R v CAVALLARO - [2011] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAVALLARO
[2011] SADC 15
Ruling of His Honour Judge Cuthbertson
24 February 2011
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
- ILLEGAL SEARCH
Police locate cannabis during drug search of derelict premises – general search warrant used to search accused's premises next door – implied licence to enter premises – no clear basis established as to when and why general search warrant activated.
HELD: Prerequisite suspicion not found to be present – search of accused's permises illegal – fruits of search excluded in exercise of discretion.
Controlled Substances Act (1984) s 33B(2), referred to.
Wheare v Police [2008] 253 LSJS 99; Plenty v Dillon (1991) 171 CLR 635, discussed.

R v CAVALLARO
[2011] SADC 15
The Charge

The accused has pleaded not guilty to a charge of Cultivating Controlled Plants for Sale, contrary to s33B(2) of the Controlled Substances Act (1984).
The Circumstances
The case for the prosecution is that on 30 September 2009 police officers conducted a raid on premises at 62 Grand Junction Road, Rosewater. The premises are a derelict corner shop and police had information that drugs were to be located inside the premises.
Police attended at approximately 8.50 am and parked in Canning Street, Rosewater around the corner from the subject premises. At the relevant location Grand Junction Road runs in an East / West direction and Canning Street runs in a North / South direction with its northern end terminating on the corner with Grand Junction Road. The premises are located on the southern side of Grand Junction Road and on the western side of Canning Street.
The officer in charge of the investigation was Detective Sergeant McCoy who was the possessor of a general search warrant. In the course of the investigation police located approximately 26 cannabis plants in the premises at 62 Grand Junction Road in the process of hydroponic cultivation.
At the rear of the premises at 62 Grand Junction Road are the premises of the accused, a house property at 43 Canning Street. The premises at Canning Street abut onto the rear of the premises at 62 Grand Junction Road.
Police noticed cameras located on the premises at 43 Canning Street, at least one and probably two of which appeared to be pointing in the direction of the rear of 62 Grand Junction Road.
Inside the premises at 62 Grand Junction Road the police had located monitoring devices including a baby monitor which I take to be the sort of device that is placed in a room to detect if a baby cries and which transmits by radio to a receiver in another room.
The prosecution case is that due to the presence of the cameras on the premises at 43 Canning Street they decided to speak to the occupant.
Initially the police case on the depositions was very clear. Detective Sergeant McCoy in his declaration said that he was in charge of the operation and the possessor of the general search warrant whereby entry was gained into the premises at 62 Grand Junction Road, Rosewater.
Having had pointed out to him the presence of the cameras he and Constable Nazar went to 43 Canning Street with a view to speaking to the occupants concerning the premises at 62 Grand Junction Road. Upon walking past a bedroom window they both observed a baby monitor on the mantel piece in the bedroom which was similar to the baby monitor located next door at 62 Grand Junction Road where the cannabis had been found.
Having made that observation on the way to the front door, to enquire of the occupant, he formed the suspicion that the occupants of this premises may have had some involvement with the cannabis located at 62 Grand Junction Road.
Claiming to have a reasonable suspicion that evidence might be obtained inside the premises at 43 Canning Street of the commission of an offence and there being no response by any occupant he authorised forced entry which was effected using the powers of search provided by the general search warrant.
Having entered the premises at 43 Canning Street police located the monitor that they had seen and confirmed that it was connected directly with the premises at 62 Grand Junction Road where the cannabis was growing. They also located a surveillance system whereby the cannabis growing rooms were under observation by the occupants of the premises at 43 Canning Street.
At that stage the case seemed to me a fairly simple one. Police, while exercising their implied authority to go to the front door and speak to the occupant had lawfully come upon incriminating evidence which caused them to use the general search warrant to search the premises.
When I was about to deliver my ruling Mr Retalic, of counsel, indicated that he had received from the prosecution some videos and a hard drive containing views of the police attendance at his client’s premises. He requested time to inspect the videos and hard drive.
Thereupon, Mr Retalic requested that the voir dire be re-opened and that the police be recalled for further cross examination.
I agreed to Mr Retalic’s request and viewed the camera views from the hard drive showing aspects of the police attendance and I permitted the recall of the police officers together with other police who had not been called at the initial voir dire enquiry.
In his evidence on the first occasion Detective Sergeant McCoy had given evidence consistent with his statement:
QWho was that?
AThat was Constable Nazar, and as a result of that we attended at that premise and as we were going to the front door you could see through the bedroom window of the residential premise. (TP6)
The consistency became clearer:
QSo there was no question at that stage of you invoking your general search warrant, it was just an enquiry that you might make of any neighbour?
ACorrect.
QIt was when your man, Mr Nazar, Constable Nazar, pointed things out to you and saw a similarity between the baby monitors that the penny dropped and you thought there might be a connection here, there might be some evidence and so you invoked your general search warrant.
AIt sounds reasonable, yes.
QIs that what happened?
AYes, that’s what happened.(TP18 L11)
The only witness who can throw light on this issue is Constable Frank Nazar. In his statement he said as follows:
I then advised McCoy of my observations [concerning the cameras located at 43 Canning Street] and attended the address in company with Cox and McCoy to investigate the purpose of the two cameras I had located. I attended the address under the authority of a general search warrant held by McCoy…I observed through the window of the master bedroom. I noticed a baby monitor which resembled one that I had previously seen within 62 Grand Junction Road, I was in company with McCoy when I observed this baby monitor.
This account seems me to be consistent with the account McCoy had initially given. When Constable Nazar said “I attended the address under the authority of a general search warrant held by McCoy”, I did not take that to mean that the warrant had been activated. I regarded it as merely loose language as Nazar would not know of his own knowledge when McCoy formed the necessary belief and determined to use his powers under his general search warrant.
The position was clarified somewhat in evidence. In cross examination Nazar said:
QAs far as you were concerned, was that what you were doing?
AAs far as I was concerned I had gone next door with Detective Sergeant McCoy under his general search warrant. (TP30 L2)
He continued as follows:
ANo, I wasn’t searching at that stage, no.
QWhat were you looking through the window for?
ATo see if there was anyone there. I think another constable was at the front door, I was peering through the window to see if anyone was home.”
When Sergeant McCoy, upon recall, was shown the video and then asked further questions his evidence changed somewhat.
QSo before the door was forced how many times do you recall police officers going into 43 Canning Street?
AOn a couple of occasions that I am aware of.
QWhen were they?
AOne, to make enquiries in relation to the owners of the premises.
QThat was the occasion that the door was forced, wasn’t it?
AIt wasn’t. No, the officers had gone over there before to make enquiries to find out who the owner of the house was so that we could find out whether there was any connection. That was my understanding.
QSo which officers went over?
AConstable Nazar and Constable Puyenbroek.
QAnd what time approximately did they go over? How long before the door was forced?
ANo, I couldn’t tell you.
QAre we talking about a minute or two?
ANo, we are probably talking about 20 minutes, I suppose.
Q20 minutes?
AYes, I would have thought it was about that long. It might have been a little bit shorter.
QAnd what information did you get back from those premises: that there was nobody home?
ACorrect.
QSo why were you going there to make an enquiry of the occupants if you believe there was nobody home at about 9.40 am?
AI was going over there at that stage to get into the house when I went there.
QSo you were told about the baby monitor by Puyenbroek and who else?
AConstable Nazar.
QAnd that was when in relation to your visit to try and get in: well before that.
AThat’s what I understood it to be, yes.” (TP201)
Later the cross examiner asked the question,
QYou were asked why you went over shortly before 9.40 when you gave evidence last time and you said it was to make enquiries of the occupants.
ANo, I don’t recall saying that because I was –
QYou don’t recall saying that?
ABecause I was aware that when I went across to the premises I knew there was no-one home.”
Later the questioner asked:
QJust bear with me. I am just trying to find the evidence you gave on the last occasion – p. 6. You were talking about the cameras and saying that you could see them from the back porch of the business premises and you were asked by Mr Healey ‘And they were affixed to the roofline of 43 Canning Street, is that correct?’ A. ‘That is correct’ You go on to say that they were pointed out to you by Constable Nazar and you say ‘As a result of that we attended the premises and, as we were going to the front door, you could see through the bedroom window of the residential premises’. You went on to say you had to walk past the main bedroom to get to the front door and you could see a baby monitor. Do you recall saying those things?
AI do but that’s not quite correct because I knew, when I went over there, that there was no-one at home. (TP202)
Upon recall Constable Nazar said:
Q…your position is that there was no searching conducted before entry was gained through the front door of 43 Canning Street pursuant to Sergeant McCoy’s warrant, no search had taken place of Canning Street up to that point.
ANot that I recall, not that I was involved in.” (TP176)
Unfortunately, Constable Nazar cannot help directly in relation to the state of mind of McCoy who held the general search warrant.
Mr Retalic’s first point was that officers were seen to go onto the premises at 43 Canning Street immediately upon arrival. Mr Retalic was making the point that the police officers knew that when they arrived that the owner of 62 Grand Junction Road was the occupier of the premises at 43 Canning Street.
I reject that suggestion entirely. I accept the police evidence that they did not, when they commenced the raid, have any information that the premises at 43 Canning Street had any link to the premises at 62 Grand Junction Road the latter being the premises in respect of which they had received information.
The explanation for the police officers being seen to go down the driveway of 43 Canning Street, which I have no hesitation in accepting, was that they wished to be in a position to see or intercept any occupants of 62 Grand Junction Road who might flee from the backdoor when police commenced their raid.
If this was a trespass by the police then I would regard it as trivial and would exercise my discretion to allow the subsequent evidence of the search of the premises at 43 Canning Street.
There is, however, a more fundamental objection.
The video evidence shown at the voir dire clearly shows that the search of the premises at 43 Canning Street had commenced prior to the breaking down of the front door.
The initial prosecution case was that the reasonable suspicion arose immediately before the breaking down of the front door. This came from Detective Sergeant McCoy and others, observing a baby monitor through the bedroom window while on the way to the front door to make enquiries of the occupants. The baby monitor was similar to the baby monitor at 62 Grand Junction Road. This demonstrated a link between the two premises justifying the forcible entry using the general search warrant.
It is clear to me now, however, having viewed the camera evidence, that the search commenced at an earlier stage as a police office is seen approaching the shed in the rear of the premises at 43 Canning Street attempting to gain entry by keys which I was informed in the course of the voir dire hearing came from the premises at 62 Grand Junction Road.
The clear impression I had from the holder of the search warrant from the first voir dire was that the police entered the premises at a time when they viewed the baby monitor through the window while making a genuine enquiry of the occupants concerning the premises at 62 Grand Junction Road. Clearly if this were the case there would have been an implied right of entry and thus no trespass at the time of locating the evidence to give them the requisite reasonable suspicion.
The law in relation to implied licence to enter is dealt with concisely in the judgment of Gray J in Wheare v Police (2008) 253 LSJS 99 at para 22,
22In Halliday,¹⁹ the High Court recognised that an entry on or invasion of private property will not constitute a trespass if the entry or invasion is by leave of a licence or some other lawful authority or excuse. Whether there is an implied licence or not is a question of fact. ²⁰
23In the joint judgment of Gaudron and McHugh JJ in Plenty,²¹ their Honours said:
The policy of the law is to protect the possession of property and the privacy and security of its occupier ... A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises ... Consent to an entry is implied if the person enters for a lawful purpose. In Robson v Hallett [[1967] 2 QB 939 at 951] Lord Parker CJ said:
‘the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.’
This implied licence extends to the driveway of a dwelling house ... . [Emphasis added]
24The determination of the existence and scope of a licence to enter was discussed in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ in Halliday:²²
While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked: cf Edwards v Railway Executive [(1952) AC 737 at 744]. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it ... Nor, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house. A passer-by is not a trespasser if, on passing an open driveway with no indication that entry is forbidden or unauthorized, he or she steps upon it either unintentionally or to avoid an obstruction such as a vehicle parked across the footpath. Nor will such a passer-by be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it or to lead away an errant child. To adapt the words of Lord Parker CJ in Robson [[1967] 2 QB 939 at 950], the law is not such an ass that the implied or tacit licence in such a case is restricted to stepping over the item of property or around the child for the purpose of going to the entrance and asking the householder whether the item of property can be reclaimed or the child led away. The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property. [Emphasis added]
If I was able to accept the evidence that police officers, while walking to the front door to enquire of the occupant of 43 Canning Street concerning the premises at 62 Grand Junction Road and the presence of the cameras, and in the course of doing that they looked in through the front window of the bedroom, which window it was necessary to pass to get from the road to the front door, I would have had little hesitation in holding that their presence at that time was lawful pursuant to the principle of implied licence and that their observations of the baby monitor through the window were sufficient to found a reasonable suspicion to enable the use of the general search warrant by Detective Sergeant McCoy.
I would have done so notwithstanding Mr Retalic’s complaint that it is not possible to see into the bedroom through the window at least on a casual look. I undertook a view of the premises for the purposes of this voir dire as requested by the parties. Mr Retalic of counsel requested that I perform the task of looking in the bedroom window and using that as evidence on the voir dire. I had some reluctance about performing that task on the view and using it as evidence but in the circumstances it will make no difference to my ruling in this matter. I accept the officers’ claim that they were able to see the monitor through the window. My attendance on the view gives me no cause to doubt that acceptance as I find that, although the sun reflects from the window pane, by simply raising one’s hand and creating a shadow from the sun one is able, reasonably clearly, to see into the bedroom.

The camera views on the hard drive that I was shown during the course of the second voir dire, or the reopened voir dire, clearly show however that the search had commenced before the officers had attended the front door with a view to knocking on it with a view to speaking to the occupant. Clearly police were searching the outside of the premises and trying to enter the shed.
When he was recalled to give evidence Detective Sergeant McCoy gave a different version to that in his statement and when he first gave evidence. His later version was that officers had conveyed to McCoy while he was at 62 Grand Junction Road that there was no-one home at 43 Canning Street and that when he went over there he went with a view to exercising his search warrant because of the information that he had already received that the baby monitor was there.
It is difficult to say but the probabilities are that the search had already commenced, whether Detective Sergeant McCoy was informed about the baby monitor while he was at 62 Grand Junction Road or whether he found out about it whilst attending those premises to speak to the occupant as he said in his statement and in his evidence prior to the production of the hard drive showing the police activities that morning.
The use of a general search warrant is, as Mr Retalic has pointed out, an unusual advantage given to police investigating crime in this state but by no means a universal tool provided in the common law world. The general search warrant provides for a significant invasion of the property and privacy of citizens and it behoves those purporting to exercise the powers it provides to properly document their use of that power. The matter is peculiarly within the knowledge of the holder of the warrant. Only he knows when he decided and on what basis he decided to exercise its powers.
There is no clear evidence, in my view, as to what was the basis for the exercise of the powers in this case as Detective Sergeant McCoy’s evidence changed significantly subsequent to his viewing of the video and it is a matter in which other police are unable to assist.
As the prosecution cannot come forward with a coherent position as to the basis upon which it was exercised and exactly when it was exercised, and as it is clear to me that the search had already commenced, and to that extent it was illegal, I am compelled to find that the entry into the premises at 43 Canning Street was an illegal search.
I am aware of the fact that to disallow the evidence will be to disallow extremely cogent evidence on the commission of an offence regarded by Parliament as serious.
I am also aware that the location of one or possibly two cameras on the premises at 43 Canning Street pointing to the back yard of the premises at 62 Grand Junction Road where the cannabis was located could, in itself, in my view have constituted reasonable grounds for suspicion and thus the use of the search warrant to enter the premises at 43 Canning Street.
In my view, also, a reasonable suspicion could have been founded on the location of the baby monitor in the premises at 62 Grand Junction Road in that one could reason that the baby monitor would only have a very limited radius of transmission. The premises at 62 Grand Junction Road are on a wide road and the only two premises which would seem to be within range of a baby monitor would have been the premises at 43 Canning Street and the premises immediately west of 62 Grand Junction Road.
In the end, I have taken the view that it is not for me to rationalise ex post facto for a reasonable basis for a suspicion to permit the activation of the search warrant when it was not the basis claimed by the holder of the warrant.
Further, although the officer had exercised the significant powers contained in the warrant to invade the privacy of a citizen he did not even fill out the statistical return which I am told is mandatory within the police force for police officers using a general search warrant and which would set out a basis upon which it was used including the reasonable suspicion entertained to permit its use. (TP20)
Furthermore, the witness prepared his statement on 18 February 2010. He had made no notes. He relied essentially on his memory in order to deal with the question of the reasonable suspicion and motivations for and circumstances in which the search warrant was deployed. This was some four and half months after the events in question. The witness concedes that he frequently performed these raids.
It is not surprising therefore that the witness found himself under cross examination unable to put forward a comprehensive and definitive basis for the circumstances when the warrant was used.
I have hesitated long and hard on the question of whether I ought to exercise my discretion to exclude the fruits of the search of the premises at 43 Canning Street. As I have said, the fruits of the search were highly relevant and implicatory of the accused. Proper police work would very easily have come up with grounds permitting the use of the search warrant. The offence is a serious one.
On the other hand it is not much to expect the police officer executing a search warrant to make comprehensive notes at the time of the basis for his exercise of the warrant so that he can explain to the Court the basis for its use.
I am mindful too that the offence is not one where there is a personal victim who might feel aggrieved that the crime against him received no redress because of lax police investigative work.
In the circumstances I rule that in the exercise of my discretion I will not permit the prosecution to lead evidence of the fruits of the search of 43 Canning Street.