R v As and Raynor (No 2) - [2023] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AS AND RAYNOR (No 2)
[2023] SADC 65
Reasons for Ruling of his Honour Judge Handshin
31 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Applications to exclude evidence of the search of a house on the basis that the search was unlawful or, if lawful, was contaminated by antecedent illegality so as to justify exclusion of the evidence in the exercise of the public policy discretion. On 2 January 2021, at approximately 10:00am, Police searched AS’s residence at Lockleys pursuant to s 67(4) of the Summary Offences Act 1953 (SA). The search located 110.7 grams of methylamphetamine, one kilogram of pseudoephedrine and an airsoft imitation handgun.
In determining to execute his general search warrant, the warrant holder relied, in part, on information acquired during a search of a vehicle being driven by AS on 1 January 2021, during which he was found in possession of methamphetamine. That search was held to be unlawful and evidence of the search was excluded.
The warrant holder also relied on intelligence arising out of a more significant police operation and surveillance reports suggesting AS’s involvement in drug trafficking.
Following the search, the warrant holder completed a PD23A form. The form erroneously omitted information the warrant holder said he had access to and relied upon in deciding to execute his warrant and was not a comprehensive reflection of the warrant holder’s suspicion.
Held: The search of the house was lawful. The warrant holder genuinely suspected that a search of the house might afford evidence of the commission of an offence. In forming his suspicion, the warrant holder was not precluded from relying on information acquired as a result of the illegal search of the van the day before. The warrant holder could not have known or suspected that the search of the van was conducted illegally. He received, and acted, on the information in good faith. That information, combined with the other information available to the warrant holder, provided reasonable cause to suspect that a search of the house might afford evidence of the commission of an offence. The search of the house was lawful.
As the search of the house was lawfully conducted pursuant to s 67(4) of the Summary Offences Act, the evidence was not obtained by illegal or unlawful means. Further, to the extent that the public policy discretion can apply to evidence obtained lawfully but in connection with anterior or posterior illegality or impropriety, the discretion should not be exercised to exclude evidence obtained during the search of the house. The applications are dismissed.
Controlled Substances Act 1984 (SA) s 52(9); Summary Offences Act 1953 (SA) s 67(4); Crimes Act 1900 (NSW) s 357E; Uniform Evidence Acts s 138; Evidence Act 1995 (NSW) s 138, referred to.
R v AS and Raynor [2023] SADC 60; Bunning v Cross (1978) 141 CLR 54; R v Rondo [2001] NSWCCA 540; Schatto v The King [2022] SASCA 129; Zenuni v The King [2022] SASCA 106; Mapp v Ohio 367 US 643 (1961); Kadir v The Queen (2020) 267 CLR 109; R v Ireland (1970) 126 CLR 321; DPP v Moore (2003) 6 VR 430; DPP v Riley (2007) 16 VR 519; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; French v Scarman (1979) 20 SASR 333; R v Lobban (2000) 77 SASR 24, considered.

R v AS AND RAYNOR (No 2)
[2023] SADC 65
[Criminal]

The defendants, AS and Alison Joy Raynor (Raynor), are jointly charged on an Information dated 6 May 2022 with one count of trafficking a controlled drug, namely, methamphetamine; one count of possessing a commercial quantity of a controlled precursor, namely, pseudoephedrine and one count of aggravated possessing a firearm without a licence (counts 2, 3 and 4). The accused AS is separately charged with a further count of trafficking a controlled drug (count 1).
The charges arise out of discoveries made by police during two discrete, but connected, searches. The first was a search of a van being driven by AS on 1 January 2021, as a result of which police located 13.6g of powder containing 9.75g of methamphetamine. This is the methamphetamine the subject of count 1 on the Information of 6 May 2022.
The second was a search conducted on the morning of 2 January 2021 at AS’s residence at Lockleys, where the defendant Raynor was present upon police attendance. In the course of the second search, police located 110.7g of methamphetamine (count 2), 1kg of pseudoephedrine (count 3) and an airsoft imitation handgun chambered to fire 6mm airsoft pellets (count 4).
On 4 May 2022, and pursuant to r 49 of the District Court Criminal Rules 2013 (as they then were), AS filed an application seeking the exclusion of evidence obtained as a result of the search of the van and the residence at Lockleys. The application of AS is supported by Raynor (together, the applicants), who, on 10 May 2023, filed an application pursuant to r 39 of the Joint Criminal Rules 2022 seeking the same orders.
On 17 May 2023, having heard evidence and submissions concerning the lawfulness of the search of the van on 1 January 2021, I ruled that search had been conducted illegally and excluded the evidence obtained as a result of the search.[1]
[1] R v AS and Raynor [2023] SADC 60.
These reasons deal with the second limb of the applications filed by the applicants, namely, the challenge to the lawfulness of the search of the Lockleys residence on 2 January 2021. Some of the background to that search can be found in my earlier reasons (primary reasons) and these reasons should be read together with my primary reasons.
The search of the Lockleys residence was conducted pursuant to a General Search Warrant (GSW) held by Detective Brevet Sergeant John Barile. The conditions precedent to the exercise of a GSW are set out in s 67(4) of the Summary Offences Act 1953 (SA) (SOA):
67—General search warrants
…
(4) The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i) an offence has been recently committed, or is about to be committed; or
(ii) there are stolen goods; or
(iii) there is anything that may afford evidence as to the commission of an offence; or
(iv) there is anything that may be intended to be used for the purpose of committing an offence;
(b) the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i) there are stolen goods; or
(ii) there is anything that may afford evidence as to the commission of an offence; or
(iii) there is anything that may be intended to be used for the purpose of committing an offence;
(c) the officer may seize any such goods or things to be dealt with according to law.
The applicants contend that the search of the Lockleys residence was unlawful. It is said that whatever subjective suspicion was held by Detective Barile was not reasonably held. The applicants complain, amongst other things, that Detective Barile’s decision to search the Lockleys residence was an opportunistic tactical decision, made in the context of and for the purpose of furthering another police investigation. This is said to expose the suspicion held by Detective Barile as without proper foundation and built upon an extraneous desire, foreign to the proper exercise of a GSW, to ‘take a look’ inside AS’s house for the purpose of other, more significant, police investigations.
The applicants contend further that even if the search of the house was, on the face of it, conducted lawfully and in accordance with the power conferred by Detective Barile’s GSW, the evidence thereby obtained should nonetheless be excluded because Detective Barile relied, at least in part, on the fruits of the unlawful search of the van to satisfy himself that there was a proper basis to search the house. It is said that this contaminates the lawfulness of the search of the house or otherwise provides a basis to exclude evidence obtained during the search of the house.
Accordingly, the resolution of the current application turns on the answers to the following questions:
First, did Detective Barile suspect that a search of the Lockleys residence might afford evidence of the commission of an offence? If the answer to this inquiry is ‘no’, the search was unlawful and the exclusion of the evidence subsequently obtained is to be determined by application of the exclusionary calculus set out in Bunning v Cross.[2]
[2] (1978) 141 CLR 54.
Secondly, if Detective Barile genuinely suspected that a search of the Lockleys residence might afford evidence of the commission of an offence, did he have reasonable cause to suspect as much? The determination of this issue requires the Court to put itself in the position of Detective Barile, with the knowledge held by him at the time of the search, and ask whether, in those circumstances, a reasonable person in possession of the information would have entertained the same suspicion.
Thirdly, if the search was unlawful, should the evidence be excluded in the exercise of the public policy discretion? Further, and in the alternative, even if the search was, ex facie, lawful, should evidence of the search nonetheless be excluded on public policy grounds because Detective Barile relied upon information derived from the unlawful search of the van? Does the reliance on information obtained during an illegal search of the van contaminate the search of the house?
I determine these issues as follows:
First, I accept Detective Barile’s evidence that he genuinely suspected that a search of the house might afford evidence of the commission of an offence.
Secondly, Detective Barile had reasonable cause to suspect that a search of the house might afford evidence of the commission of an offence. It is clear that AS was a person of interest to police in the context of a substantial investigation into drug trafficking activities and intelligence holdings considered by Detective Barile in the period leading up to 2 January 2021 supported the working hypothesis that AS was actively involved in the manufacture or trafficking of illicit substances. Detective Barile also had information that linked AS’s activities to the Lockleys residence. It may well be that this information was sufficient, of its own accord, to justify a search of the Lockleys residence on 2 January. However, it did not stand alone. It was corroborated and rendered current, to the extent necessary, by the information acquired during the search of the van the day before. Detective Barile had reasonable cause to suspect that a search of the house might afford evidence of the commission of an offence. The search was lawful.
Thirdly, and given my findings on lawfulness, the Bunning v Cross discretion does not arise in the conventional sense. Insofar as that discretion can be invoked in order to exclude evidence that is not directly obtained by unlawful or improper conduct but which is obtained in close connection with such conduct, I reject the contention that this is an appropriate case for its exercise. Detective Barile received the information about the search of the van in good faith. He considered the cogency of that information, together with other information known to him in deciding that he was justified in executing his GSW at the Lockleys residence. Although it may be accepted that Detective Barile relied at least in part on information that had been acquired by police as the result of an unlawful search, I am not persuaded that, in the circumstances of this case, his reliance on that information contaminates the lawfulness of the search of the house or otherwise justifies the exclusion of the evidence.
Detective Barile
Detective Barile was the only witness who gave evidence on the voir dire. A number of affidavits were tendered by consent and it was otherwise agreed by counsel that I could have regard to the affidavits of police involved in the search of the house.
As at January 2021, Detective Barile was stationed at the Serious and Organised Crime Branch of South Australia Police. He has been a police officer since 2006 and a Detective since 2018.
At 9:15am on 2 January 2021, Detective Barile attended a briefing conducted by Detective Sergeant William Tuplin in relation to the arrest of AS on 1 January 2021. The focus of the briefing was to provide information about the search of the van and allocate roles in respect of a planned search of the Lockleys residence, which was believed to be the home address of AS.
Those in attendance at the briefing were informed that AS had been arrested the previous day on a charge of trafficking a controlled drug, having been found in possession of methamphetamine during a vehicle stop.
Detective Barile was allocated the roles of warrant holder and exhibits officer. That is to say, it was contemplated that the search of the house would be conducted pursuant to Detective Barile’s GSW. Accordingly, and as Detective Barile acknowledged, it was necessary that he be satisfied of the conditions precedent to the use of a GSW.
Detective Barile said that, in light of the information provided to him during the briefing, he suspected that a search of the Lockleys residence might afford evidence to further the prosecution of the offence of trafficking in a controlled drug, with which AS had been charged less than 24 hours earlier.
However, the information conveyed to Detective Barile that morning was not the only relevant information available to him and which he took into account in determining to execute his GSW on 2 January 2021.
Other information available to Detective Barile
The additional information that Detective Barile had received in relation to AS at 2 January 2021 may be summarised in the following way:
First, Detective Barile had information acquired in the course of another, more significant, police operation (Operation Antares) that was focused on senior members of an outlaw motorcycle gang (OMCG) and their drug trafficking activities. There were two primary targets of that operation who were thought to exercise control over a wide network of associates and members of the relevant OMCG. Although AS was not one of the primary targets of the operation, he was, as at December 2020, a focus of the investigation and was suspected of being a drug cook, working on behalf of the OMCG.
Secondly, in the month leading up to the Lockleys search, Detective Barile had received and considered a number of intelligence reports which suggested AS was involved in the manufacture and trafficking of methamphetamine. According to Detective Barile, the effect of the intelligence information was that AS was suspected to be a ‘drug cook’ and was involved in setting up clandestine laboratories and manufacturing methamphetamine. This information appears to have been provided to Detective Barile by virtue of his involvement in Operation Antares.
Thirdly, Detective Barile had been provided with surveillance logs referable to yet another police investigation, which recorded observations of AS on 24 November 2020 and 4 December 2020. Relevantly, the observations of 24 November 2020 included that AS was seen purchasing glassware from an educational toy store, which he subsequently conveyed to his home address. On 4 December 2020, a known associate of AS suspected to be an electrician involved in the establishment and maintenance of clandestine laboratories was seen entering and leaving the Lockleys residence on a number of occasions, and taking access to the vehicle in which he had arrived. The known associate was also seen to load items from the rear of his vehicle into the boot of another vehicle that had been parked at the Lockleys premises.
Detective Barile said further that he was also aware that AS had previously spent time in gaol for manufacturing methamphetamine.
I will refer to this information collectively as the ‘external information’.
Detective Barile gave evidence that he considered that, absent the information concerning the arrest of AS on 1 January 2021, police had a sufficient basis to search AS’s residence. However, the arrest of AS on 1 January 2021 provided a tactical opportunity to do so without compromising Operation Antares which was expected to remain ongoing for a significant period of time.
Counsel for Raynor was critical of this aspect of Detective Barile’s evidence. He contended that the use of a GSW to exploit a ‘tactical opportunity’ was improper. The submission was not developed in detail but as I understand it, counsel’s point seems to have been that this ‘ulterior motive’ reflected adversely on whether Detective Barile in fact held a subjective suspicion that a search of the house might afford evidence of the commission of an offence. It was also put, at least faintly, that Detective Barile acted at the direction of Detective Tuplin and did not in fact suspect that a search might afford evidence of the commission of an offence.
I reject these submissions. With respect to the challenge based on the exploitation of a ‘tactical opportunity’, the issued raised by the first limb of the inquiry that s 67(4) directs attention to is simply whether the warrant holder suspected that a search might afford evidence of the commission of an offence. Once that state of suspicion is aroused in a warrant holder, he or she has power to conduct a search. It is not to the point that the search might be thought, or hoped, to yield evidence relevant to a number of investigations. The purpose of a GSW is to enable police to conduct searches with a view to detecting or marshalling evidence of the commission of criminal offences. It is possible to conceive of a situation in which the power of a GSW might be exercised for some personal or non-investigative purpose so as to render a subsequent search or seizure of items unlawful. But that is a situation far removed from that under consideration.
As to the second aspect of the submission, Detective Barile’s evidence was that he carefully considered the circumstances presented to him and the appropriateness of executing his warrant. In part, this was due to his involvement in Operation Antares and the desire to avoid compromising that operation. Detective Barile said that as the warrant holder, it was for him to determine whether grounds existed to conduct the search and he was satisfied there were proper grounds. These features of the context in which Detective Barile decided to execute his GSW speak heavily against the submission advanced by counsel for Raynor that Detective Barile did not hold the required subjective state of mind and simply acted at the behest of others.
The search and the Record of General Search Warrant Use document
Returning to the chronology of events on 2 January 2021, police arrived at the Lockleys residence at around 10am. Raynor was present.
A search of the property was conducted and the items referred to in paragraph [3] above were located.
At 3:20pm, following the completion of the search and associated duties, Detective Barile filled out what is known as a ‘PD23A’. A PD23A is an internal police document which requires a police officer who executes a GSW to record the matters supporting the suspicion that led to the execution of the warrant. The document serves as a check and balance against the use of a GSW and allows the superiors of warrant holders to superintend the appropriateness of the deployment of the powers conferred by a GSW. In this respect, the PD23A is an important oversight document that allows high ranking members of South Australia Police to scrutinise the circumstances in which GSW’s are being utilised. It goes without saying that documents of this kind, which form an important part of the machinery associated with executing a GSW, should be attended to carefully and comprehensively by warrant holders.

The PD23A is divided into two parts. The first requires the executing officer to provide notes supporting reasonable cause to suspect that are not subject to a claim of privilege. It is a requirement of the PD23A that any notes that are not recorded on the form must otherwise be referenced.
The second part of a PD23A requires the executing officer to set out the notes supporting reasonable cause to suspect that may be subject to a claim of privilege.
In the PD23A completed by Detective Barile on 2 January 2021, the first part of the form comprises the following information:
[AS] of … Lockleys arrested for trafficking in a controlled drug (approximately 15 grams of methylamphetamine) by Eastern District Members on 1/1/21…Home address at … Lockleys not searched on that date.
Premises searched on 2/1/21 on relation to above arrest.
Further arrest made as a result of search, arrest of occupant Alison Raynor …
The second part of the PD23A was left blank by Detective Barile.
As required, Detective Sergeant Tuplin, who was then Detective Barile’s supervisor, signed off on the PD23A.
Self-evidently, the PD23A referred only to one component of what Detective Barile said in the course of his evidence was a substantial volume of information available to him and which informed his suspicion that a search of AS’s residence might afford evidence of the commission of an offence. The PD23A made no mention of:
·       The information acquired in the course of Operation Antares.
·       The information derived from intelligence reports which Detective Barile had read.
·       The information discernible from the surveillance logs.
·       Detective Barile’s awareness of AS’s history of involvement in the manufacture of methamphetamine.
In his evidence in chief, Detective Barile explained that the content of the PD23A was not ‘a comprehensive reflection of my suspicions held but it does, very briefly, summarise part of the reason we attend his address on that date’.
In cross examination, Detective Barile accepted that neither his handwritten notes (VDP8) nor the PD23A (VDP4) made reference to any information other than that resulting from the search of the van on 1 January 2021. He accepted that he had erroneously omitted this information from the PD23A.
Detective Barile also acknowledged that in his first affidavit filed in these proceedings in April 2021, he made no mention of the external information about which he gave oral evidence. He accepted that this information should have been included on the PD23A which ought to have served as a comprehensive account of his suspicions. He accepted it did not.
It was put to Detective Barile that, in light of his oral evidence, the content of the PD23A was neither true nor accurate. Detective Barile’s response was that what was included on the PD23A was an accurate but incomplete and, it is fair to say, superficial, record of the information that he had access to and considered for the purpose of determining whether to exercise his GSW.
Detective Barile said that at the time he prepared his April 2021 affidavit, he was not aware of any challenge to the legality of the search. Indeed, as I have said earlier, the application of AS seeking the exclusion of evidence obtained during the search of the house was filed on 4 May 2022.
Although the details are not clear to me, it appears from a supplementary affidavit provided by Detective Barile in February 2023 that there was some elaboration of the information Detective Barile said he acted upon when deciding to execute his GSW. I note that counsel for AS cross-examined Detective Barile on errors in respect of certain dates in his February 2023 affidavit but, ultimately, this did not appear to be of great moment.
Whilst it may be said that the cross examination of Detective Barile indirectly challenged his credibility, it was not put to him that he did not in fact have within his corpus of knowledge the external information that he gave evidence about. In the course of submissions, counsel for AS said that it was implicit in his cross examination that Detective Barile had concocted or fabricated his evidence about having access to and considering the external information as part of his process of reasoning. I will proceed on that basis notwithstanding that it was not put to Detective Barile in direct terms. Given the nature of the contention, it ought to have been.
Principles
I refer to, without repeating, the principles discussed in paragraphs [118] to [126] of the primary reasons. The discussion there is equally applicable to s 67(4) of the SOA noting, of course, the taxonomical differences between s 52(9) of the Controlled Substances Act 1984 (SA) (CSA) on the one hand and s 67(4) of the SOA on the other.[3]
[3] Schatto v The King [2022] SASCA 129, [35]-[50]; Zenuni v The King [2022] SASCA 106, [13]-[16].
In R v Rondo,[4] Smart JA summarised some of the organising principles relevant to what was then s 357E of the Crimes Act 1900 (NSW), which conferred a power on police to stop, search and detain any vehicle in which he or she reasonably suspected there was anything stolen, unlawfully obtained or used or intended to be used in the commission of an indictable offence. His Honour explained at [53]:
A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question, regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
[4] [2001] NSWCCA 540.
These comments are equally applicable to s 67(4) of the SOA and resonate with the discussion of principles in the authorities referred to in the primary reasons.
Did Detective Barile suspect a search of the house might afford evidence of the commission of an offence
I accept the evidence of Detective Barile. I considered him to be both a credible and reliable witness. It goes without saying that Detective Barile’s failure to comprehensively complete the PD23A stands to his discredit. It is a practice that should not be repeated. However, I am not persuaded that the approach he took in this case reflects adversely on his credit or reliability. Rather, the approach seems to have been the unfortunate by-product of the fact that the search of the house occurred in the context of, and whilst Detective Barile was focussing on, another, more significant investigation. It appears further that Detective Barile may have taken the view that because of the close working environment in which he and his supervisor were operating, that there was essentially some assumed, common knowledge about investigations which meant the PD23A was perhaps less important than it otherwise might have been. That assumption may be well founded, but it remains important that the circumstances giving rise to the use of a GSW are properly documented.
Indeed, it is imperative to my mind that police utilising the powers conferred by a GSW attend carefully and diligently to the preparation of notes, including the PD23A, as a contemporaneous record of the information upon which they have relied in executing a GSW. That is so for a number of reasons.
First, the power conferred by a GSW is extensive. GSW holders have wide and intrusive powers of search which, if exercised improperly or incorrectly, have the capacity to produce a substantial infringement of civil rights and liberties. It is of the utmost importance that the information upon which a warrant holder has relied in exercising a GSW is not inscrutable. An important part of ensuring transparency and accountability in the use of a GSW is the expectation, if not requirement, that police should accurately and thoroughly document the information relied upon in reaching the suspicion required by s 67(4) of the SOA.
Secondly, and as I have previously said, the purpose of a record such as the PD23A is to afford a check and balance against unauthorised, improper or unthinking use of a GSW. South Australia Police General Orders, and common sense, require that the preparation of the PD23A be carried out with precision and thoroughness so that the form can fulfil its function and so that high ranking officers within South Australia Police are able to effectively discharge their supervisory obligations.
The manner in which Detective Barile filled out the PD23A leaves a lot to be desired and, to his credit, Detective Barile conceded as much.
Despite these shortcomings in the way the PD23A was completed, I am unpersuaded that this, or the delay in disclosing the external information which he had and considered, reflects adversely on his credibility or reliability. Having had the opportunity of observing Detective Barile give evidence, he struck me as a conscientious and professional police officer who, by his own acknowledgment, fell into error in failing to properly attend to the detail of the PD23A. As I have said, this failure is contextualised to some extent by the fact that the investigation of 2 January 2021 was of less significance to Detective Barile and his colleagues involved in Operation Antares and that his supervisor, Detective Tuplin, was well familiar with his investigations.
Equally, I accept Detective Barile’s evidence that in the course of Operation Antares he, and other police, had been provided with a substantial volume of intelligence information, some of which suggested that AS was complicit in the illicit drug trade. Once again, I express some disquiet about the failure to document this information in the context of executing a GSW. It is important that those conferred with power to execute a GSW attend carefully and accurately to documenting the circumstances in which they have exercised that power and the information they have relied on. In part, this is necessary so that this Court can discharge its supervisory role. However, I do not accept that this shortcoming in Detective Barile’s approach reflects negatively on his credibility or reliability. Again, and having had the opportunity to observe his evidence, I accept that Detective Barile had a reliable recollection of the substance and effect of the intelligence information that he had read and that he took into account this information and the surveillance observations about which he gave evidence, when making the decision to execute his GSW.
Having accepted Detective Barile as a credible and reliable witness, I find that he genuinely suspected that a search of the Lockleys residence might afford evidence of the commission of the offence with which AS had been charged the day before. That suspicion, I find, was borne out of the external information available to Detective Barile, which I accept he had and considered, and the information derived from the search of the van on 1 January 2021.
As I have said, I do not consider that Detective Barile’s description of the arrest of AS on 1 January 2021 providing a tactical opportunity to search the house detracts from his evidence concerning the suspicion that he held. Rather, I consider that what this aspect of Detective Barile’s evidence clearly conveyed was that he considered a search of the Lockleys residence could be appropriately undertaken on 2 January 2021, in light of AS’s recent arrest, without jeopardising an ongoing operation.
Accordingly, I resolve the first relevant question in favour of the prosecution.
Was Detective Barile’s suspicion reasonably held
I turn then to the reasonableness of Detective Barile’s suspicion.
At one level, this issue can be disposed of by asking whether it was reasonable for Detective Barile to suspect that a search of AS’s residence on 2 January 2021 might afford evidence of the commission of a drug trafficking offence, given that he had been arrested in possession of methamphetamine, and charged with trafficking, less than 24 hours earlier.
If so, the external information that Detective Barile claims to have had did little more than fortify the reasonableness of a suspicion that quite properly arose out of the information conveyed about the events of 1 January 2021.
In my view, it was reasonable for Detective Barile to suspect that a search of AS’s residence on 2 January 2021 would afford evidence of the commission of a drug trafficking offence based on the information concerning AS’s arrest and charge with trafficking methamphetamine on 1 January 2021.
Given the contemporaneity of that information and that it emanated from a reliable source, namely a search conducted by police, that information was sufficient by itself to give rise to a rational and sound reason to think that a search of the residence would afford evidence of the commission of an offence.
However, the information acquired during the search of 1 January did not stand on its own. The external information suggested that AS’s association with methamphetamine on 1 January was not isolated or a ‘one off’. The external information buttressed the suspicion justifiably arising from the events of 1 January and connected that suspicion to the Lockleys’ residence. This was not a case of mere idle wondering, speculation or a mere possibility that evidence of the commission of an offence might be detected in the course of a search of the house.
There having been no challenge to Detective Barile’s evidence that he was advised of the discovery made on 1 January 2021; the fact that AS had been found in possession of methamphetamine and charged with drug trafficking, I find that Detective Barile had reasonable cause to suspect that a search of the Lockleys residence might afford evidence of the commission of an offence. That information, viewed in conjunction with the external information, which I have found Detective Barile was in fact aware of and in fact considered when deciding to execute his GSW, was sufficient to establish reasonable cause to suspect.
Ex facie, the search of the house was conducted in accordance with s 67(4) of the SOA.
Is the search of the house tainted by the illegality of the search of the van
However, my conclusion that the search of the house was carried out in accordance with s 67(4) of the SOA does not necessarily dispose of the application. It remains to consider whether the illegality associated with the search of the van provides a basis upon which evidence obtained during the search of the house should nonetheless be excluded.
In this respect, it was not suggested by counsel for the applicants that anything other than the public policy discretion arose for consideration. Rather, the applicants’ contention was that the evidence of the search of the house ought to be excluded because the illegality involved in the search of the van had contaminated the search of the house. Put another way, the applicants’ argument, as I understand it, was that the close connection in time and circumstance between the search of the van and the search of the house, and the fact that at least one tranche of information upon which Detective Barile relied was derived from the search of the van, meant the illegality ‘cross pollinated’ the lawfulness of the search of the house.
There is no recognised doctrine in Australian jurisprudence that resembles that of the fourth amendment to the American Constitution which provides protection against the exploitation of fruits of the poisoned tree,[5] although the terms of s 138 of the Uniform Evidence Acts in force in a number of jurisdictions gives effect in part to this concept.[6] The exclusionary rule recognised by the American Constitution is that, subject to various exceptions, primary and derivative evidence obtained as a result of unlawful police conduct is inadmissible.
[5] Mapp v Ohio 367 US 643 (1961).
[6] See Kadir v The Queen (2020) 267 CLR 109, [12], [40].
Section 138 of the Uniform Evidence Acts creates a conditional exclusionary rule. Evidence obtained improperly or in contravention of an Australian law or in consequence of impropriety or a contravention of an Australian law, is inadmissible unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained by, or connected with, impropriety or illegality. Although s 138 is predicated on the decision in Bunning v Cross, it in fact goes further insofar as it creates a rule of conditional exclusion that applies to evidence obtained in consequence of impropriety or illegality.
Leaving aside the effect of s 138 of the Uniform Evidence Acts which has no application in this State, the mechanism that the common law developed for dealing with evidence obtained by improper or unlawful police conduct is the public policy discretion. The discretion developed from the premise that the courts could not be seen to condone or encourage improper or unlawful conduct by those who are charged with upholding and enforcing the law, by allowing unlawfully procured evidence to be used to the advantage of law enforcement authorities.
The discretion is enlivened when improper or illegal conduct is the means by which the authorities obtain evidence later sought to be used in furtherance of a criminal prosecution. Whether the discretion should be exercised in any particular case so as to exclude illegally or improperly obtained evidence is determined after a weighing of competing considerations concerned with the public interest in bringing to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful treatment.[7] In Bunning v Cross,[8] Stephen and Aickin JJ (Barwick CJ agreeing) explained that what is involved in the exercise of the ‘public policy discretion’ is:
… no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[7] R v Ireland (1970) 126 CLR 321, 335.
[8] (1978) 141 CLR 54, 74.
Ordinarily, the discretion operates to exclude evidence obtained directly as a result of illegal or improper conduct by law enforcement authorities. That is, the discretion typically requires demonstration of a direct and uninterrupted causal link between the unlawful or improper conduct and the obtaining of the impugned evidence. However, it has been recognised elsewhere that the discretion may have a role to play in relation to antecedent or derivative evidence – that is, evidence obtained before or after the illegal or improper conduct - notwithstanding the evidence was not, strictly speaking, obtained by improper or unlawful means.
In DPP v Moore,[9] the Court of Appeal of Victoria held, by majority, that the public policy discretion could be exercised to exclude evidence notwithstanding it was not obtained directly as a result of any illegal or improper police conduct. In Moore, the respondent had been required to submit to a breath test, which returned a positive result. Having referenced his entitlement to take a blood test with a view to challenging the results of the breath test, the respondent was advised against that course by the police breath test operator on the basis that the results of a blood test were unlikely to assist him. Chernov JA, with whom Eames JA agreed, held that the facts engaged the public policy discretion, which was rightly exercised at trial to exclude evidence of the breath test results, even though the breath test had in fact been lawfully administered. The only impropriety under consideration was that associated with the gratuitous advice of the breath test operator which had the effect of discouraging or dissuading the respondent from exercising a legal right that might have produced evidence capable of casting doubt on the results of the breath test.
[9] (2003) 6 VR 430.

In holding that the public policy discretion could be exercised on account of the subsequent impropriety, Chernov JA paid careful regard to the nature of the statutory regime under which the breath test was administered and the importance of the respondent’s right to provide a blood test. His Honour explained at [41]:
In the circumstances, the statutory option given to a driver in the position of the respondent is an important right and the police, who are charged with the administration of this important legislation, should not use their position to dissuade or discourage such a person from exercising it…
In the circumstances, I consider that the conduct of the operator in this case, although not unlawful, was improper in the sense that it was, in the circumstances, of sufficient seriousness to warrant ‘sacrificing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end’.
Whilst acknowledging that earlier decisions had seemingly limited the scope of the public policy discretion to the exclusion of evidence illegally or improperly obtained, Chernov JA concluded that the rationale for the discretion justified its extension to cases where there was no meaningful or material separation between the illegal or improper conduct and the obtaining of the impugned evidence. His Honour said at [55]:
Thus, when the impugned conduct by the authorities takes place after the evidence has been obtained, the public policy discretion ordinarily does not arise for consideration even where it can be said that there was some connection between the conduct and the evidence … But there may be situations where the improper conduct by the law enforcement authorities so closely follows that by which they have obtained the evidence and so closely relates to the value and effect of that evidence that there can be no meaningful separation between the two aspects of their seemingly continuous conduct for the purpose of determining if the public policy discretion is enlivened …
… In this case, there was such a close connection between the breathalyser reading and the circumstances pertaining to the improper conduct that the public policy discretion could be said to have been enlivened. The statutory right given to the respondent by s 55(1) was … closely connected with the obligation to submit to the breathalyser test. Furthermore, the improper behaviour occurred immediately after the breathalyser reading was obtained and it had the consequence of enabling the police to rely only on the breathalyser certificate in the prosecution of charge 1 and to avoid the prospect of having to lead evidence of blood test results which might have contradicted the reading that was reproduced in the certificate.
In DPP v Riley,[10] a question arose as to the correctness of a decision of a Magistrate to exclude evidence of a breath test conducted by police following on from a roadside vehicle stop that was accompanied by improper conduct in the police treatment of the accused. Although the breath test itself was not illegally performed, it was contended that it was tainted by the antecedent illegality and rightly excluded.
[10] (2007) 16 VR 519.
On a Crown appeal against the subsequent acquittals, Hansen J held that the Magistrate was wrong to exclude the evidence of the breath test. Although acknowledging that the decision in Moore confirmed that the public policy discretion could be called in aid where there was such a close connection between the illegal or improper conduct and derivative evidence that the policy behind the discretion justified its application, Hansen J said at [28]:
In my view it was not open to the magistrate to decide, on the basis of the matters at the roadside, that the public policy discretion arose for consideration. As the authorities make clear, the public policy discretion only arises for consideration when the relevant evidence is procured by means of unlawful or improper conduct. In the present case, can it be said that the evidence of the breath analysis was the product of unlawful or improper conduct by police? In my view, the link between the ‘excessive conduct’ at the roadside and the obtaining of the evidence is so tenuous that it cannot reasonably be said that the evidence was obtained by means of that improper conduct … In the present case, the respondent was lawfully arrested and taken to the police station under suspicion of stealing the Commodore. After the respondent arrived at the police station, the police were still entitled to request the respondent to undergo a preliminary breath test, which they duly did. In effect, the informant’s conduct at the roadside was overtaken by subsequent events. It simply cannot be said that the evidence of the breath analysis was obtained by means of the roadside conduct. The magistrate thus erred in deciding that the discretion arose for consideration on the basis of the roadside matters.
Counsel for AS relied on R v Rondo.[11] In that case, the appellant’s vehicle was illegally stopped by police. The subsequent, illegal, search of the vehicle discovered cannabis. The appellant was detained and a search of his mother’s home was later conducted, during which a number of cannabis plants were located. The trial judge declined to exclude the evidence obtained in consequence of the search of the vehicle and the house.
[11] [2001] NSWCCA 540.
The Court of Appeal held that the trial judge had applied the conditional exclusionary rule in s 138 of the Evidence Act 1995 (NSW) erroneously because he failed to appreciate that the initial stopping of the vehicle was an unlawful act which produced a cascade of consequently unlawful acts. Because of that error and a number of other flaws in the investigative process that followed from the unlawful search, the Court of Appeal concluded that the judge’s approach to s 138 had miscarried because the trial judge had not adequately appreciated that the evidence obtained after the unlawful stop and search of the car was obtained in consequence of a contravention of Australian law.
The decision does not seem to me to support the proposition that because the search of the van being driven by AS on 1 January 2021 was unlawful, it necessarily follows that the search of the Lockleys residence was unlawful if the suspicion pursuant to which that search was conducted was based in whole or in part on information derived from the search of the van. Moreover, Rondo was decided in accordance with s 138 of the Uniform Evidence Acts which, as I have said, is not in force in South Australia. However, in the event the search of the Lockleys residence was unlawful, Rondo provides support for the contention that the illegality ought to be accumulated with the illegality associated with the search of the van, when considering whether the challenged evidence should be excluded.
An approach arguably different to that discussed in Moore and Hansen was earlier taken by the Court of Criminal Appeal of South Australia in Question of Law Reserved (No 1 of 1998).[12] There, Doyle CJ, with whom the other members of the Court agreed, held that the public policy discretion permitted the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. As Doyle CJ said at 288:
If the evidence in question was not obtained by unlawful or improper means, this discretion does not arise. It does not arise simply because the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence and from avoiding the appearance of approval by allowing the use of the evidence … In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence.
As I have already said, it is when the illegality or impropriety is the means by which the evidence is procured that the discretion arises for consideration …
[12] (1998) 70 SASR 281.
The effect of Question of Law Reserved was to suggest that the earlier decision of the Full Court of the Supreme Court in French v Scarman[13] had over‑extended the reach of the public policy discretion. In French v Scarman it had been held that the public policy discretion was justifiably exercised to exclude evidence of a breath test where the illegal or improper conduct (a failure to facilitate the defendant providing a blood sample) occurred after the breath test result was obtained.
[13] (1979) 20 SASR 333.
In R v Lobban,[14] the doubt hovering over the correctness of French v Scarman was resolved. In Lobban, Martin J, with whom Doyle CJ and Bleby J agreed, held that the circumstances considered in French v Scarman did not fall within the scope of the public policy discretion because the impugned evidence had not been obtained by or in circumstances involving unlawful or improper conduct by a law enforcement agency. The proximity of the subsequent, unlawful or improper conduct in failing to facilitate the defendant providing a blood sample was said not to have been sufficient to attract the operation of the discretionary principles referred to in Bunning v Cross.
[14] (2000) 77 SASR 24.
To return briefly to Moore, I note that Chernov JA observed that, strictly speaking, there may be no conflict between the South Australian decisions and the position taken in Victoria. Chernov JA distinguished Question of Law Reserved and Lobban on the basis that, in those decisions, the unlawful or improper conduct relied upon occurred quite some time after the impugned evidence was obtained. His Honour considered that the temporal disconnect in those cases between the obtaining of the evidence and the illegality precluded the application of the public policy discretion. His Honour went on to say at [54]:
By way of contrast, the improper conduct in this case occurred almost immediately after the breathalyser reading was lawfully obtained and…the consequences, or the likely consequences, of the impugned conduct bore on the extent and quality of the evidence that the prosecution were able to tender in support of charge 1. Thus, to that extent, it is arguable that there is no conflict between the strict decision in each of Question of Law Reserved and Lobban and the conclusion here, namely, that the public policy discretion was enlivened.
At the very least, it appears that there may be some jurisdictional tension as to whether, and if so in what circumstances, the public policy discretion can be invoked to exclude evidence that is not directly obtained as a result of unlawful or improper conduct but which has some connection to antecedent or posterior illegality or impropriety. The situation in Victoria has changed since Moore and Hansen were decided with the introduction of the Evidence Act 2008 (Vic) which contains s 138, which I have previously mentioned. I am of course bound by decisions of the Full Court or Court of Appeal of this State. Nonetheless, I will assume for present purposes that the public policy discretion can be utilised in the circumstances under consideration.
Discretionary exclusion - does the illegality of the search of the van taint the search of the house?
As I have said earlier, the search of the van was conducted on 1 January 2021. I have held that the search was unlawful because the suspicion Constable Foster genuinely held was not reasonably held. The nature of the illegality involved in the search of the van is important. It was not a case of the police conducting a search without any conceivable source of lawful authority or deliberately obstructing a defendant from exercising a legal right that might have had the capacity to call into question other evidence upon which the authorities wish to rely (such as in the breathalyser cases). Rather, it was a case of the objective insufficiency of the information available to Constable Foster to justify a search at the time, and in the circumstances, that presented to him on 1 January 2021.
The question that now arises is whether that illegality is sufficient to displace what would otherwise be the lawful exercise of Detective Barile’s GSW on the basis that he had reasonable cause to suspect that a search of the house might afford evidence of the commission of an offence.
Assuming that the public policy discretion may be exercised in respect of evidence that has not been directly obtained by means of improper or unlawful conduct, I am not satisfied that the illegality associated with the search of the van taints the lawfulness of the search of the house which I have otherwise found was conducted in accordance with s 67(4) of the SOA.
Although it is true that Detective Barile relied, in part, on the information that had been acquired by police as a result of the unlawful search of the van, I am satisfied that the significance of the connection between the two searches – and hence the illegality associated with the search of the van – is attenuated by a number of factors.
First, at the time Detective Barile executed his GSW, there was no basis upon which he could have or ought to have been apprehensive or suspicious about the legality of the van search and information derived therefrom. Indeed, Constable Foster could not have known that the search of the van would later be held to have been unlawfully conducted, not because he did not genuinely suspect that there were drugs in the van but because, in my view, the information he relied upon was too tenuous to sustain the objective limb of s 52(9) of the CSA. The information Detective Barile received was cogent and reliable and he came to rely on the information concerning the search of the van with ‘clean hands’.
Secondly, on the findings I have made, the information derived from the van search was not the only information Detective Barile had available to him although it was not unimportant information in that it provided a ‘real time’ indicator that AS had, within the preceding 24 hours, been in possession of methamphetamine. Nonetheless, there is considerable force in the suggestion that, even putting aside the van information, the ongoing investigations into AS provided a satisfactory basis for the execution of a GSW as at 2 January 2021. Having said that, it does seem clear from Detective Barile’s evidence that, but for the search of the van and the discoveries that were then made, it is unlikely that AS’s house would have been searched on 2 January 2021 for tactical reasons. Nonetheless, this is not a case where the only information available to Detective Barile was derived from an unlawful search, although even if that were the case, it would not necessarily follow ipso facto that the search of the house was tainted.
I would, in any event, decline to exclude the evidence even if I was satisfied that the antecedent illegality sufficiently tainted the search of the house. The search of the house was conducted pursuant to a lawful authority reposed in Detective Barile. Detective Barile exercised that power bona fide and on the basis of reliable and contemporaneous information that tended to corroborate a substantial body of information that had been accumulated by police over the preceding month, all of which tended to suggest that AS was actively involved in the illicit drug trade in one form or another.
The search uncovered probative and cogent evidence of serious drug and firearms offending. The separation between the illegality involved in searching the van and the existence of an independent authority, pursuant to which the search of the house was conducted, weighs heavily against discretionary exclusion. The evidence establishes that on the morning of 2 January 2021, police conducted themselves in an appropriate and careful manner. A briefing was held, during which information relating to the search of the van was conveyed. Detective Barile was allocated the role of warrant holder and properly turned his mind to the criteria against which the exercise of his GSW was to be assessed. He considered that information in combination with the external information available to him and formed the state of mind required to engage the power of his warrant. The suspicion I have held he genuinely entertained was reasonably held.
In my view, the considerations identified in Bunning v Cross and to which I referred in my primary reasons at [158] and following do not fall in favour of exclusion of the evidence. In reaching this decision, I have not overlooked the submissions of the applicants that the common law has long been protective of the limitations on the power of law enforcement authorities to enter and search private property and the intrusion that powers such as s 52(9) of the CSA and s 67(4) of the SOA effect on civil liberties. I am equally conscious that there may be a perception that upholding Detective Barile’s reliance, in part, on information acquired from an unlawful search is tantamount to allowing police to benefit from illegality. These are important considerations given the events of 1 January 2021, but I am not persuaded that such considerations require exclusion of the evidence obtained during the search of the house. Each case will of course require a fact specific analysis and in the circumstances of this case, for the reasons I have given, I am not satisfied that the exclusion of the evidence is a necessary or even justifiable response to the earlier events.
Accordingly, even if the public policy discretion can be exercised to exclude evidence that was not directly obtained by illegal or improper means, I would decline to exercise the discretion here.
The search of the house was lawful.
The applications are dismissed.