R v Atkinson

[2004] SASC 253

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ATKINSON

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)

18 August 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - GENERALLY

Application for leave to appeal against conviction - appellant found guilty by jury of possessing cannabis for sale - whether items found on appellant's property should have been excluded by the trial Judge - whether the warrant under which property seized invalid - whether the power in the warrant on which the police relied was validly conferred - application dismissed

Supreme Court Criminal Appeal Rules r 15(8)(b); Summary Offences Act 1953 (SA) s 67, s 67(2), Schedule 1, s 67(4)(a)(ii), referred to.

R v ATKINSON
[2004] SASC 253

Court of Criminal Appeal :         Doyle CJ, Besanko and White JJ

1. DOYLE CJ       This is an application for leave to appeal against a conviction.

2. Mr Atkinson was found guilty by a jury in the District Court on two counts of possessing cannabis for sale.  The amount of cannabis involved was approximately 6.5 kg.

3. A Judge of this Court granted leave to Mr Atkinson to appeal on grounds 4 and 5 in his notice of appeal.  The Judge refused leave to appeal on grounds 1, 2 and 3.  The applicant has requested that his application be considered by the Full Court.

4. The Full Court has directed, under Supreme Court Criminal Appeal Rule 15(8)(b), that the application be listed for oral argument.  We have now heard submissions on the application.  On the hearing of the application, the application was narrowed to limit it to grounds 1.1 and 1.2 in the Notice of Appeal.

5. Ground 1 is to the effect that evidence of items found at Mr Atkinson’s property should have been excluded.  The argument is that the warrant under which the property was seized was invalid or, alternatively, that the particular power in the warrant on which the police relied was not validly conferred.

6. The warrant in question was held by Detective Weeding. It is a general search warrant issued under s 67 of the Summary Offences Act 1953 (SA). That section provides by s 67(2) that the warrant must be in the form of schedule 1 to the Act or in a form to the same effect. The warrant was in the form set out in schedule 1.

7. The submission is that sub-paragraph (b) of the warrant, which gives power to search if there is reasonable cause to suspect that there are any goods in the relevant place obtained by an offence, is beyond power. The point taken is that this provision in the warrant does not conform with s 67(4)(a)(ii) which refers to stolen goods rather than goods, obtained by an offence, the words used in the warrant.

8. I do not agree that the warrant is invalid.  In my opinion it is not arguable that it is invalid.

9. There may be an issue as to the precise scope of the warrant having regard to the disconformity between s 67(4)(a)(ii) and the terms of the schedule, that is paragraph (b) of the warrant in particular. But the schedule is as much a part of the enactment as is s 67. I fail to see how it can be said that a warrant in the precise terms authorised by Parliament is invalid.

10. In any event, the police officer gave evidence that he had reasonable cause to suspect there was a commercial quantity of cannabis on the premises. That belief would have authorised a search of the premises under other parts of the warrant, and under other sub-paragraphs of s 67.

11. In my opinion, for what it is worth, the other parts of the warrant and the other sub-paragraphs of s 67 appear more relevant to the circumstances than the particular sub-paragraph which has been subjected to scrutiny in this application. The evidence that the police officer gave was sufficient to support the reliance by him on the use of the general search warrant. It is not reasonably arguable to the contrary.

12. Therefore, I consider there is no reasonably arguable ground that the search warrant was invalid or that the search was illegal.

13. In any event, the Judge ruled that even if the particular provision of the warrant relied on was invalid, he would not have exercised his discretion to exclude the evidence. That conclusion does not appear to have been challenged but, in my opinion, again the conclusion is not reasonably open to challenge. There was a clear basis for the Judge to make the decision that he made. The problem, to the extent there is a problem, lies in the disconformity between the terms of the warrant in the schedule and the provisions of s 67. That is not a matter that can, in any sense, be laid at the door of the police officer in question. Nor can it be said the police officer was guilty of any misconduct or, in a sense, of any error. The police officer proceeded in accordance with the warrant which was in the terms required by the Act. Therefore, in my opinion, it is not reasonably arguable that the Judge erred in the exercise of his discretion.

14. For those reasons I would refuse leave to appeal on ground 1 and also as a matter of form on grounds 2 and 3, argument not having been presented in support of them.

15. BESANKO J         I agree with the order proposed by the Chief Justice and his reasons.

16. WHITE J               I agree with the order proposed by the Chief Justice and with his reasons.

17. DOYLE CJ           Accordingly, the order of the Court is leave to appeal be refused on grounds 1, 2 and 3