John Fazio v R No. Sccrm-97-29 Judgment No. 6196 Number of Pages 13 Criminal Law (1997) 69 Sasr 54

[1997] SASC 6196

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Criminal law - criminal law and procedure - search of persons - evidence of expert - appellant convicted of possessing cocaine for sale, complaint on appeal regarding admission of evidence of personal search that revealed drugs, argument that test for search under s52 of the Controlled Substances Act could not be met, found that powers to search under s62Summary Offences Act and s52 of the Controlled Substances Act were available to the police investigating possession of drugs, more stringent test in Controlled Substances Act met in any case, evidence of search properly admitted.Complaint that evidence of detective on methods of drug use, dealing, sales and other drug-related matters inadmissible as hearsay - evidence gathered through witness' previous experience with telephone monitoring admissible - evidence of price of cocaine admissible as expert evidence - appeal dismissed. Controlled Substances Act 1984s32, s52; Summary Offences Act 1953s68; Controlled Substances (Declared Drugs of Dependence) Regulations 1985 Reg 5, Sch 2, referred to. Gibson v Ellis (1992) 59 SASR 420; Anderson v R (1992) 60 SASR 90; R v Barker (1988) 34 A Crim R 141; PQ v Australian Red Cross Society (1992) 1 VR 19; R v Bonython
(1984) 38 SASR 45; R v Marinovich (1990) 46 A Crim R 282, applied. Butler v Attorney-General (Victoria) (1961) 106 CLR 268; Seward v "Vera Cruz" (1884) 10 App Cas 59; R v Industrial Commission of South Australia; ex parte The Fire Brigades Board (1981) 26 SASR 580; R v Reed (1993) 65 A Crim R 434; R v Pickett and Post (1986) 130 LSJS 181; Weal v Bottom (1966) 40 ALJR 436; Clark v Ryan (1960) 103 CLR 486, discussed.

ADELAIDE, 20 May 1997 (hearing), 13 June 1997 (decision)

#DATE 13:6:1997

Representation

Appellant:

Counsel: Mr D Edwardson

Solicitors: Condello & Co

Respondent:

Counsel: Ms W Abraham

Solicitors: DPP (SA)

Order: appeal dismissed.

DOYLE CJ

1. For the reasons given by Bleby J, with which reasons I agree, the appeal should be dismissed.

LANDER J

2. I agree with the reasons of Bleby J. In Gibson v Ellis (1992) 59 SASR
420 King CJ (with whom Prior J agreed) decided that s52 of the ControlledSubstances Act was an additional source of power to search to that given by s68 of the Summary Offences Act. He also decided that s58(7) qualified the power to search given by s68. Notwithstanding that King CJ and Debelle J both said that s52 would be invoked if a police officer "suspected on reasonable grounds" rather than believed on reasonable grounds, there is no reason to doubt the correctness of the conclusions in Gibson v Ellis.

3. I agree that the appeal should be dismissed.

BLEBY J

4. On 16 January 1997 the appellant was found guilty by a jury and convicted of possessing cocaine for sale contrary to s32(1)(e) of the Controlled Substances Act 1984. He now appeals against his conviction on two grounds, other grounds having been abandoned at the hearing of the appeal. The first ground concerns the lawfulness, and hence the admissibility of evidence, of a personal search of the appellant resulting in the production of a quantity of cocaine immediately prior to his arrest. The second concerns the admissibility of evidence of a police officer as to the value of the cocaine in question. The grounds abandoned concerned the admissibility of conversations between the appellant and Detective Maynard after the search.

The Search of the Appellant

5. At about 8.15pm on Wednesday, 27 March 1996 Detective Senior Constables Maynard and Duval attended a house in Stanley Street, North Adelaide. They were in possession of search warrants issued pursuant to s52 of the ControlledSubstances Act 1984. They had reason to suspect that the occupiers of the house were dealing in Ecstasy and other designer drugs and that they were holding drugs on the premises. Prior to their visit to the premises they had no reason to suspect that the appellant was associated with either of the occupants or with the premises or with any illegal activity being carried on at the premises. There was no suggestion that he was otherwise known to the police.

6. Before entering the house the detectives were aware of a number of people in the lounge room which they eventually entered. Having entered and identified themselves Detective Maynard advised the five persons present that a search would be conducted of each room, and he invited those within the room to indicate any drugs which they may have had in their possession or in their room. Maynard first had a conversation with one of the males in the room (not believed to be one of the occupiers of the house), and he produced from another room nine tablets which he claimed to be Ecstasy. Maynard then spoke to a female in the room, believed to be one of the occupiers of the house, and she identified in her room a small amount of cannabis.

7. Maynard then approached the appellant. I set out his evidence-in-chief as to what then happened: "I then approached a male person now known to me as the accused, John FAZIO who was seated on a three seater lounge. This male appeared to be nervous and stated that he did not live at the premises and wished to leave. I then had a conversation with the accused in the presence of Detective DUVAL and the other persons who were present in the room.

1. What is your name.

H. John FAZIO.

2. John, have you got any drugs on you.

H. No.

The accused was nervous and his speech was shaky and I observed that the accused was beginning to sweat.

3. John could you just turn out your pockets.

H. Why.

4. Because I believe you are in possession of drugs.

H. I don't think you can make me do that.

5. John, I am going to search you, do you wish to show me what you have on you.

H. I don't think you can search me.

6. I can and if you do not allow me to search you I warn you that you will be arrested for hindering Police under the Controlled Substances Act.

H. I know my rights and you can't search me.

7. John I will arrest you, now do you wish to be searched or do you wish to refuse, in which case you will be arrested for hindering me in the execution of my duty.

H. No you can search me." 8. The search then took place, and the appellant produced from his clothing two packages containing cocaine. He was then arrested on the charge for which he eventually stood trial.

9. Section 52 of the Controlled Substances Act 1984 relevantly reads as follows: "(5) An officer of police, special magistrate or justice shall not issue a warrant [to search premises] 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.

(6) Subject to subsection (7), an authorised officer who is a member of the police force may search any person whom he believes on reasonable grounds has in his possession any substance or equipment in contravention of this Act.

(7) Before a person is searched pursuant to subsection (6), he shall, if he so requires, be taken before a justice....

(9) Where an authorized officer who is a member of the police force suspects on reasonable grounds that a substance that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, he may -

(a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and

(b) detain and search the vehicle, vessel or aircraft; and

(c) seize and remove from the vehicle, vessel or aircraft anything that he has reasonable cause to suspect affords evidence of an offence against this Act.

(10) Nothing in this section derogates from the power of a member of the police force to do anything pursuant to a general search warrant issued to him under the Police Offences Act, 1953." 10. The Police Offences Act 1953 is now known as the Summary Offences Act 1953.

11. It was claimed that, before lawfully searching the appellant, Constable Maynard was required by subsection (6) to have an actual belief based on reasonable grounds that the appellant was in possession of drugs. It was said that in the circumstances that test could not have been met. It was also pointed out that the requirement of a belief on reasonable grounds that the appellant possessed drugs was different from the pre-requisites for obtaining a search warrant under sub-s(5) (Reasonable grounds for suspecting that an offence is being committed) or for stopping and detaining a vehicle or aircraft (Suspicion on reasonable grounds that a controlled substance is in the vehicle or aircraft). Parliament, it was said, had deliberately differentiated in favour of a more stringent test in the case of searching individuals.

12. Before discussing the application of that test, I should mention one other question which arose during the course of argument on the appeal. That was whether a less stringent test provided for under s68 of the SummaryOffences Act 1953 was available. That section reads as follows: "68. (1) A member of the police force may do any or all of the following things, namely, stop, search and detain -

(a) a vehicle or vessel in or upon which there is reasonable cause to suspect that -

(i) there are stolen goods; or

(ii) there is an object, possession of which constitutes an offence; or

(iii) there is evidence of the commission of an indictable offence;

(b) a person who is reasonably suspected of having, on or about his or her person -

(i) stolen goods; or

(ii) an object, possession of which constitutes an offence; or

(iii) evidence of the commission of an indictable offence.

(2) In this section -

'stolen goods' includes goods obtained by the commission of an offence." 13. There seems little doubt that either Act may be used for the purpose of search warrants: s52(10) Controlled Substances Act 1984. However that subsection does not apply to other searches.

14. The interaction between these two sections was discussed by this Court in Gibson v Ellis (1992) 59 SASR 420. In that case, a police constable who believed that the appellant was disqualified from holding a driver's licence, waved his car to a stop. The police officer noticed a spoon with a filter tip from a cigarette in it on the front seat of the car. He was aware from his police experience that that was a method of taking heroin, and he knew that the appellant was a heroin user. The appellant was the only occupant of the car. The police officer told the appellant that he was going to search the car and he was going to conduct a personal search of the appellant, whereupon the appellant produced a syringe and a large quantity of cash. That case decided that the provisions of s68 of the Summary Offences Act 1953 was not limited to searches and seizures of stolen goods, and that that section and s52 of the Controlled Substances Act 1984 were not mutually exclusive. Subject to the principle expressed in Butler v Attorney-General (Victoria) (1961) 106 CLR
268, the two provisions could work together. The principle expressed by Fullagar J in Butler v Attorney-General is as follows (at p276):

"...where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant." 15. Hence, it was decided in Gibson v Ellis that the search of a vehicle, where the officer suspected on reasonable grounds that there was in the vehicle a substance that would afford evidence of an offence against the Controlled Substances Act 1984, was justified under either Act. It is to be noted that the conditions justifying search of a vehicle, although not in identical language, are similar in effect in the two sections.

16. In relation to personal search, the language of s52 (6) of the Controlled Substances Act 1984 differs materially from that of s68(1)(b) of the Summary Offences Act 1953. Notwithstanding that difference, Gibson v Ellis must be taken to have decided that either section will justify a personal search where drugs may be the only object of the search. King CJ said at p422:

"The police officer possessed ample power to search the car and the appellant. There is the general power in s68 of the Summary Offences Act." 17. He then set out the text of s68, and of that section said, at p423:

"If the police officer suspects with reasonable cause that the drug or equipment is in the possession of a person, he is authorised to search that person." 18. He then said:

"A further source of Constable Wilson's power to search the appellant and his vehicle is s52 of the Controlled Substances Act. Constable Wilson was an authorised officer for the purpose of that section. He suspected on reasonable grounds that a substance that would afford evidence of an offence against the Controlled Substances Act was in the motorcar and he was therefore authorised by subs (9) to search the car. He also suspected on reasonable grounds that the appellant was in possession of such a substance and he was therefore authorised by subs (6) to search the appellant." 19. It will be noted that, although the Chief Justice misstated the requirements of subs (6) (requiring belief on reasonable grounds), and stated those requirements in similar terms to those of s68(1)(b) of the Summary Offences Act 1953 (reasonable suspicion), he nevertheless held that either section would justify the search. He went on to hold that s52(7) of the Controlled Substances Act 1984 (right to be taken before a justice) would apply to the exercise of powers under s68(1)(b) of the Summary Offences Act 1953. The Chief Justice made no reference to Butler v Attorney-General (supra).

20. Prior J said (at p425): "I agree with the Chief Justice that s68 of the Summary Offences Act 1953 conferred a power to search the appellant and his car....

I agree with Justice Cox that s52 of the Controlled Substances Act 1984 is sufficient and particular authority for Wilson's actions in this case. The existence of a specific power with respect to drugs in s52 does not oust the application of the general power in s68. Both provisions operate, one being read as subject to the other: Butler v Attorney General (Vic) (1961) 106 CLR
268 at 276. The appellant therefore had a right conferred upon him by subs 7 of s52." 21. Prior J did not advert to the precise terms of, or differences between, the two sections, but he too held that s68 of the Summary OffencesAct 1953 conferred a power to search both the appellant and his car. The application of the principles in Butler v Attorney General seemed to be directed principally to the operation of s52(7) of the Controlled SubstancesAct 1984.

22. Debelle J said (at pp425-426):

"The apparent inconsistency between s68(1)(b) of the Summary Offences Act 1953 and s52(6) of the Controlled Substances Act 1984 can be reconciled if the two provisions operate together in the manner noted by Fullagar J in Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276. The general provisions of the Summary Offences Act must be read as being subject to the particular provisions of the Controlled Substances Act in relation to the power of a police officer to search a person whom he believes on reasonable grounds has in his possession any substance or equipment in contravention of the Controlled Substances Act. For the reasons expressed by the Chief Justice, the police officer had ample power under s68 of the Summary Offences Act to search the appellant's car. Once the police officer saw the spoon and filter tip and decided that he wished to search the appellant, subs(6) of s52 of the Controlled Substances Act came into operation. He could only search the appellant if all of the conditions of s52(6) were satisfied. In my opinion, they were. The police officer suspected on reasonable grounds that the appellant was in possession of a substance or equipment in contravention of the Act and was therefore authorised by subs(6) to search the appellant. But that power of search was subject to the provisions of subs(7)." 23. Debelle J correctly stated the effect of s52(6) of the Controlled Substances Act 1984, and held that that set the conditions for the personal search of the appellant, to the implied exclusion of s68(1)(b) of the Summary Offences Act1953. Having said so, however, he found that the police officer "suspected on reasonable grounds" that the appellant was in possession of a substance referred to in the Controlled Substances Act 1984, thereby applying the test under s68(1)(b) of the Summary Offences Act 1953.

24. It was argued before us that the apparent misstatements by members of the Court of the test applicable to s52(6) of the Controlled Substances Act1984 calls in question the validity of the conclusion that s68(1)(b) of the Summary Offences Act 1953 justifies a personal search for drugs. Notwithstanding some apparent confusion, this Court should hesitate to differ from what seems to have been plainly decided in that case. It may be said that the application of the principle in Butler v Attorney-General demands that the more stringent requirements of s52(6) be applied. However, the dominant presumption to which Butler v Attorney-General refers is that Parliament intended that both Acts should operate. It does not say that whenever the two Acts touch the same subject matter either of the maxims referred to by Fullagar J must necessarily be applied. In any event, the maxim generalia specialibus non derogant cannot apply here because the special Act relating to drugs is later in time than the general Act. (The equivalent section in the Narcotic and Psychotropic Drugs Act 1934 (section 11), the predecessor to the Controlled Substances Act 1984 was in a different form and had quite different requirements.) The classic statement of the operation of that maxim is to be found in the speech of the Earl of Selborne LC in Seward v "Vera Cruz" (1884) 10 App Cas 59 at 68:

"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." 25. As this Court said in R v Industrial Commission of South Australia; ex parte The Fire Brigades Board
(1981) 26 SASR 580 at 582, such maxims are canons of construction, to be used by courts as instruments for the ascertainment of the true intention of the legislature as expressed in the statute. The primary presumption is, however, that Parliament did not intend to contradict itself. That presumption can be given effect in relation to this legislation without implying any repeal of the earlier general Act if, as I believe they should, the differing criteria in the two subsections are treated as being descriptive of classes of persons who may be searched. The classes to some extent overlap, but are not mutually exclusive. That, I believe, is the effect of what the Court decided in Gibson v Ellis. By contrast, s52(7) of the Controlled Substances Act 1984 provides for a possible condition precedent to the conduct of the search, and must be observed, where required, in the case of a search for drugs, even where the class of person searched is described by s68 of the Summary Offences Act 1953.

26. That this interpretation reflects the intention of Parliament is further supported when applied to a number of practical situations which may arise. Can it be thought that Parliament intended that where a police officer suspects the possession of both drugs and stolen property that the search cannot be conducted unless he holds a reasonable belief rather than a reasonable suspicion? Can he then search only for stolen property because he does not have the requisite state of belief concerning possession of drugs? I think not. Other situations can no doubt be conceived where strange results would obtain if the appellant's argument were correct. In my opinion, Parliament intended, as the Court decided in Gibson v Ellis, that either section could be used in respect of personal searches concerning drugs.

27. In the result, it was open to Detective Maynard to conduct a search because the appellant was a person either who was reasonably suspected of having or who was believed on reasonable grounds to have drugs in his possession. However, even if the higher standard were the only one applicable, he deposed to having that state of belief and, in my opinion, he held that belief on reasonable grounds.

28. At the time of going to the premises he already had reasonable grounds for suspecting that an offence had been, was being, or was about to be committed on the premises. He had sworn, in support of the issue of the warrant, to his belief that the two persons who occupied the house were dealing in Ecstasy and other designer drugs and that they held drugs on the premises. Before entering the house he observed that there were more than two people in the lounge room. Before approaching the appellant, and as a result of conversations with two other people in the lounge room, one of whom was not believed to be an occupier of the house, both had produced certain quantities of drugs to him. When he approached the appellant, the appellant appeared to be nervous and expressed a wish to leave. When asked if he had any drugs, the appellant was "very nervous" and his speech was shaky and he was beginning to sweat. At that point everything he had observed confirmed his earlier suspicion that the occupiers of the house were dealing in drugs. The fact that other persons were there might well give rise to a reasonable suspicion that they were there for the purpose of acquiring or disposing of drugs. The behaviour of the appellant prior to the time when Detective Maynard expressed his belief that the appellant was in possession of drugs was sufficient, against that background, to justify a reasonable belief on the part of Maynard that the appellant had some drugs in his possession, and hence to justify the search. The justification for the search was a fortiori if the requirement was that the appellant only be reasonably suspected of having drugs on or about his person.

29. In my opinion, evidence of the search was properly admitted.

Evidence of Value

30. The appellant was charged with possessing cocaine for sale. The substance found in possession of the appellant weighed 48.35 grams comprising, on analysis, 35.4 grams pure cocaine. Being in possession of that quantity, the appellant was deemed to have had the drug in possession for the purpose of sale or supply to another person (Controlled Substances Act 1984 s32(3)) and Controlled Substances (Declared Drugs of Dependence) Regulations 1985, Reg 5, Schedule 2). The onus of proof that the appellant had the substance in possession for his own use or for a use other than for the purpose of sale was on the appellant: R v Reed (1993) 65 A Crim R 434; R v Pickett and Post (1986) 130 LSJS 181. Among other evidence led by the Crown to rebut the suggestion of possession for purposes other than sale or supply was evidence of the use, distribution and value of cocaine in various forms. That evidence was led from Detective Brown over the objection of the appellant and after cross-examination of Detective Brown on the voir dire. It was said that he was not qualified to give the evidence, and accordingly it should not have been admitted. The evidence led concerned the origin of cocaine and its extraction from the coca plant, a description of the drug in its pure form, the fact that it was often "cut" or "stepped" with adulterants, such as glucose, baking powder or sugar. He described the most common methods of ingestion, the approximate street price of the drug and a description of items usually found in possession of persons dealing in drugs. The ground of appeal objected to the whole of his evidence, although on the hearing of the appeal argument was principally directed to the admissibility of the evidence of price.

31. On the voir dire it was established that Detective Brown was one of the longest serving members of the Drug Task Force. The incidence of cocaine detection in South Australia, compared with detection of other drugs, was very limited, and his knowledge of cocaine in general was limited compared with that relating to other drugs. He was, however, the most experienced officer in South Australia concerning cocaine. He kept abreast of published literature concerning the production and use of cocaine and had produced a manual (Exhibit P3) for use of the Task Force concerning the production and use of the drug. He had spent a period of six months as the case officer investigating one particular operation, during the course of which the Task Force had lawfully monitored approximately 500 telephone calls, a large majority of which pertained to the use and distribution of cocaine.

32. He had also completed a "drug investigators course" conducted by the South Australian Police Department, although that was prior to his commencing in the Drug Task Force, but he had kept abreast of other literature and publications, and maintained contact with other drug law enforcement agencies in Australia. From that he was able to say how the drug was used and how it was broken down and packaged for sale. That information was also relevant to pricing.

33. In expressing his estimate of the value of cocaine he relied on three sources. The first was a quarterly Digest of the Australian Bureau of Criminal Intelligence which lists drug street prices Australia-wide, with individual prices for particular States. That was comprised of information supplied by police authorities in each of the States. In the particular publication to which he referred there was only one figure recorded for South Australia in the quarter concerned.

34. Secondly, he relied on conversations he had had with other Drug Task Force officers who had spoken with informants who advised them of costings and prices. This was in the course of the same operation to which he had previously referred over the six month period.

35. The third source of information was from the telephone monitoring and his overhearing of conversations concerning the pricing of cocaine.

36. He had not undertaken or been involved in any controlled purchases of cocaine.

37. Based on his overall experience he said that one gram of cocaine in South Australia has a value of "approximately $250" on the street. He said that a quarter of an ounce would retail "anywhere between $1500 and $1700; up to an ounce which may sell for between $5000 and $6000". He estimated that a price of just short of two ounces in the market place would be "around $10,000".

38. To the extent that the information concerning sales in South Australia contained in the Australian Bureau of Criminal Intelligence Digest was relied on, it was, in the circumstances, merely self-serving and of little use. The only source of that information in the Digest for the period in question was the Task Force of which Detective Brown was the most senior member, and could only have come from the other sources on which he relied in giving his estimates in evidence. To rely on such material alone would be to elevate the stream above its source. However, Detective Brown did not say that he relied only on that information. The Digest contained other pricing information as well. However, that was plainly hearsay. The information obtained from other Task Force officers was also hearsay, and the only other information he had was that which he had obtained directly from telephone monitoring. These various sources of information require different consideration.

39. Evidence based on information from the telephone monitoring, insofar as Brown thereby witnessed actual sales, is not, strictly speaking, opinion evidence at all. Similar source material was treated as primary evidence by this Court in Anderson v R (1992) 60 SASR 90 per Olsson J at 102, King CJ agreeing, and per Mullighan J at 108. As was said by King CJ in R v Barker
(1988) 34 A Crim R 141 at 144, it is not correct to describe such evidence as opinion evidence, but as "evidence of facts, sometimes expressed in compendious form, which (he) had observed in the course of (his) experience as a police officer, particularly with the Drug Squad":

40. The High Court recognised in Weal v Bottom (1966) 40 ALJR 436 that evidence as to the likely behaviour of a vehicle, based on a course of actual and observed experience, is not so much opinion evidence of the type often given by experts, but evidence of that person's experience or observation which, given similar circumstances, he would expect to be repeated. Thus, evidence of value or sales based on this type of information will be admissible.

41. Evidence of price based on hearsay material, such as the Australian Bureau of Criminal Intelligence Digest and information obtained from other Task Force officers is also admissible. It is not, strictly speaking, opinion evidence, but is information outside the ordinary range of human experience, of a type to which persons who have the requisite degree of study or experience may depose. It is the type of evidence of which McGarvie J spoke in PQ v Australian Red Cross Society (1992) 1 VR 19 at 34. He was there dealing specifically with the use that may be made of information in authoritative scientific publications, of which he said: "By 'information in authoritative scientific publications' I mean information of the type which scientific experts of the relevant categories ordinarily treat as data on which they may rely in forming opinions and making decisions within the area of their expertise. Included in such data are facts and opinions stated in articles or reports in scientific publications or in statements by organisations, public authorities or persons regarded by such experts as having knowledge and expertise in the relevant area. Such data includes facts in tables or statistical material on which such experts ordinarily rely.

It is made clear in Borowski v. Quayle [1966] V.R. 382 that expert witnesses may not only base opinions they give in evidence on such data, but may give evidence of fact which is based on such data. Expert witnesses may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information in the sense that they rely for such data not on their own knowledge but on the knowledge of someone else: see R. v. Abadom [1983] 1 W.L.R. 126, at pp.129-32. The considerations which justify that principle are stated in the passages from Wigmore on Evidence on which Gowans J. relied in Borowski, at pp.386-8. See also R.W. Baker, The Hearsay Rule, p.165.

An expert witness, in relying on data in authoritative publications, is not confined to confirming or correcting a recollection of what is stated in the data. The witness may rely on the data without a previous knowledge of it. An example is the reliance that may be placed on tables and the like: see Borowski, at pp.387-8. The data relied on may be a statement of fact or opinion.

When an expert witness bases evidence on data in an authoritative scientific publication it is the evidence of the witness which is thus put before the court. The publication itself is not evidence of the truth of statements it makes as to data. If the witness refers to or quotes from an authoritative publication as correctly stating a fact, what is referred to or quoted is part of the testimony of the witness: Sussex Peerage Case (1844) 11 Cl. & Fin. 85, at pp.114-17; 8 E.R. 1034, at pp.1046-7; Collier v. Simpson
(1831) 5 C. & P. 73; 172 E.R. 883; Cocks v. Purday (1846) 2 Car. & Kir. 269; 175 E.R. 111; Concha v. Murrieta (1889) 40 Ch. D. 543, at p.554; Federal Commissioner of Taxation v. Hamersley Iron Pty. Ltd. (1980) 33 A.L.R. 251, at pp.273-4; Baker, The Hearsay Rule, p.164 and Gillies, The Law of Evidence in Australia, pp.354-5." 42. The nature and source of the information relied on will vary, of course, from one area of knowledge and expertise to another, but for the type of evidence given by Detective Brown, I see no reason why the source of information which he related, albeit in compendious form, should not include the Digest to which he referred and information obtained from other Task Force officers who had a responsibility to obtain such information.

43. As in the case of true opinion evidence, the giving of evidence of that type will have to relate to a subject matter not wholly within the knowledge and experience of ordinary persons; Clark v Ryan (1960) 103 CLR 486. The witness will also need to demonstrate that he or she possesses sufficient knowledge or experience in the subject upon which the evidence is given to render that evidence of assistance to the court. The witness must be shown to have the necessary qualifications either by study, experience or both: R v Bonython (1984) 38 SASR 45 at 46.

44. Although I have referred to information based on reports, whether written or oral, from others and information based on personal observations and experience, it is not necessary to isolate those two areas. The use of such material concerning pricing and methods of distribution of drugs is well-established. See R v Marinovich (1990) 46 A Crim R 282 where, in their joint judgment, Malcolm CJ and Kennedy J of the Western Australian Supreme Court said (at p301):

"In our opinion the evidence of police officers based on their accumulated experience combining personal observation with information received concerning characteristics, prices, packaging, terminology and availability of heroin by comparison with other illicit drugs was relevant and admissible. Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observation. Expert evidence about such matters necessarily involves some hearsay evidence. It would be quite artificial and place an unnecessary restraint on prosecution and police work to limit such evidence to those who had been involved in undercover work in the illicit drug market. With respect, for those reasons we are not prepared to follow R v Gardner [1980] Qd R 531. In the end it must be a matter of weight, but I do not consider that the mere fact that the experience relied upon includes both personal observation and experience, as well as information received through intelligence reports or from informants, means that an attempt has to be made to isolate the two areas of knowledge so as to establish the admissibility of evidence based on the one source and exclude evidence based on the other." 45. That approach was endorsed by all members of this Court in Anderson v R (1992) 60 SASR 90 per King CJ and Olsson J at 104 and Mullighan J at 108. As Mullighan J pointed out, however, the evidence must be carefully scrutinised and assessed for its reliability, but that does not render the evidence inadmissible. It may only go to weight. It is only admissibility that we are concerned about in this case.

46. Having established that the sources were appropriate to be relied on, the only other question is whether Detective Brown was sufficiently qualified to give the evidence in the sense described in R v Bonython (supra). In Anderson v R (supra) Detective Ford was permitted to give evidence as to typical value of varying quantities of cannabis. He had been a member of the Drug Task Force for just over three years. His relevant qualifications were described thus by Olsson J at ibid 96-97:

"He told the learned Chief Judge that, during that time, he had been in constant contact with drug enforcement agencies in Australia, had kept abreast of literature and publications circulated to the Drug Task Force, and had arrested, interviewed and reported numerous persons involved in drug offences, including cannabis. He said that, on three occasions, he had directly been involved in controlled buys of quantities of cannabis and had been present in the vicinity during a number of other controlled buys, which he had observed. He further said that he had spoken to a number of persons involved in the cannabis trade who were informants and had first-hand knowledge of street prices. He had also read literature compiled by the Australian Bureau of Criminal Intelligence in respect of modes of packaging and pricing of cannabis. (That Bureau is, in fact, an Australia-wide organisation which, inter alia, provides quarterly statistics of comparative prices for various types of drug dealings.) He confirmed that, prior to embarking upon his duties in the Drug Task Force, he had completed an appropriate drug investigators' course." 47. The principal difference in this case is that Detective Brown had had no experience of controlled buys of cocaine, and his experience in relation to that particular drug was significantly less than that of Detective Ford in relation to cannabis in Anderson. In determining the level of experience necessary, however, one must always bear in mind the nature of the evidence being given. In Anderson it was described as being in the nature of opinion evidence, although it does not involve the processes of an expert valuer valuing a particular commodity such as a price of land or a motor vehicle, where the background information obtained through study and experience needs to be applied to the many qualities and differing features of the commodity in question in order to arrive at an assessment of its value. In the case of land, for example, the process will involve an evaluation of the nature, quality, age and state of repair of any improvements on the land. In the case of a motor car it will include consideration of the age, mechanical condition, odometer reading and state of the bodywork. In such cases the valuer requires a wide range of experience of that one article or commodity before he can adequately assess and apply a value to the particular article or commodity in question. No such assessment or experience was required here. Brown was asked to give a range of values of a substance on the retail market in differing quantities. The extent of the experience necessary was of sales of similar quantities of the same substance. A person who shops regularly at a supermarket but who never actually buys sugar, but who nevertheless makes a practice of observing the price at which sugar is for sale in one kilogram bags, will be sufficiently qualified to give evidence of the retail price of one kilogram of sugar. Whilst cocaine is, fortunately, a less popular commodity than sugar, and sales will be fewer, and may perhaps fluctuate more widely and under less than uniform conditions, the principle is nevertheless the same. The fact that cocaine sales are experienced by relatively few, and may even be infrequent, does not render the process any less valid.

48. Therefore whilst his experience was limited, Detective Brown was operating in an area which required only limited experience. The bases on which he could be permitted to give the evidence were, in the circumstances of this case, acceptable bases. He was sufficiently qualified to give the evidence he did, and it was admissible.

49. The result is that, in my opinion, neither of the grounds of appeal that were argued succeed, and the appeal should be dismissed.