McHugh v The Queen - [2022] SASCA 5

Supreme Court of South Australia
(Court of Appeal: Criminal)
MCHUGH v THE QUEEN
[2022] SASCA 5
Judgment of the Court of Appeal (ex tempore)
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)
14 December 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
This is an application for permission to appeal against conviction. The appellant was convicted on 16 June 2021 of one count of Trafficking in a Large Commercial Quantity of a Controlled Drug and three counts of Trafficking in a Controlled Drug. The trial judge admitted evidence obtained pursuant to a search warrant of the appellant’s home that was executed primarily on the strength of a Crime Stoppers report made approximately three months before the search.
The appellant relied on the ground that the trial judge erred in finding the search of the appellant’s home was lawful and in failing to exclude the evidence, obtained during the search, in the exercise of the public policy discretion.
Held, by the Court:
1. Application for permission to appeal dismissed.
2. The search of the appellant’s home was lawful.
Summary Offences Act 1953 (SA) s 67(4)(a)(iii), referred to.
Bunning v Cross (1978) 141 CLR 54, considered.

MCHUGH v THE QUEEN
[2022] SASCA 5
Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA

KOURAKIS (ex tempore): On 31 May 2018, police officers searched the applicant’s residential premises in suburban Warradale. They there found drugs referred to by their acronyms GBL, GHB and MDMA. The applicant was charged and convicted on three counts of trafficking in those drugs. At his trial the applicant sought an order excluding the evidence of the search on the grounds that Detective Redmond, who executed the search warrant pursuant to s 67(4)(a)(iii) of the Summary Offences Act, did not have the necessary reasonable suspicion to do so. The Judge found that Detective Redmond’s suspicion was reasonable and that in any event, he would not have excluded the evidence of the search in the exercise of his discretion. It is against that ruling that the applicant brings this application for permission to appeal.
The police officers determined to search the applicant’s premises primarily on the strength of a Crime Stoppers report made some months earlier on 15 February 2018. The Crime Stoppers report was made anonymously. It described the applicant’s Warradale premises and him personally in some detail and with a degree of specificity. The report went on to say that the applicant dealt in ice and liquid fantasy. It described the applicant as a drug dealer who moved large amounts of ice and liquid fantasy. It alleged that the applicant was part of a large syndicate and close to the cook. Cook is slang which refers to the manufacturer of the drugs. The report continued that the applicant kept everything inside his house.
On this appeal the applicant accepts that it may be reasonable for police to act on anonymous reports of the type made against him on 15 February 2018. His primary contention is that so much time had elapsed between 15 February and 31 May that it was no longer reasonable to act on that report and to execute the search warrant when the police officers did.
When Detective Redmond attended at the applicant’s home in Warradale he saw the defendant standing outside in a t-shirt and underpants notwithstanding the time of the year on which the search was conducted. Detective Redmond tried to speak with the applicant but found that the applicant was not able to respond rationally. Detective Redmond observed that the applicant was unsteady on his feet and that his mouth was full of dirt. Not surprisingly Detective Redmond formed the view that the applicant was severely drug affected.
Detective Redmond testified that he determined to search the premises, implicitly therefore, asserting that he had a reasonable suspicion, even before he attended and made those observations of the applicant. Nonetheless, he gave the evidence that the applicant’s appearance heightened his suspicion.
The Judge decided to put the evidence of Detective Redmond’s observations of the applicant to one side when considering the reasonableness of his suspicion and to act on the Crime Stoppers report only because Detective Redmond testified that he had already decided to search the applicant’s premises before he attended there. In doing so the Judge was unduly favourable, and by that I mean more favourable than the law allowed, to the applicant.
If the Crime Stoppers information did not support a reasonable suspicion and Detective Redmond had not made the observations that he did of the applicant outside his premises then it would follow that the search would have been unlawful for want of a reasonable suspicion. However, that is no reason to ignore the further information which came to Detective Redmond’s attention and heightened his suspicion before he executed the search. Nor is it any objection that Detective Redmond made those observations after entering into the front yard. Absent a locked gate, similar obstruction or sign forbidding entry, residents hold out an implied invitation and permission to anyone entering up to their front door for a legitimate or lawful purpose. Detective Redmond’s intention to execute the search warrant was a lawful purpose.
Limiting his consideration to the Crime Stoppers report, the Judge found that it provided a reasonable basis for Detective Redmond’s suspicion because:
(1)it identified the property and described it with particularity;
(2)it described the defendant with particularity;
(3)it described the particular drugs that were alleged to be trafficked by the defendant;
(4)it alleged that he trafficked large amounts of ice and liquid fantasy;
(5)it alleged that he was part of a large syndicate close to the cook;
(6)it alleged that the applicant kept everything relating to his activities inside the house.
The particularity of the descriptions given suggested that the informant had a degree of close knowledge of the applicant’s operations and in that sense gave his or her report some cogency. On the other hand, it can be accepted that if a deliberately false allegation were to be made it, too would be made with some particularity.
The primary importance of the particularity of the descriptions given is that the connection between the information and the applicant’s premises was neither speculative nor tenuous.
There was much debate below and on this appeal as to when information provided through a facility like Crime Stoppers becomes ‘stale’. It is not possible to answer this question in the abstract and divorced from the facts of each particular case. The reasonableness of a suspicion requires attention to the reasoning process by which it is formed. In this case, the Judge properly identified the critical importance of the allegation that the applicant’s involvement was in large amounts of the drugs, that he was part of a large syndicate and was close to the centre of that operation. Importantly, given that the warrant was executed on the applicant’s residence, the information was that he kept everything inside his home.
It is in the nature of large drug trafficking operations that they continue for some time, and often until detected and disrupted by police. The period of some months between the report and the search did not therefore detract at all from the cogency of the information in the circumstances of this case. The Judge’s finding was plainly correct and Detective Redmond’s suspicion was a reasonable one. The contrary proposition is simply not arguable. For that reason, I would dismiss the application for permission to appeal. It is unnecessary in those circumstances to consider the errors the applicant contended were made in the hypothetical exercise of the Bunning v Cross discretion.
The order of the court is:
1.Application for permission to appeal dismissed.
LOVELL JA: I agree with the reasons of the Chief Justice and the order he proposes. I just add the following remarks.
A suspicion that something exists is more than mere idle wondering whether it exists or not, but I accept that there must be a rational connection between the supporting material and the suspicion. Whether a reasonable suspicion attaches to the certain conduct or circumstances, is a factual question and the use of the expression, ‘reasonable cause’, imports an element of objectivity into that assessment. The test of reasonableness is to be judged by the court putting itself in the position of the officer, in this case Officer Redmond, with the knowledge of the officer and asking whether in the circumstances the suspicion was reasonably held. It must be genuinely held.
The requisite degree of suspicion must exist at the time of the search, that is at the time of the warrant being executed. I agree with the Chief Justice that it was incumbent on the trial Judge to have considered the extra information, that upon attendance, Redmond had observed the accused in the front yard of the address, partially dressed and in a drug-affected state. The accused was struggling to stand. The fact that the accused appeared to be in a drug-affected state, heightened Redmond’s suspicions that an offence had been committed within the premises. Due to the information provided, taken together with the observations of the accused, when Redmond executed his search warrant, he had reasonable cause to suspect.
DOYLE JA: I agree that the application for permission to appeal should be dismissed for the reasons given by the Chief Justice. I also agree with the additional reasons given by Justice Lovell.