R v CAVALLARO - [2011] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAVALLARO
[2011] SADC 17
Ruling of His Honour Judge Cuthbertson
24 February 2011
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
ILLEGALLY DESTROYED EVIDENCE - PARTICULAR CASES - ILLEGAL DESTRUCTION OF EXHIBITS
Police locate cannabis during drug search of derelict premises – destruction of seized property – keeping samples that provide a true representation of the nature of the property – illegal destruction - failure to take appropriate samples
HELD: There was a failure of the prosecution to take appropriate samples but evidence not excluded in exercise of discretion.
Controlled Substances Act (1984) s 52A, s 52E; Controlled Substances (General) Regulations (2000) , referred to.
R v Lobban (2000) 77 SASR 24, considered.

R v CAVALLARO
[2011] SADC 17
The issue

This issue relates to alleged illegality in relation to the destruction of the cannabis located in the premises at 62 Grand Junction Road, Rosewater by the prosecution and the failure to keep appropriate samples as required.
The accused is charged with Cultivating Controlled Plants for Sale contrary to s 33B(2) of the Controlled Substances Act 1984. During the investigation police seized plants alleged to be cannabis plants from premises at 62 Grand Junction Road. A total of 26 cannabis plants were seized.
Constable Trudie Pursche was designated Exhibits Officer for the investigation. She took what she describes as eight “snip and save” samples from the cannabis plants. She took one sample for every three cannabis plants which included samples from each of the three cannabis plants. There were two larger cannabis plants which had been harvested from which no samples whatsoever were taken.
It is agreed between the parties that the plants themselves have since been destroyed.
The defence allege a breach of s52E of the Controlled Substances Act which provides what must be done with seized property pending the resolution of proceedings for an offence against the Controlled Substances Act relating to that seized property.
Section 52E(1) requires that seized property must be held pending proceedings for an offence against the Act relating to that property.
Section 52E(2) provides that if seized property is a controlled plant (which cannabis is) the Commissioner of Police may direct that the property be destroyed.
In particular s52E(6) provides that regulations may make provision relating to the taking of samples of seized property and analysis of those samples.
Section 52E(4) provides relevantly as follows:
If a charge is laid, or is to be laid, for an offence in relation to property referred to in sub section (2)
(a) samples of the property that provide a true representation of the nature of the property must be taken and kept for evidentiary purposes; and …
The defence allege that there has been a breach of this provision in that samples of the property providing a true representation of the nature of the property have not been kept.
The regulations under the Controlled Substances (General) Regulations 2000 provide as follows:
10—Taking of cannabis samples (section 52E(6))
(1)For the purposes of section 52E(6) of the Act, where samples of cannabis are to be taken, they must be taken as follows:
(a)     in the case of a crop of growing or newly harvested plants consisting of
(i)     …
(ii)    …
(iii)     21 to 100 plants—at least 10 samples must be taken;
(iv)     …
(b)     …
(2)Each sample must be separately packaged and identified.
(3)For the purposes of this regulation —
samples, in relation to plants, means —
(a)     if the plants are immature (that is to say, they do not have any fully developed leaves) the plants themselves;
(b)     if the plants are mature, a fully developed leaf or flowerhead (taken from separate plants if more than one sample is required).
It is the defence contention that there has been illegality in the following respects:
(1)    There has been a failure to comply with s52(E)(4) in that samples of the property that provide a true representation of the nature of the property have not been taken and kept for evidentiary purposes.
(2)    There being 26 plants, there should have been 10 samples taken at least, in accordance with regulation 10(1)(a)(iii) of the Regulations.
(3)    In relation to immature plants, the plants themselves should have been kept, in accordance with regulation 10 (3) “samples” (a).
(4)    In the case of the plants that are mature a fully developed leaf or flower head (taken from separate plants if more than one sample is required) should have been taken, in accordance with regulation 10 (3) “samples” (b).
The regulations use the phrase “must be taken” rather than ‘may be taken’ or ‘should be taken’. Nevertheless, the failure to comply does not necessarily mean that the evidence must be excluded.
In R v Lobban (2000) 77 SASR 24 the Full Court had to contend with a similar argument.
The relevant provision concerning the destruction of seized cannabis at the time was in s52A of the Controlled Substances Act.
(1) Section 52A at the relevant time read as follows:
Power to destroy cannabis
52A (1)Where cannabis is seized by a member of the police force under this Act or any other Act or law the Commissioner of Police may cause the cannabis to be destroyed, whether or not any person has been or is to be charged with an offence relating to it.
(2)Cannabis may be destroyed at the place at which it is seized or at any other suitable place.
(3)Before cannabis is destroyed, samples of it must be taken and kept for evidentiary purposes in accordance with the regulations.
(4)If a charge is laid, or is to be laid, for an offence in relation to cannabis of which samples have been taken under this section, the defendant must be given written notice of his or her right to have part of the sample analysed by an analyst (see section 53).
(5)Possession of all samples taken under this section must remain at all times within the control of the Commissioner of Police or a nominee.
In Lobban’s case no samples were taken and kept in accordance with the regulations before the cannabis was destroyed and the Crown therefore conceded that the destruction was not carried out in accordance with s52A and was therefore unlawful.
The Full Court held that the question of compliance or non-compliance is to be dealt with in terms of what is described as a general unfairness discretion rather than in terms of the Bunning v Cross discretion which was held to be referrable only to propriety in obtaining the evidence.
The nature of this discretion is described by Martin, J in whose judgment Doyle C, J and Bleby, J concurred as follows:
Nevertheless, for these purposes the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of “the rights and privileges of the accused”, “which rights include procedural rights” (pp 189 and 197). Both discretions look “to the risk that an accused may be improperly convicted” (p 189). If the addition of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and the extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The Court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct in the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded…
I note that a bench of five judges declined the opportunity to revisit R v Lobban in the case of Police v Hall (2006) 95 SASR 482.
In this case I accept the evidence of Trudie Pursche that the destruction of the cannabis and retention of samples was not a deliberate attempt on her part to circumvent the provisions in the Act in relation to retention of exhibits but rather arose out of ignorance of the relevant provisions.
I agree that it is surprising that someone who is deputed to work on what is described as “Operation Mantle”, a police campaign in relation to cannabis production and one who is deputed to be the Exhibits Officer should not receive training on the very obvious points necessary to perform that job including as to destruction of seized material.
However, it is necessary to look at the particular breaches to see whether they have caused any unfairness to the accused.
The simple issue at trial to which this issue can only be relevant is whether the plants growing in the premises at 62 Grand Junction Road were proved to be cannabis plants. There were 26 plants and 8 samples were taken constituting samples from groups of 3 plants. Thus 24 of the plants were sampled, although samples from groups of 3 plants were intermingled and therefore it became impossible to fairly determine the identity of each sample as it was comprised of samples from 3 separate plants.
The offence is committed regardless of how many plants were the subject of cultivation.
In my view the sampling of this number of plants does however provide a true representation of the nature of the property and thus there is no breach of s52E(4)(a) of the Controlled Substances Act. It cannot be said that the fact that 8 and not 10 samples were taken of 24 and not 26 plants affects proof of whether there were 24 or 26 cannabis plants growing.
There were 26 plants and only 8 samples taken and thus prima facie there has been a breach of Regulation 10 (1)(a)(iii). But in fact each sample contained samples from 3 plants and thus in fact samples from 24 were taken. It is just that they have been intermingled into 8 separate identifiable samples.
I do not consider that that breach has caused unfairness to the accused. The onus is on the accused to show how he has been unfairly prejudiced and when the question is whether the plants, or some of them, are cannabis then I do not see that any prejudice has been suffered.
There is evidence, albeit of dubious quality coming from Pursche, a non expert, that 8 of the plants were mature. “Samples” in relation to such plants means:
…(b)if the plants are mature, a fully developed leaf or flowerhead (taken from separate plants if more than one sample is required).
There is no evidence before me as to whether a particular sample is unable to be identified as cannabis for the reason that the plants themselves have not been retained but only leaves which may not be fully developed. In any event I cannot see that any prejudice is caused to the accused when one considers that the question is whether he was involved in the cultivation of cannabis plants.
It is not clear to me on the evidence whether there has been a breach of sub paragraph (b) of the requirement in relation to “samples” namely that “if the plants are mature, a fully developed leaf or flowering head (taken from separate plants if more than one sample is required).”
I simply do not know whether fully developed leaf or flower head has been taken or not. As the onus is on the defendant this has not been established.
I should say that if I am wrong about that and, if it is the case that in relation to mature plants fully developed leaf or flower head has not been taken, I would not find unfairness to the accused. Again I cannot see how the failure causes unfairness to the accused given the question is whether there were cannabis plants growing.
I have also considered whether a combination of the breaches would constitute unfairness. In my view it has not been established that any combination of the breaches of s52E and the Regulations would constitute unfairness to the accused.
Accordingly, I decline to exercise my discretion to exclude evidence being led by the prosecution of the finding of plant material and the identification of that plant material as cannabis.
I record that I have considered the fact that the charge of Cultivating Controlled Plants for Sale contains an allegation that the accused cultivated a Commercial Quantity of Controlled Plants.
A Commercial Quantity requires proof that there be at least 20 plants.
In this case I am told there were 26 plants. If one is to exclude the 2 plants from which samples were not taken, namely the 2 larger plants, one is still left with more than 20 plants.
It has not been established to me that any of the failures to comply with the requirements as to destruction of seized cannabis plants would cause unfairness to the accused in having the number of plants found to be the subject of the cultivation at less than 20.
I decline to deny the prosecution the fruits of the search of the premises at 62 Grand Junction Road.