R v Castillo - [2018] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CASTILLO
[2018] SADC 80
Ruling of Her Honour Judge Schammer
20 March 2018
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused is charged with offences including trafficking in a commercial quantity of a controlled drug. The alleged offending came to light following a search of a property at Salisbury on 23 November 2016. Several days earlier police had received anonymous information that there was cannabis being grown at the property. On 21 November 2016 police attended at a neighbouring property seeking to corroborate that information and made certain observations of the property from that neighbouring property. Acting on that information, police searched the property.
The accused has applied for orders pursuant to Rule 49 seeking to exclude evidence of the search on the basis that it was unlawful, there being no admissible evidence that the neighbour gave permission for police to enter the neighbouring property, such that there was no basis for any 'reasonable suspicion' held by police prior to conducting the search.
A record of interview was conducted with the accused following the search. The accused was cautioned and stated that she did not wish to answer questions. The interview continued and the accused made certain statements to police. The accused seeks to exclude evidence of the record of interview on the basis that its admission is unfair and/or its admission will result in prejudice to her outweighing the probative value of the evidence.
Held: The search was lawful.
The accused was appropriately cautioned by police. The conduct by police in continuing the record of interview was not improper. It is not unfair to admit the evidence of the record of interview.
Application dismissed.
Summary Offences Act 1953 s 67; Controlled Substances Act 1984 s 52(9), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Rogers (2011) 109 SASR 307; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; R v Golja [2017] SASCFC 61; R v Ireland (1970) 126 CLR 321; R v Rockford [2015] SASCFC 51; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; R v Lee (1950) 82 CLR 133; R v Swaffield (1998) 192 CLR 159; R v Kageregere [2011] SASC 154; Department of Primary Industries v Duong [2013] SASC 25; R v Stafford (1976) 13 SASR 392; R v Willingham (No 2) [2012] SASCFC 104; R v Harris (No 2) (1975) 12 SASR 270; McDermott v R (1948) 76 CLR 501; Dietrich v R (1992) 177 CLR 292, discussed.

R v CASTILLO
[2018] SADC 80
Introduction

The accused, Abbey Castillo, is charged on Information dated 4 August 2017 with five counts, namely cultivation of controlled plants for sale, possessing prescribed equipment, interfering with electricity from a power system, trafficking in a commercial quantity of a controlled drug and trafficking in a controlled drug.
The charges arise from a search conducted on 23 November 2016 at premises at 14 Jago Street, Salisbury (‘the premises’) under the authority of a general search warrant held by Detective Sergeant Cartwright.
On 6 November 2017 the accused filed an application pursuant to Rule 49 of the District Court Criminal Rules 2014 seeking to exclude evidence of:-
(a)a search conducted of the premises on 21 November 2016 (‘the corroborating investigations’);
(b)a search conducted of the premises on 23 November 2016 (‘the search’); and
(c)the record of interview conducted with the accused at the premises on 23 November 2016.
Evidence was called on the voir dire from Constable Renko, Senior Constable Bennett and Detective Sergeant Cartwright.
On the voir dire, it became apparent that the basis upon which the accused sought to exclude the evidence of the search was that information relied upon by Detective Sergeant Cartwright to form the basis for any alleged ‘reasonable suspicion’ held by him pursuant to s 67(4)(a) of the Summary Offences Act 1953 (‘SOA’) was obtained unlawfully during police attendance at a neighbouring property on 21 November 2016. In the alternative it was submitted that even if Detective Sergeant Cartwright had the requisite reasonable suspicion, the Bunning v Cross[1] discretion ought to be exercised to deem the evidence obtained during the search inadmissible.
[1] (1978) 141 CLR 54.
Further, the basis upon which the accused sought to exclude the evidence of her record of interview was that it was improper for the police to continue the interview after first being told by the accused, upon being cautioned, that she had ‘nothing to say’. It was submitted that it was unfair to admit the evidence and further that insofar as the search was unlawful, this then tainted the admissibility of the record of interview.
For the reasons which follow I decline to make the orders sought by the accused and dismiss the application.
Evidence
Constable Renko gave evidence that he is a serving police officer and in November 2016 he was stationed at the Elizabeth Criminal Investigation Branch in the ‘Operation Mantle’ unit. This was a unit dedicated to investigating drug offences.
He said that at the beginning of his shift on 21 November 2016, he attended a briefing conducted by a Mr Pearce, an intelligence officer, who provided details as to a tasking for him and his partner to undertake observations at the premises in response to information received via ‘Crime Stoppers’.
Exhibit VDP1 is a printout from the SA Police Department Case Management System containing a record of the Crime Stoppers’ information, the subsequent police observations made thereafter and the result of that investigation.
By reference to that exhibit, on 16 November 2016 at 2120 hours an ‘unknown caller’ contacted Crime Stoppers and advised that there was cannabis (and a little dog) at the premises.
On 18 November 2016 at 2201 hours Crime Stoppers received another call from an unknown caller with respect to the premises. During the call, the caller stated that there was cannabis at the premises, a Caucasian couple in their mid-30s lived at the premises with one of their mothers, the occupants owned a blue Toyota ute and a white Commodore and there was a small dog at the address. The caller did not know if cannabis was being sold from the premises.
It is of note that the Case Running Sheet Report with respect to this call includes the following notation:
This information is provided by the caller in the strictest confidence for the purpose of investigation. The identity of the caller, the information provided and this document may be subject to a claim for public interest immunity…
Part of the content of both calls has been masked, presumably to ensure the identity of the caller in each instance remains confidential.
Constable Renko gave evidence that after the briefing, he and his partner, Officer Bennett, drove past the premises in a marked police car and observed a blue Ford utility in the driveway of the premises bearing registration BB656Y. He could not recall if they ran any police checks on that vehicle at that time.
He then used a ‘FLIR’ device, being a thermal imaging camera to run past the front of the property so as to detect a heat source, noting that drug cultivations often exude heat from the hydroponic lighting used. No heat source was detected.
Constable Renko said that they then knocked on the door of a neighbour’s house, spoke to the neighbour and enquired whether they could use that neighbour’s premises to conduct observations in light of the information received by police.
Counsel for the accused objected to any questions of Constable Renko directed at eliciting from him whether he and/or Officer Bennett were then given the permission of the neighbour to enter those premises on the basis of hearsay. I upheld that objection.
Constable Renko gave evidence that he and Officer Bennett entered the neighbour’s property and were in the back (side) yard of that property. From this position he could see over the fence into the premises where he observed a shed. He heard what he described as a humming noise, which sounded similar to that made by a carbon filter, coming from the shed. In cross-examination he agreed that other appliances made humming sounds, such as an air conditioner or a fridge. He also heard what sounded like a person inside the shed. He elaborated that what he heard was a ruffling sound, like plastic being moved around.
He did not see or notice anything else. He did not smell anything. He did not use the ‘FLIR’ device to ascertain whether there was any heat source in the shed, as he considered that may be unlawful. He did not jump over the fence.
Constable Renko said they spent between five to 10 minutes conducting these observations. They then spoke to the occupant of the neighbouring premises (being the property from where they were conducting these observations) and then returned to their other duties.
Constable Renko stated that he asked the occupant of the neighbouring premises if they were prepared to provide a statement and they said they would rather not. The police had no statement (in any form) from that person.
Later in that same shift Constable Renko added notes as to his observations on the Case Management System. Those notes appear on page 2 of Exhibit VDP1 and include the following:
2EH961 (Renko/Bennett) – attended address, blue Ford ute in drive way (BB656Y), nil on FLIR, accessed rear yard of neighbour, lights in rear shed on, person moving plastic around, nil smell, humming noise heard…
Subsequently the details of what was observed at the premises on 21 November 2016 were verbally conveyed by Constable Renko (or Officer Bennett in Constable Renko’s presence) to Detective Sergeant Cartwright.
On 23 November 2016 Constable Renko attended a briefing held by Detective Sergeant Cartwright and then attended at the premises to assist with a search of the property. He was the exhibits officer with respect to that search and also conducted a video walk through of the premises.
Senior Constable Bennett gave evidence that as at November 2016 he held the rank of Constable and was also stationed at the Elizabeth Police Station at Operation Mantle.
He said that on 21 November 2016 he was tasked, with Constable Renko, to attend at the premises to conduct inquiries in relation to information that had been received via Crime Stoppers that cannabis was being grown at that address.
He said that he and Constable Renko conducted a drive by of the premises in a marked police car. He believed Constable Renko was driving. They observed a blue Ford utility in the driveway of the premises. He conducted a registration check on that vehicle and determined it was registered in the name of David Castillo.
Constable Renko then conducted a ‘FLIR’ test from the police car, in front of that address, which showed no results of any heat source. This was from a position approximately 15 to 20 metres away from the shed, from the other side of the road, opposite the premises.
He said that thereafter they attended at the neighbouring property and spoke to the resident and asked whether they could conduct enquiries into the investigation. He said they then entered the rear yard of that neighbouring property through a driveway where there was a garage with a roller door.
He and Constable Renko approached the fence and observed a shed in the rear yard of the premises. He said he stood one to two metres away from the fence line. He observed some light protruding through the cracks in the shed. He heard a humming noise coming from the shed which he believed may have been coming from a carbon filter, having regard to his prior experience investigating hydroponic set-ups. He agreed in cross-examination that a variety of things could make a humming noise.
He said he also heard someone within the shed moving something around and he believed it may have been a plastic barrel or similar.
He said he had no recollection of Constable Renko conducting a ‘FLIR’ test with respect to the shed and said that he had not asked him to do so. He could not recall why.
He did not recall seeing or hearing anything else. He did not smell cannabis. Neither he nor Constable Renko jumped over the fence. He did not shine his torch into the premises. He had no recollection of hearing a dog at the premises.
Senior Constable Bennett estimated he and Constable Renko spent 10 to 15 minutes making these observations. He said they then left the neighbouring property and resumed their other duties.
Senior Constable Bennett did not make any notes of his observations on 21 November 2016 and had no recollection of accessing the information on the Case Management System with respect to the tasking, although he said that it was usual for him to receive a copy of that material.
On 23 November 2016 Senior Constable Bennett attended a briefing with his supervisor prior to conducting the search of the premises under the authority of a general search warrant held by his sergeant. He assisted with that search.
Both Constable Renko and Senior Constable Bennett agreed in cross-examination that an unknown caller making contact with police through Crime Stoppers was considered to be information from an untested source which should be treated with caution and corroborated before it was acted upon. They agreed that their observations conducted on 21 November 2016 were undertaken so as to corroborate that information, it having come from an untested source.
There was no information on the police ‘Shield’ system either verifying the likely credibility of the caller(s) or pertaining to the premises. The accused was not otherwise known to either Constable Renko or Senior Constable Bennett.
Detective Sergeant Cartwright gave evidence that as at 23 November 2016 he was a police officer holding the rank of Detective Sergeant and stationed at the Elizabeth Police Station. He was the supervisor in charge of the drug investigation unit, Operation Mantle and also the holder of a general search warrant.
On 23 November 2016 he had a conversation with Constables Renko and Bennett who had conducted static observations at the premises. He confirmed that those observations had been made with a view to corroborating information received from two Crime Stoppers’ calls, namely that there was cannabis being grown at the premises.
Detective Sergeant Cartwright said that based on the notes recorded on Exhibit VDP1 and the information he received from Constables Renko and Bennett, he formed a reasonable suspicion that there was some cannabis being grown at the premises.
He said that the information received through Crime Stoppers with respect to the premises included specific information that a couple resided at the premises, there was a blue ute and a Commodore there and they had a small dog.
Although he considered the Crime Stoppers’ information was ‘most likely accurate’, he said it was insufficient, by itself, to form the basis for any ‘reasonable suspicion’ enabling him to exercise his power to search the premises. In cross-examination he agreed that this information was from an anonymous, untested source and therefore, by reference to the Shield system, required corroboration.
He said that the information received from Constables Renko and Bennett had corroborated the Crime Stoppers’ information as they had observed a large shed at the premises, they had sighted one of the vehicles described by the Crime Stoppers’ caller(s), they had heard a humming noise and plastic being moved within the shed and the lights were on in the shed. He said humming noises were often associated with heavy duty electrical transformers and heavy duty plastic was often used to line the inside of cannabis grow rooms.
He said that although neither Constable Renko nor Senior Constable Bennett had smelt cannabis during their observations of the property, this did not affect his decision with respect to the search as the absence of a smell could indicate the crop was in a drying stage.
The search was conducted about 30 minutes after the briefing.
Detective Sergeant Cartwright spoke to the occupant, the accused, at the front door of the premises and read out the search warrant. He said there was a strong smell of cannabis coming from inside the premises, but he clarified he had already formed his suspicion as at that time.
He assisted with the search and also spoke with the other occupant of the premises, David Castillo. On 25 November 2016 he entered the results of the search on the Case Management System. Those notes appear at the bottom of page 3 of Exhibit VDP1.
He agreed that the police did not have any statement from the occupant of the neighbouring premises, although he noted that had such a statement existed, there would have been a claim made for public interest immunity with respect to such statement.
There was no evidence called with respect to the circumstances pertaining to the record of interview conducted with the accused at the premises on 23 November 2016. The video recording of that record of interview was tendered as Exhibit VDP2 and there is, in the declarations, for my use as an aid only, a transcript of that record of interview.
The accused did not give evidence on the voir dire.
The Search
The onus is on the accused to establish on the balance of probabilities that the search was unlawful.
Section 67(4)(a) SOA confers on a police officer, who is the holder of a general search warrant, power to search premises where the officer has reasonable cause to suspect that:
(a)an offence has been recently committed, or is about to be committed;
(b)there are stolen goods; or
(c)there is anything that may afford evidence as to the commission of an offence; or
(d)there is anything that may be intended to be used for the purpose of committing an offence.
There are numerous decisions which discuss the concept of what may be a reasonable suspicion, as compared to a simple suspicion, or indeed a belief.
In R v Rogers,[2] in discussing s 52(9) of the Controlled Substances Act 1984 (‘CSA’) Justice Duggan said:
It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer.
[2] (2011) 109 SASR 307, 311-312.
In R v Willingham (No 2)[3] (per Gray, Sulan and Stanley JJ) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable was as follows:
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
[3] [2012] SASCFC 104 at [10].

A number of more recent Court of Criminal Appeal cases have discussed the meaning of reasonable suspicion.
In R v Nguyen[4] the Court said:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[4] (2013) 117 SASR 432 at [21].
In R v Nguyen,[5] the Court reiterated these principles regarding what constituted a reasonable suspicion.
[5] [2015] SASCFC 7.
As such, the general approach to be taken when assessing the reasonableness of a police officer’s suspicion is to first ascertain whether the police officer held a genuine suspicion and then, based on the matters known to that officer, determine whether the suspicion was reasonable.
The suspicion must be held at the time the search is undertaken, it must attach to the specific premises to be searched and there must be a rational connection between the supporting material and the suspicion in the mind of the person thinking reasonably about the information upon which the suspicion is based.[6]
[6] R v Nguyen (2013) 117 SASR 432, 437.
Detective Sergeant Cartwright gave evidence that at the time he determined to exercise his powers under s 67 (and at the time the search was conducted) he had a reasonable suspicion that there was, or had been, cannabis growing at the premises.
He based that suspicion upon:
(a)the information contained in the two anonymous calls to Crime Stoppers; and
(b)the observations made by Constables Renko and Bennett on 21 November 2016 namely, that there was a large shed at the premises, the lights were on in that shed, they could hear a humming noise and plastic being moved within the shed and there was a blue ute at the premises (thus corroborating the information that had been conveyed to Crime Stoppers).
Detective Sergeant Cartwright acknowledged that absent the corroborating material from Constables Renko and Bennett the information received via Crime Stoppers was insufficient for him to form the ‘reasonable suspicion’ necessary to exercise his powers under s 67 SOA.
I find, and it was not the subject of serious dispute, that immediately prior to conducting the search of the premises, Detective Sergeant Cartwright had a genuine suspicion that a search of the premises may lead to the discovery of evidence of drug-related offending.
While there may be reasons, unrelated to drug offending, for there to be a large shed on premises, for the light to be on in that shed, or for a humming noise to be heard coming from a shed, this information, when viewed in the context of the reports provided by the Crime Stoppers’ informant(s), corroborated, or put another way, added weight to the likely reliability of those reports, namely that there was cannabis being grown at the premises. The presence of a light on in the shed, a humming noise and a noise of ruffling plastic is consistent with the shed being utilised to hydroponically grow cannabis.
I accept the evidence of Detective Sergeant Cartwright that the absence of either officer smelling cannabis at the time they made these observations did not otherwise impact on the suspicion he held having regard to the possibility of there being a change in the nature of any accompanying smell depending on which stage had been reached in the cultivation and/or harvesting of the crop.
The suspicion held by Detective Sergeant Cartwright was objectively reasonable having regard to the results of the investigations conducted by Constables Renko and Bennett in the context of the earlier receipt of the information contained in the Crime Stoppers’ reports.
Counsel for the accused argued that in the absence of the prosecution calling admissible evidence to prove that Constable Renko and Constable Bennett had the permission of the neighbour to enter the neighbouring property to make their observations, the search was unlawful, there being no admissible evidence to corroborate the information contained in the Crime Stoppers’ reports.
I reject that submission.
Detective Sergeant Cartwright was asked in cross-examination whether he was aware of any statement from the neighbour. His response was that he was not, but that did not surprise him because there would have been a claim for immunity with respect to any such statement.
It was not suggested to Detective Sergeant Cartwright in cross-examination that he knew, or ought to have known, at the time he made the decision to conduct the search, that there was anything unlawful about the manner in which Constables Renko and Bennett had obtained their corroborating information.
To the contrary, Detective Sergeant Cartwright’s evidence was simply that he had been told by Officers Renko and Bennett about what they had been able to observe of the premises from the neighbouring property and that the information they provided added weight to the suspicion he already had, having regard to the Crime Stoppers’ reports.[7]
[7] T 50 lines 20-32.
In R v Golja,[8] the issue before the Court of Criminal Appeal was whether the trial judge had erred in admitting evidence obtained as a result of a search on the basis that the judge was wrong in finding police had reasonable grounds to suspect in order to search the premises and wrongfully failed to exercise the discretion to exclude the evidence obtained as a consequence of that unlawful search.
[8] [2017] SASCFC 61.
It was submitted that the Detective who made the decision to exercise a general search warrant to search the address in question had insufficient information to establish reasonable cause to suspect an offence had been committed. Specifically it was submitted that information relied upon by that Detective in forming any suspicion, namely that a person whose van was searched and found to contain evidence consistent with drug trafficking resided at the address (Watts), was inaccurate, meaning the search was therefore tainted.
Stanley J noted the following with respect to the Detective’s suspicion:[9]
That suspicion was objectively reasonable on the basis of the following: the evidence of the items discovered in Watts’ van which indicated involvement in drug trafficking; the information conveyed by the interrogation of the SAPOL database that the appellant’s address was a place of interest; and Detective Vance’s mistaken understanding that Watts resided at the appellant’s address. It is not open on appeal to challenge the evidence of Detective Vance that she believed Watts was currently resident at the appellant’s address given that there was no challenge to her evidence on this topic on the voir dire. Whether the information relied upon by Detective Vance was factually accurate or admissible in evidence is not relevant to whether she suspected on reasonable grounds that a search might elicit evidence of the commission of an offence. When evaluated objectively all of those matters in combination provided reasonable grounds to suspect.
[9] Ibid at [28]–[29].
In the present case, Detective Sergeant Cartwright agreed that in the absence of the information obtained by way of corroboration from Officers Renko and Bennett he did not have the requisite ‘reasonable suspicion’ to exercise his general search warrant. Most of that information was obtained by those officers after entering the neighbour’s property, save for confirmation of the existence of the blue ute at the premises. Although this latter information in part confirmed the detail provided by the Crime Stoppers’ caller, there was no evidence that this additional information, without more, led to Detective Sergeant Cartwright forming any relevant suspicion.
I find, on the evidence, that at the time he formed the suspicion that there may have been cannabis growing at the premises, Detective Sergeant Cartwright did not know that the information upon which he was relying, was in any way tainted by any mistake or unlawfulness. In those circumstances I find that the suspicion he held at that time was a ‘reasonable suspicion’ within the meaning of s 67 SOA, irrespective of whether there was any illegality pertaining to the corroborating investigations. As such I find the resulting search was not unlawful.
If I am wrong about that, it is for the accused to establish on the balance of probabilities that the search was unlawful. While there was no evidence from the neighbour to confirm that his or her permission was given to Constables Renko and Bennett to enter that property, similarly there was no evidence to the contrary.
It was not put to either Constable Renko or Senior Constable Bennett that either of them did not have permission to enter the neighbouring property.
Further, I accept the evidence of Constable Renko that the neighbour did not wish to give a statement and I infer from this evidence and the contents of Exhibit VDP1 that the reason for this was a desire by the neighbour to keep his or her involvement in any aspect of the investigation confidential. As such I reject any suggestion, insofar as one may be made, that the prosecution’s failure to produce any such statement lends force to a submission that no permission was given by the neighbour to enter that property.
There is simply no evidence before me that the neighbour did not give his permission for police to enter his property.
It was submitted that as the accused did not know the identity of the neighbour it was impossible for her to prove the absence of any relevant permission. However, the evidence of Constable Renko was that he made his observations from the ‘back sort of side’ of the neighbour’s property. The evidence of Constable Bennett was that they entered the backyard of that property via a driveway where there was a garage with a roller door. Both gave evidence that they could see the shed at the premises from this position. As such, the precise location of the neighbouring property (and the identity of the neighbour in question) is unlikely to have been difficult to ascertain if appropriate enquiries were made.
If I am in error and the search was unlawful due to an absence of inadmissible evidence to prove that the police lawfully entered the neighbouring property to conduct their observations on 21 November 2016, I would nonetheless have determined not to exercise my discretion to exclude the evidence of the search in any event.
A general search warrant is a very powerful tool and gives police the ability to act upon reasonable suspicion without judicial oversight or approval. As the exercise of power under s 67 SOA results in significant intrusions into civil liberties, the court must carefully scrutinise the exercise of that power when it comes under judicial review.
In R v Ireland,[10] Barwick CJ stated:
…Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[10] (1970) 126 CLR 321, 335.
In Bunning v Cross,[11] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves 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.
[11] (1978) 141 CLR 54, 74.
Stanley J undertook a comprehensive analysis of the principles relevant to the Bunning v Cross discretion in R v Rockford[12] and reiterated the same in R v Golja.[13]
[12]. [2015] SASCFC 51
[13] [2017] SASCFC 61.
In R v Rockford,[14] Stanley J referred to what was stated by Deane J in Pollard v The Queen[15] with respect to the principal considerations of “high public policy” which favour the exclusion of evidence procured by unlawful conduct on the part of the police. He noted:
…it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not to be encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[14] [2015] SASCFC 51 at [33].
[15] (1992) 176 CLR 177 at 202-203.
He went on to refer to the further extension of the public policy discretion in Ridgeway v The Queen[16] wherein Mason CJ, Deane and Dawson JJ said:
[T]he considerations of “high public policy” which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
[Citations omitted]
[16] (1995) 184 CLR 19 at 31-32.
In this instance, if there was any ‘unlawfully procured evidence’ in the nature of the corroborating investigations, it was evidence of a crime that had already been committed, namely the growing of cannabis by hydroponic means at the premises.
There was no evidence that, if there was any unlawful conduct on the part of the police in entering the neighbouring property, such conduct was deliberate.
There was nothing about the police conduct which affected the cogency of the evidence so obtained.
The search revealed the presence of three grow tents in the rear shed of the premises, two used for cultivating cannabis and one for drying. Approximately 3kgs of dried product and 11 cannabis plants were located and seized. In addition the electricity meter at the premises had been tampered with. This is serious drug offending.
As stated by Stanley J in R v Golja:[17]
The discretion is enlivened by unlawful or improper police conduct. Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations. Those considerations focus on competing aspects of the public interest. While the court must be careful to protect the citizen from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations of the exercise of the search power or the result of some systemic misunderstanding by police about the limits of that power.
[17] [2017] SASCFC 61 at [35].
As I have previously stated, it was not suggested to Detective Sergeant Cartwright in cross-examination that he knew, or ought to have known, at the time he made the decision to conduct the search, that there was anything unlawful about the manner in which Constables Renko and Bennett had obtained their corroborating information. There was no evidence that in exercising his power to search, Detective Sergeant Cartwright was consciously or deliberately flouting the limitations of the exercise of his power to search. There was no evidence of any systemic misunderstanding by police of the limits of such power.
I decline to exclude the evidence of the search.
The record of interview
The record of interview was conducted with the accused at the premises at 2045 hours on 23 November 2016, shortly after the search.
The interview was conducted by Constable Benjamin Philps and was video recorded.
At the time of the interview the police had not determined to arrest the accused and she was reported, not arrested, with respect to the alleged offending.
It was not submitted that at the time of the record of interview the accused was under apprehension or ‘defacto arrest’ such that the provisions of s 79A SOA applied.
Rather, it was submitted that upon the accused informing police, near the commencement of the record of interview that she ‘had nothing to say’, the interview ought to have been terminated immediately thereafter. It was submitted that the continuation of the record of interview thereafter resulted in unfairness to the accused, such that the record of interview should be excluded from the evidence.
It is for the party seeking to exclude the evidence to establish on the balance of probabilities the reason or reasons for exclusion.
As was stated by the majority in R v Lee:[18]
The discretion rule represents an exception to a rule of law, and we think that it is for the accused to bring himself within the exception. We have called attention to the great breadth of the common law that a statement is not admissible unless it is proved to be voluntary. If it is proved to be voluntary then it is prima facie admissible. It is admissible as a matter of law unless reason is shown for rejecting it in the exercise of the discretion.
[18] (1950) 82 CLR 133, 152-153.
The onus is on the prosecution to establish on the balance of probabilities that any confession made by the accused in the record of interview was made voluntarily.[19]
[19] R v Stafford (1976) 13 SASR 392.

The notion of ‘voluntary’ does not mean ‘volunteered’ but rather ‘made in the exercise of a free choice to speak or be silent’.[20]
[20] R v Lee (1950) 82 CLR 133 at 149.
The record of interview commenced with Constable Philps asking the accused to state her name, date of birth and address, to which she responded.
Immediately thereafter Constable Philps told the accused that he was going to ask her some further questions and ‘you’re not obliged to answer them, but anything you do say will be recorded and may be used in evidence. Do you understand?’
The accused replied ‘Yep. I have nothing to say.’
The following exchange then occurred:
QYep. So you are saying straight off the bat that you don’t want to answer questions?
AYep.
QAlright. What I’m going to do then is I’m just going to tell you the allegations.
AMmm.
QAlright. So it’s alleged police have attended your home address, 14 Jago Street, today under the authority of a general search warrant. We’ve conducted a search. We’ve located about 12 cannabis plants in the rear shed. That’s including three that were dead or not in pot plants.
AOkay…I don’t know of anything to do with quantities scales or nothing.
QLike I said
ASo
QThis is just the allegation okay?
AYep
Thereafter Constable Philps informed the accused of what else had been found during the search.
He then asked her ‘Is there anything at all you wish to say’ to which she replied no and she then said ‘I don’t have to say anything do I?’ Constable Philps replied ‘No, you don’t have to. I’m just asking if you want to’ and then realised he had forgotten to inform her of the fact the electricity meter had been interfered with.
Constable Philps then explained to the accused that she was going to be reported[21] and outlined the details of the offences for which she was to be reported. He also explained that being reported meant that she was not going to be arrested and would receive a summons to attend court.[22]
[21] Transcript of record of interview line 43.
[22] Transcript of record of interview lines 57-59.
Thereafter the accused engaged in a conversation with Constable Philps, without prompting, wherein she told him she had no record and made certain admissions to him in terms of owning smoking paraphernalia, she said she knew of some cannabis in the house but never stepped into the shed, she talked about some locks on the shed and on the front bedroom doors and admitted to smoking the ‘occasional bong’.
Towards the conclusion of the record of interview, Constable Philps restated that if the accused did not wish to answer questions then he wouldn’t ask any.
As is apparent from those cases wherein there has been comprehensive analysis of the unfairness discretion, the focus is generally on the effect of the circumstances on the mindset of the person being interviewed and whether in the circumstances it can be said that the accused has made an informed choice whether or not to speak to police, including whether that person had the capacity to choose.[23] Further, unfairness in this context is concerned with the right to a fair trial and whether that right may be jeopardised by the circumstances in which a statement or confession is made.
[23] R v Swaffield (1998) 192 CLR 159; R v Kageregere [2011] SASC 154; Department of Primary Industries v Duong [2013] SASC 25.
The submission made by the accused was that particularly in the case of the accused, being a person with no prior criminal history, that upon being told by the accused that she did not want to answer questions, the police should have ended the interview. It was submitted that anything said by the accused to police after she informed them she had nothing to say[24] should be excluded as being unfair as it was improper for police to continue questioning thereafter. Reference was made to relevant authorities supporting that submission being R v Stafford[25] and R v Harris (No 2).[26]
[24] Transcript of record of interview line 8.
[25] (1976) 13 SASR 392.
[26] (1975) 12 SASR 270 at 273-4.
I have considered those authorities and relevant authorities which preceded them.
I note what was said in McDermott v R:[27]
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he has been overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity or sustained and undue insistence or pressure, it cannot be voluntary…
[My emphasis]
[27] (1948) 76 CLR 501, 511.
I have watched the recording of the record of interview. It was conducted very informally and in a non-threatening or aggressive way. While the accused appears somewhat anxious, and at times laughs nervously, she does not in any way appear to be overborne or intimidated by Constable Philps.
The accused was appropriately cautioned by Constable Philps.
The accused then informed Constable Philps that she did not intend to answer any questions. What occurred thereafter was not a police interrogation, as was the case in R v Kageregere,[28] rather it was a recorded discussion containing very little, if any, questioning as such. It is quite clear from what was said by Constable Philps that he was fully aware of the accused having exercised her right to silence and deliberately did not ask questions of her, instead explaining to the accused what had been found during the search, what would be alleged against her and the offences for which she would be reported.
[28] [2011] SASC 154.
The accused was clearly aware of her right to silence. When asked by Constable Philps if there was anything she wanted to say, her response was ‘I don’t have to say anything do I?’ Constable Philps confirmed she did not have to say anything.
This is not a case where there was continued questioning or interrogation by police geared towards any undermining of the accused’s right to silence.
Having regard to all the circumstances I am satisfied the accused’s utterances to police were made voluntarily and I am not satisfied that there was any impropriety on the part of Constable Philps in continuing the record of interview in the manner that he did. The record of interview is, prima facie, admissible.
That being said I must still consider whether to admit the evidence will result in unfairness to the accused in the sense that the trial would be unfair.
The actual unfairness on an accused person is a vital consideration in the exercise of the unfairness discretion. The onus is on the accused to persuade me to exclude the evidence. The accused did not give evidence as to what unfairness she will suffer if the evidence is not excluded.
Counsel for the accused argued, in effect, that the accused’s lack of any prior criminal history was a relevant consideration. While this may be so, the accused was cautioned more than once in terms of her right to silence but elected in any event to make certain unprompted comments to police, which included admissions as to her ownership of drug paraphernalia and knowledge of cannabis in the house. However when making those admissions, the accused also made statements which were exculpatory, namely that she never went in the shed and it was locked.
I note what was said by Gaudron J in Dietrich v R:[29]
… Speaking generally, the notion of “fairness” is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury. …
But what is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values. … And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.
[29] (1992) 177 CLR 292 at 363-364.
Having regard to all of the circumstances, I am not satisfied that it is unfair to admit what the accused said in her record of interview.
The accused was appropriately cautioned by Constable Philps.
The evidence is clearly probative. I am not persuaded that any prejudice arising from the admission of the evidence outweighs its probity.
I decline the application to exclude the record of interview from evidence.