George Benchik v R Nos. SCCRM 93/433 and SCCRM 93/434 Judgment No. 4436 Number of Pages 7 Criminal Law and Procedure Evidence

[1994] SASC 4436

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE ACJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - Possession of cannabis for sale and producing cannabis - no allegation in Information or in prosecution opening of joint possession with appellant's wife - direction by judge that joint possession with another sufficient to found charge - no unfairness arising out of course of trial.

Evidence - Search of house to discover firearm - discovery of cannabis in course of search - key to house obtained in consequence of unlawful apprehension for intoxication - trial judge's refusal to exclude evidence of discovery of cannabis upheld on appeal. Firearms Acts.32. Bunning v Cross
(1978) 141 CLR 54, applied.

HRNG ADELAIDE, 24 February 1994 #DATE 24:2:1994

Counsel for appellant:     Mr G F Barrett

Solicitors for appellant:    Dixon Gallasch Pty Ltd

Counsel for respondent:     Mr J J Doyle QC with
   Mr G J Parker

Solicitors for respondent: Director Of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 LEGOE ACJ This is an appeal against convictions by verdicts of a jury in the District Court for crimes of producing cannabis and possession of cannabis for sale.

2. The primary ground of appeal relied upon by Mr Barrett, who appeared for the appellant before us, was that the police evidence relating to the discovery of the cannabis ought to have been excluded in the exercise of the judge's discretion upon the ground that it had been obtained by illegal conduct on the part of the police.

3. In order to understand this ground, it is necessary to refer to the evidential background. On 31 July 1991, the appellant's brother, who resided in Melbourne, telephoned a police officer who was on duty at the Elizabeth police station. He told the police officer that he had received a call from his brother, who was drunk. He said that his brother had told him that his wife had left and gone to the house of a male friend. He told his brother that he was possessed of a gun and that he intended to kill his wife.

4. As a consequence of that call, police officers went to the appellant's home. They there found the appellant in the company of a taxi driver who had driven him to the house in his taxi. The appellant and the taxi driver were outside the house, but on the finding of the learned trial judge, were not on the street. The appellant was drunk. The police arrested him under the Public Intoxication Act and took him to the Elizabeth police station. They there removed his belongings, including a set of keys, which included the key to the house.

5. The learned trial judge held that the detention under the PublicIntoxication Act was illegal by virtue of the fact that the appellant was not in a public place when he was apprehended by the police.

6. The police, having obtained information, presumably from the appellant, as to where his wife was, went to the house of his wife's friend and interviewed her. She confirmed that the appellant had a gun in the house. The police told his wife that they intended to search the house and that unless she let them in, they would break into the house. The appellant's wife gave evidence before the learned judge that the police also made threats that they would call in the Welfare Department to investigate whether she should be allowed to keep her children, but the learned judge did not accept that evidence.

7. Following the appellant's brother's telephone call to the police station, a search had been run as to whether the appellant's firearm was registered, and it was ascertained that it was not. This information was conveyed to the police officers who were going to the appellant's house, by the police radio.

8. The police went back to the appellant's home. They had obtained the keys which had been taken from the appellant when he was at the Elizabeth police station. The appellant's wife let them into the house by using those keys. The police searched the house to locate any firearm. While searching the house, they discovered, growing in the appellant's premises, 41 cannabis seedlings. They also found 450 grams of cannabis packaged in 141 small plastic press seal money bags. There were also in excess of 1,600 empty press seal money bags. The harvested cannabis in the money bags was located in a concealed room in the appellant's house.

9. Objection was taken before the learned trial judge to the admission of the evidence of the finding of the cannabis on the ground that the search of the house was illegal and on the ground that, moreover, it was tainted with the illegality on the part of the police in arresting the appellant unlawfully and unlawfully making use of his keys.

10. The purpose of the police in searching the house was to locate the firearm.

11. Section 32 of the Firearms Act 1977 authorises the seizure of a firearm if a member of the Police Force suspects upon reasonable grounds, that the firearm is unregistered, or that a person who has possession of a firearm is not a fit and proper person to have possession of that firearm, or if the continued possession of the firearm by a person, would be likely to result in undue danger to life or property. Sub-section 3 authorises a member of the Police Force to break into, enter, and search any premises in which he suspects, on reasonable grounds, that there is a firearm liable to seizure under the section.

12. It is clear from the circumstances, that the police officers had reasonable grounds for each of those suspicions. They had information from the appellant's brother, and his wife, that there was a firearm on the premises. Their searches disclosed that there was no firearm registered in the appellant's name. They had received information from the appellant's brother that he was drunk, and had threatened to use the firearm to kill his wife.

13. In going to the premises, that call had been verified to the extent that the appellant was drunk, and when they spoke to his wife it was verified to the further extent of confirmation that there was a firearm in the house. In those circumstances, there were not only reasonable grounds for suspecting that the firearm was unregistered, but also reasonable grounds for suspecting that the appellant was not a fit and proper person to have possession of that firearm. There were also reasonable grounds for suspecting that his continued possession would be likely to result in undue danger to life.

14. It was argued before the learned trial judge, and it has been argued before us by Mr Barrett, that the police officers did not entertain the suspicion which is required by s.32. It is true that the police officers who searched the house and who gave evidence, gave somewhat differing accounts of their states of mind and their states of suspicion. All but one, however, was clear that they believed that the firearm was unregistered, and the one who was not clear about that, the officer-in-charge, was clear in his mind that he believed that the situation was dangerous.

15. I do not think there can be any doubt that the police officers did have one or more of the requisite suspicions, and that they were authorised by s.32 of the Firearms Act to enter the premises. That was the conclusion to which the learned trial judge came, and I think that he was correct.

16. His Honor found that the appellant's arrest was unlawful, and he considered that the use of the keys which were obtained from him was therefore also unlawful. He took the view, however, that those illegalities on the part of the police were not sufficiently connected with the obtaining of the evidence with respect to the cannabis, to lead him to exercise the discretion which he considered he had to exclude that evidence, and he declined to do so.

17. I think that the situation as it presented itself to the police has to be considered. There may have been an illegality in their apprehension of the appellant. I think it is unlikely that it was a deliberate illegality, but even if it were, I think that the situation does not greatly change.

18. They were in the position of being faced with the presence of a firearm in the house, and of having in their custody a man who was drunk, and who had threatened to use that firearm to kill his wife. It was clear that the duration of his detention would not be long. The provisions of the PublicIntoxication Act would ensure that. There was therefore a real danger that. when he was discharged, he might use the firearm in the way in which he had threatened to use it in his telephone conversation with his brother. Not only, therefore, was there lawful justification for the police to enter the premises to locate the firearm, but there was a degree of urgency about their doing so.

19. They were entitled to use the degree of force which was reasonably necessary to effect entry into the premises. But that would have involved breaking the security of the premises, and causing some damage. They had access to keys which would make that course unnecessary, and it was therefore to the advantage of the appellant for them to use those keys, rather than for them to cause damage to his home. The house was occupied not only by the appellant, but also by his wife, and his wife used the keys to let the police into the house.

20. The whole exercise was totally unrelated to the finding of cannabis. In those circumstances, even accepting that the apprehension of the appellant and the use of the keys was not legally warranted, I can find little in the way of public policy consideration, which would incline the court to exclude evidence of the finding of cannabis.

21. There was nothing in the police conduct which called for the censure of the court. Even if the original apprehension of the appellant was deliberately unlawful, it was obviously an act that was carried out for the purpose of protecting the appellant's wife against what the police apprehended was a danger to her. It should not be viewed as a grave infringement of the appellant's rights carried out for some ulterior purpose.

22. There is no suggestion that the police made use of their powers under the Public Intoxication Act or the Firearms Act, to gain access to the house for the purpose of investigating possible cannabis offences. The officers who went into the house knew nothing of the appellant's involvement in cannabis.

23. The exercise in which the learned trial judge was required to engage, was a balancing of the public interest in deterring police officers from engaging in illegal conduct on the one hand, against the public interest in ensuring that criminal conduct is detected and punished. In this case, the criminal conduct which was detected was totally unrelated to the illegality, and the illegality was not being used by the police as a means of gaining evidence of the cannabis offences. In those circumstances, I am unable to discern any consideration of public policy which would lead a court to exclude evidence of the commission of a criminal offence which was quite unrelated to the illegalities of which complaint was made.

24. Mr Barrett also argued that the police had mistreated the appellant's wife, and that that was a ground upon which the evidence should be excluded. The finding of the learned trial judge is against him on that point. His Honor found that the police sergeant did tell the appellant's wife that the police intended to search the house for firearms, and that if she did not co-operate in facilitating a search of the house, they would have to break in, and thereby damage the house. His Honor concluded it was a proper intimation from Sergeant Brett. I agree it was a very sensible thing for the sergeant to say. If the wife had her keys to the house available, it was sensible that she should be told that unless she used them to let the police in, they would have to break into the house, which they were lawfully entitled to do. As I already said, His Honor rejected the allegation of threats concerning the welfare department and the children. There is therefore no substance in that argument.

25. In my opinion, therefore, the learned judge was right to refuse to exclude the evidence of the finding of the cannabis.

26. Mr Barrett also argued that the learned judge was in error in directing the jury that the appellant could be found guilty of this crime, if it appeared that he was not in sole possession of the cannabis, but was in possession of it jointly with another, namely, his wife. That argument is based upon what is said to have been the course of the trial.

27. Originally both the appellant and his wife were charged. The appellant was charged with producing cannabis and possessing cannabis for sale, the charges upon which he went to trial. His wife was charged with participating in the production of cannabis. There was a hearing in the absence of the jury at the commencement of the trial on an application for a stay of the charges. It is unnecessary to trace the history of that hearing. It is sufficient to say that during the course of those proceedings, the prosecution entered a nolle prosequi with respect to the appellant's wife, and she was discharged. The trial then proceeded against the appellant only.

28. The second count in the information alleged that the appellant was in possession of the cannabis for sale. In the course of the address of counsel for the defence to the jury at the conclusion of the evidence, the appellant having elected not to give evidence, counsel argued to the jury that if they considered that the wife was in possession of the cannabis jointly with the appellant, the appellant must be found not guilty. In those circumstances, the learned judge raised with counsel whether he should direct the jury as to the legal consequences of joint possession, and after hearing argument, he decided to do so. He directed the jury correctly as to the law relating to the consequence of joint possession. I am unable to see any substance in this argument. The case against the appellant was that he was in possession of the cannabis. Even if it appeared to the jury that his wife was, or may have been, also involved in possession of the cannabis it would not operate to exonerate the appellant. It is not a defence to a charge of possession of cannabis for sale that some other person is in possession jointly with the accused of that cannabis.

29. I cannot see anything in the course of the trial which could have operated prejudicially to the appellant, or brought about a miscarriage of justice. The appellant was tried upon the charge of possession of cannabis for sale. The appellant's counsel put to the jury a quite spurious argument as a defence and in consequence the learned judge directed the jury correctly as to the effects of joint possession. In those circumstances I think that the argument based on the course of the trial must fail.

30. All the grounds of appeal relating to the conviction, therefore, in my opinion, should fail.

31. The appellant was sentenced to six months imprisonment on both counts. The learned judge did not fix a commencement date as he released the appellant on bail pending this appeal. Mr Barrett has argued that His Honor ought to have suspended the sentence. He argued that His Honor misapplied the judgment of the Full Court in R v Taddeo, a judgment in which the Court said that suspension is a quite inappropriate order to make in a case of possession for cannabis for sale committed against the background of substantial involvement in cannabis trading. Mr Barrett argued that there was no evidence of a substantial involvement of cannabis trading in this case.

32. Of course, it is not only a substantial background of cannabis trading which would justify an immediate custodial sentence for the crime of producing cannabis or possession of cannabis for sale. The circumstances here were quite serious. The appellant was producing cannabis. He had 450 grams of harvested cannabis packaged in no less than 141 bags. It was located in a concealed room. It is clear that there were preparations for the further packaging of cannabis because he had 1600 empty bags also available for that purpose. I think that that is sufficient evidence that the appellant's possession of this production and possession of this cannabis was for the purpose of a substantial trade in the prohibited substance. He was a user himself and so was his wife. It may well be that some of the cannabis which he was producing was used and would continue to be used by them but the circumstances clearly indicate that there was a substantial commercial element in his activities.

33. I don't think that the learned judge misapprehended the law. Nor do I think that he committed any error in relation to the sentencing process. It seems to me that the sentence which was imposed was a reasonable sentence and I would dismiss the appeal against conviction and also the appeal against sentence.

JUDGE2 BOLLEN J I agree.

JUDGE3 MULLIGHAN J I agree.