ability to exercise his rights was sufficiently minor, for me to conclude that the fairness of the trial was not affected.

The powers of this Court on hearing the appeal are to be found in s42(5) of the Magistrates Court Act. The power is expressed in a form which is quite common, and includes the power to "confirm, vary or quash the judgment subject to the appeal."

Such provisions in this State have been interpreted as not requiring or permitting the Court to allow an appeal, despite an error in the Court below, if the Court is satisfied that there has been no miscarriage of justice: see, for example, Newman v Byrne [1969] SASR 350 at 353 Mitchell J and O’Leary v Daire (1984) 13 ACrimR 404 at 416 White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.

In the present case I am satisfied that what happened could not have affected the decision reached by the Magistrate.  I am so satisfied because, as I have indicated, the defendant shortly after the incident in question became aware of the very concern that the Magistrate expressed while the defendant was out of the court.  The defendant was as well informed as he would have been had he been in court all of the time.

However, as I have already indicated, I accept that that approach does not appear adequate to vindicate the right involved here, or to deal with an error such as occurred here.  For the reasons that I have explained, an error involving an infringement upon an important right affecting the manner in which the Court proceeds may require a different approach.

On the other hand, such authority as I have found, does not support the view that an error affecting the manner in which the Court conducts a hearing necessarily vitiates the trial.  This matter was considered by the High Court in Wilde v The Queen (supra).  The Court was there considering the question of what errors were "so radical or fundamental that by their very nature they exclude the application of the proviso ..." (at 373).  The majority (Brennan J, Dawson J and Toohey J at 373) went on to say:

"There is no rigid formula to determine what constitutes such a radical or fundamental error.  It may go either to the form of the trial or the manner in which it was conducted ... [the cases] provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial ..."

I do not consider that, in appeals such as the present one where the proviso is not in terms applicable, the Court should adopt a rigid or technical approach to errors such as occurred here. I consider that the Court should make an assessment of the significance of the error that occurred. I am content to adopt the approach taken by the Full Court of the Supreme Court of Victoria in R v Kerr (No.2) [1951] VLR 239. I do so even though that was an appeal from a conviction by verdict of a jury, and so the proviso was applicable. In that case the Court had to consider the significance of the public having been wrongly excluded during part of the trial. The Court acknowledged (at 241) that the question for it

"... does not depend upon the effect which the departure in question has upon the verdict; but is rather whether there has been a serious departure from essential requirements of the law."

Having considered all the circumstances the Court said (at 243) that there had not been:

"   any such wrongful exclusion of the public from the trial as would constitute a serious irregularity or departure from the well-recognised principles of criminal procedure that the trial must be held in public."

There must remain an element of impression when the test is expressed that way.  However, I have explained why, in my opinion, the error can be considered as minor when it is considered in relation to its effect upon the rights of the defendant that are intended to be protected by the defendant’s right to be present at the trial.  For what it is worth, I would add that looking at the matter more generally, the infringement of his rights does not appear to me to have been a significant one.

In my opinion the trial was a fair trial, despite the irregularity that occurred.

It is for those reasons that I have come to the conclusion that, under the relevant statutory provision, the appeal should be dismissed, although I do so with some hesitation.

However, it is appropriate to make it clear that the procedure followed by the Magistrate was inappropriate and should not be adopted in other cases.  The point now under consideration was taken before the Magistrate, in the final addresses.  In his judgment the Magistrate said that he asked the defendant to leave the courtroom to avoid embarrassing counsel for the defendant.  In my opinion that was no justification for the course followed.  If the conduct of counsel requires a rebuke then, ordinarily, it should be administered in the presence of the defendant, because the fact of the rebuke may be a matter that the defendant regards as significant.  This is certainly so when the rebuke relates to the manner in which the case is being conducted.  It is not necessary on this occasion, nor appropriate, to deal with the procedure to be followed in relation to matters peripheral to the trial itself, such as the failure of counsel to attend court on time.

The Magistrate also referred to the fact that on occasions counsel in a matter would be asked by the trial Judge or trial Magistrate to discuss an aspect of the case in chambers.  While practices may vary from Judge to Judge, in my opinion, discussions in chambers about the course or conduct of a trial should be very much the exception.  The Court did not hear full submissions on this matter, and there are all sorts of situations that can arise.  However, I consider that it would be inappropriate to discuss in chambers a matter that bore upon the possible outcome of the trial.  In the present case the matter raised was such a matter, because the Magistrate was warning counsel for the defendant that his method of interjecting might prejudice the weight to be given to the evidence of the defendant.  Any such matter, if it has to be canvassed with counsel, should be dealt with in open court.  In my opinion, without wishing to lay down any categorical rule, only minor matters of an administrative sort are appropriate to be dealt with in chambers, and even then such occasions should be kept to a minimum.  The business of the court should be conducted in public.

Occasions will arise when the defendant’s presence in the courtroom will give rise to difficulties.  For example, an objection might be taken to a question put to a defendant giving evidence.  The submissions to the court in relation to the objection may be such that, were the defendant to be present while they were put, it could be suggested that the defendant’s later evidence was coloured by or adjusted to what the defendant heard during those submissions.  In such a case counsel for the defendant would usually ask that the defendant be permitted to leave the courtroom while submissions are put.  If counsel does not do so, the magistrate can raise with counsel the question of whether counsel wishes that the defendant be permitted to leave the court.  The absence of the defendant from the courtroom, at the request of the defendant’s counsel, does not give rise to any irregularity.  Perhaps that is what was intended here.  However, care must be taken to ensure that the defendant does consent, through the defendant’s counsel.

I have not attempted to deal with every situation that might arise in the course of a trial, and that might make it desirable that the defendant be temporarily out of the courtroom.  Other situations can be dealt with as and when they arise.

The defendant’s right to be present is an important right.  That right involves the defendant’s right to observe and hear all aspects of the conduct of the case against the defendant.  Dealing with matters while a defendant is excluded from the court, or dealing with them in chambers, is likely to give rise to an apprehension on the part of a defendant that matters of substance are being dealt with in the defendant’s absence, even when that is not so.  For that reason, quite apart from the defendant’s right to be present, discussions in the absence of a defendant should be exceptional and, as I have already indicated, if they are to occur should relate to nothing more than minor administrative matters.

Conclusion

For the reasons indicated I consider that the appeal should be dismissed.

LANDER J

I agree for the reasons given by the Chief Justice that this appeal ought to be dismissed.

BLEBY J

I also agree that the appeal should be dismissed.  I agree with the reasons of the Chief Justice.