Police v MCLEOD - [2010] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MCLEOD
[2010] SASC 55
Judgment of The Honourable Justice Duggan
16 March 2010
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRESUMPTIONS - REGULARITY - OF JUDICIAL OR OFFICIAL ACTS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - DISMISSAL - GENERAL MATTERS
Prosecution appeal against dismissal of charge – respondent charged with possessing a piece of equipment for use in connection with the smoking of cannabis – respondent challenged the legality of the search of the respondent’s premises – respondent wished to cross-examine a police witness at hearing – police officer not present at Court – Magistrate summarily dismissed charge – whether Magistrate erred in dismissing charge.
HELD: appeal allowed – unclear whether witness could provide relevant evidence on an issue which the Court was required to investigate – Magistrate erred by taking into account prosecution failure to arrange for police officer to be present at the hearing in deciding to summarily dismiss the prosecution case – the order of dismissal on the third count in the complaint will be set aside – matter remitted for hearing before another Magistrate.
Controlled Substances Act 1984 (SA) s33L(2)(c), referred to.
Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; Ousley v The Queen (1997) 192 CLR 69, applied.
R v Williams (1976) 14 SASR 1, considered.

POLICE v MCLEOD
[2010] SASC 55
Magistrates Appeal: Criminal

DUGGAN J: This is a prosecution appeal against the dismissal of a charge of possessing a piece of equipment for use in connection with the smoking of cannabis contrary to s 33L(2)(c) of the Controlled Substances Act 1984 (SA) (“the Act”). The relevant complaint contained three charges. Counts 1 and 2 charged the appellant with possessing cannabis and possessing cannabis resin respectively. Count 3 charged the appellant with the offence contrary to s 33L(2)(c) of the Act. All charges were laid following a search of the respondent’s premises on 2 April 2008 which was conducted under a search warrant issued pursuant to s 52 of the Act.
The matter was set down for hearing on 30 November 2009. Prior to the hearing, the prosecution were advised by the defence that a challenge would be made to the legality of the search of the respondent’s premises on 2 April 2008.
When the matter was called on for hearing on 30 November 2009 the prosecution advised the Magistrate that there was a difficulty in proceeding with counts 1 and 2, possessing cannabis and possessing cannabis resin. This was because the Certificate of Analysis provided by the prosecution in fact did not relate to the cannabis in question. The prosecution sought an adjournment in order to enable an analysis of the cannabis in question to be carried out.
The Certificate of Analysis was not required for the trial on the third count. However, the Magistrate was told that the defence wished to cross-examine a police witness in relation to the legality of the search. The defence had requested a statement from this police officer through the prosecution, but it had not been supplied and the police officer was not present at court for the hearing. If the evidence relating to the search were excluded the prosecution could not prove the offence charged in the third count.
According to the reasons of the Magistrate, an adjournment was requested in respect of all three counts. The application was refused. The prosecutor then sought instructions and returned to the Court to advise that the prosecution wished to proceed on all three counts.
The Magistrate said that he saw no point in hearing any evidence in the matter and the three charges were summarily dismissed.
As stated above, the appeal is confined to the third count. The appellant argues that the Magistrate was required to hear this charge. According to the appellant, the prosecution evidence was available to be called and the prosecution wished to proceed.
In order to deal with the argument it is necessary to have regard to the circumstances leading up to the date of trial. On the day prior to the search of the respondent’s premises, police officers were involved in a high speed pursuit of a vehicle. The chase did not involve the respondent but the vehicle was abandoned outside the respondent’s premises. Senior Constable Powell, a dog handler, conducted a search in the vicinity of the respondent’s premises. It appears that he smelt cannabis in the vicinity of the property and he formed the opinion that his dog detected the same smell. He passed this information on to Sergeant Cannon who subsequently applied for the warrant to search the respondent’s premises.
The precise nature of the alleged unlawfulness in relation to the search which the defence wished to pursue has been somewhat vague throughout. Mr Noblett, the respondent’s solicitor, spoke to the Elizabeth Criminal Justice Section (“the CJS”) before the trial date on a number of occasions. There is a message on the CJS file that Mr Noblett rang on 8 July 2009. The note reads:
Phone call from sol Noblett – search authority is in dispute.
Another note on the file, made on 10 July 2009, reads:
Legality of the search is the issue and warrant being challenged.
Another note made on the file at a pre-trial conference states:
Voir dire hearing as to legality of search.
On 6 November 2009 Senior Constable Simpson of the Elizabeth CJS, who was assigned to prosecute the matter, spoke to Mr Noblett and made the following note:
Spoke with Noblett states the issue is the lawfulness of the Police’s presence before the suspicions came about in relation to the drug warrant.
Senior Constable Simpson stated in an affidavit received on appeal:
I understood at the time [the occasion of the conversation with Mr Noblett on 6 November 2009] the purpose of Mr Noblett’s request was that the defendant proposed a challenge the reasonableness of Sergeant Cannon’s suspicions before he obtained the drug warrants.
On 23 November 2009 Senior Constable Simpson faxed to Mr Noblett a copy of a police diary entry dealing with the chase incident which occurred on 1 April 2008.
Senior Constable Simpson gave his version of what occurred at the hearing on 30 November 2009 in his affidavit:
I told the Court that Sergeant Cannon could give evidence and he could advise the court that as a result of his conversation with Senior Constable Powell he formed the suspicion and obtained drug warrants. I said that without Senior Constable Powell’s statement, this Court could accept the oral testimony of Sergeant Cannon in relation to his conversation as an exception to the hearsay rule. That hearsay evidence can be accepted to prove reasonable grounds for the suspicion.
The Magistrate did not permit me to call witnesses of effectively open my case in relation to count 3. Were I permitted to do so; I did have copies of the drug warrants available to tender. Likewise I did have Police witnesses, including Sergeant Cannon, who had conducted the search at court ready to be called.
An affidavit sworn by Mr Noblett was received on the hearing of the appeal. He stated that material provided by the Elizabeth CJS, coupled with his client’s instructions, suggested that an enquiry should be made into the actions of police on 1 April 2008. He said that he spoke to Senior Constable Simpson on 27 November 2009 and told him that he had not received any statement from the police officer described as “the dog handler” in the material provided by the police. He also said that Senior Constable Simpson told him he might be able to provide a statement from this officer on the first day of trial, which was the following Monday. As stated, Senior Constable Powell was not present at Court on the day of trial.
In his reasons for dismissing the third charge the Magistrate said:
In relation to count 3 I was told that a key witness was not available. Some police officers were available to give evidence but the officer in question (whose observations led to the search warrant being issued and acted upon), for some reason was not available. Indeed, I was told that no statement had been provided by this police officer who had not even responded to the prosecutor’s emailed requests for such a statement. Again it was indicated that an adjournment would be sought. Again – and for the same reasons – I indicated that any such application would not be granted.
The matter was held in the list for a short period of time to enable the prosecutor to obtain instructions from his superiors. A short time later I was informed that the prosecutor was instructed to proceed on all 3 counts! At that point Mr Noblett made submissions as to an abuse of process. He also pointed out that he would be prevented from cross examining the key witness in relation to the legality of the search. The prosecutor again conceded that he did not have available to him the correct certificate of analysis in relation to counts 1 and 2, nor did he have available to him the key prosecution witness in relation to count 3.
Based on those concessions I saw absolutely no point in proceeding to hear any evidence regarding the matter. I have made it clear that any adjournment would not be granted. The allegations date back nearly 18 months and prosecution have been on notice for a number of months as to the issues in dispute. Prosecution ought to be in a position to proceed and they are not. In those circumstances I take the defendant’s pleas of Not Guilty to each count and then dismiss each count for a want of prosecution.
The prosecution could not proceed on the first and second counts in the absence of the Certificate of Analysis. However, they were ready to proceed on count 3 and indicated an intention to do so. The police witnesses were present at Court. The prosecution did not intend to call Senior Constable Powell as part of its case. In the light of the information conveyed to the prosecutor before the hearing, it is understandable that he thought there was a challenge to the reasonableness of Sergeant Cannon’s suspicions when applying for the warrant. If this had been the basis for the application to exclude the evidence it is likely that the defence would have been prevented from pursuing the argument.
In Question of Law Reserved on Acquittal (No 5 of 1999),[1] the Full Court noted that, if a warrant is valid on its face, the scope for collateral challenge is limited.[2] Mullighan J referred to Ousley v The Queen[3] and said:[4]
Given that the warrants are valid on their face, there could be no collateral challenge founded upon alleged insufficiency of material placed before DCI Newman by the applicants for the warrants.
…
The relevant question is whether DCI Newman was satisfied as to the matters about which he had to be satisfied under s 52(5) of the Act. I accept the submission of the Solicitor-General that the sufficiency or otherwise of the information presented to him by the person seeking the warrants is not relevant to that question, except for any issue of Wednesbury unreasonableness which does not arise in the present circumstances.
(Citations omitted)[5]
[1] (2000) 76 SASR 356.
[2] (2000) 76 SASR 356 at [27].
[3] (1997) 192 CLR 69 at 87, 126, 127, 130 and 131.
[4] (2000) 76 SASR 356 at [27].
[5] See also Lander J at [186].
In his submissions on appeal Mr Mead, for the respondent, said that the basis of the challenge to the evidence was unlawfulness on the part of the police while they were in the vicinity of the premises on 1 April 2008. The fact that, on appeal, counsel for the appellant had addressed the Court on the mistaken basis that the challenge related to the search warrant is itself an indication of the uncertainty which surrounded the issue which the defence wished to raise at the hearing before the Magistrate. This is relevant when considering whether the prosecution was under any duty to obtain a statement from Senior Constable Powell and to arrange for him to be present at the original hearing. If there had been a challenge to the warrant it is difficult to see how his evidence would have been relevant.
As for unlawfulness on 1 April 2008, the day before the search, it remains unknown precisely what is being alleged by the defence. If the defence intended to apply for a voir dire hearing on this issue it would be necessary to put some information before the Court to justify such a procedure.[6] The broad assertion that there might have been some unlawful act on the day prior to the search which would have affected its legality would be insufficient to justify a voir dire hearing at the commencement of the trial without further information.
[6] Cf R v Williams (1976) 14 SASR 1.
The onus was on the defence to establish illegality and the appropriateness of the Court exercising the discretion to exclude the evidence of the search. The defence had indicated that its intention was to cross-examine Senior Constable Powell. This opportunity would not arise unless the prosecution decided to call him in the light of material put before the Court by the defence.
The Magistrate accepted the argument that, if the matter proceeded, the defence “would be prevented from cross-examining the key witness in relation to the legality of the search”. However, it was putting the matter too highly to describe Senior Constable Powell as a key witness. As previously stated, this witness was not essential in order to prove the case which the prosecution wished to present. He may or may not have become an important witness depending upon the nature of the defence challenge to the search. However, at the time the charge was dismissed this had not been revealed.
What I have said is not to discourage the prosecution from making a witness available to be called by the defence or calling the witness as part of the prosecution case if the circumstances require it. However, in the circumstances of the present case it was by no means clear that Senior Constable Powell could provide relevant evidence on an issue which the Court was required to investigate. The fact that the prosecution did not arrange for him to be present at the hearing was not a proper matter to take into account in deciding to summarily dismiss the prosecution case.
The appeal will be allowed and the order of dismissal on the third count in the complaint will be set aside. The matter will be remitted for rehearing before another Magistrate.