R v Cirillo
[2024] SADC 11
•9 February 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CIRILLO & OTHERS
[2024] SADC 11
Reasons for Ruling of her Honour Judge Fuller
9 February 2024
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
All accused are jointly charged with two counts of cultivating a large commercial quantity of cannabis. The accused Giannini is also charged with one count of cultivating controlled plants for sale and possessing prescribed equipment, diverting or abstracting electricity from a power system without proper authority. The accused Cirillo is also charged with two counts of possessing prescribed equipment. Evidence of the alleged offending was obtained following the execution of general search warrants, three at a property at Karoonda and two at a property at Coonalpyn and one each at the residential premises of each accused.
The accused applied for an order that each of the searches conducted by police under the authority of a general search warrant were unlawful and that any evidence obtained as a result should be excluded.
Held: the suspicion entertained by each warrant holder at the relevant time was reasonable. Each search was lawful. Application refused.
Controlled Substances Act 1984 (SA) s 33(B); Summary Offences Act 1953 (SA) s 67(4), referred to.
R v Mitchell & Ors [2020] SASC 147; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Rogers (2011) 109 SASR 307; McHugh v The Queen [2022] SASCA 5; Police v Hodder [2016] SASC 70; R v Vallelonga [2023] SADC 7, considered.
R v CIRILLO & OTHERS
[2024] SADC 11
The accused Antonio Juliana Cirillo, Giuseppe Giannini, Pietro Ierace and John Kouvaris are jointly charged on Information with the following offences:
First Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Section 33B(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Antonio Juliano Cirillo, Giuseppe Giannini, Pietro Ierace and John Kouvaris between the 1st day of December 2019 and the 23rd day of March 2020 at Coonalpyn, cultivated a large commercial quantity of controlled plants, namely 486 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.
Second Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Ibid).
Particulars of Offence
Antonio Juliano Cirillo, Giuseppe Giannini, Pietro Ierace and John Kouvaris between the 1st day of December 2019 and the 25th day of March 2020 at Coonalpyn, cultivated a large commercial quantity of controlled plants, namely 854 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.
The accused Giannini is also charged with further offences, namely one count of cultivating controlled plants for sale and possessing prescribed equipment, diverting or abstracting electricity from a power system without proper authority. The accused Cirillo is also charged with two counts of possessing prescribed equipment. The accused Ierace is also charged with one count of possessing prescribed equipment.
On the application of each accused a voir dire hearing was conducted with respect to several applications made by each accused. This ruling relates to an application made by the accused Cirillo, and joined in by the other accused, that the searches undertaken by police at:
1. Lot 5, Stirling Well Road, Karoonda on 26 September 2019 (“the first Karoonda search”);
2. Lot 5, Stirling Well Road, Karoonda, on 13 February 2020 (“the second Karoonda search”);
3. Venning Road, Coonalpyn on 22 March 2020 (“the first Coonalpyn search”);
4. Lot 5, Stirling Well Road, Karoonda on 22 March 2020 (“the third Karoonda search”);
5. Five residential properties on 24 March 2020 (“the house searches”) and
6. Venning Road, Coonalpyn on 26 March 2020 (“the second Coonalpyn search”)
were unlawful and all evidence obtained as a result of those searches should be excluded. After the application was made and evidence led, the accused Ierace pleaded guilty to count 1 and the charge of possessing prescribed equipment (count 8) and thereafter did not pursue the application.
The evidence
Thirty-eight exhibits were tendered on this voir dire application. I have referred to some but not all of the exhibits in this ruling but have had regard to each of them.
Detective Nathan Sean Schollar
In September 2019, Detective Schollar became involved in an investigation named Operation Argon. It focussed on information police had received regarding the accused Cirillo and his involvement in large commercial cannabis cultivation.[1] There were other persons of interest but none of them were the remaining accused.[2]
[1] T 221.
[2] T 222.
Detective Schollar said that he reviewed an intelligence submission in July of 2019 that a cannabis crop at Karoonda had been ‘ripped’ by a group of people. Detective Schollar identified the intelligence submission dated 13 July 2019: Exhibit VDP29. This report triggered the formal investigation plan.[3]
[3] T 223-225.
The investigation plan sought to identify areas that Cirillo might be linked to involvement in the large commercial cultivation of cannabis. They installed optical devices on Crown land in the vicinity of the Karoonda property initially. The footage from those devices revealed that vehicles were attending the property, including vehicles owned by Cirillo. The next step was to search the property to identify offending against the Controlled Substances Act. Detective Schollar said:
We were expecting to find either a previous cannabis cultivation set-up or a current cannabis set-up or other evidence linking to criminal offending against the CSA.[4]
[4] T 225-226, 1-4.
The first search was conducted on 26 September 2019 for which a tactical operations order was prepared: VDP44. The search took place at Lot 5, Stirling Well Road, Karoonda, an address owned by Cirillo. There were several police officers involved, including Detective Sergeant David Fahy, who was the holder of the general search warrant which was executed in order to search the property. Detective Fahy was the person who executed his search warrant because he was the most qualified and experienced. [5]
[5] T 226.
Detective Fahy was provided with the PD23A (VDP30) and the information from the tactical operation order. There was a briefing the day before the search and the participants were briefed by Detective Schollar from the tactical operations order.[6]
[6] T 227-228.
Detective Schollar said his signature was underneath the heading ‘member giving grounds’. VDP30 contained information from VDP29. Detective Schollar said that the reference to ‘Cirillo is recorded with criminal history for cannabis cultivation…outdoor and hydroponic at his home address in Athol park and at his Karoonda property’ was information he had researched himself.[7] The reference to criminal history were convictions, one at his Karoonda property and the other at his home address.[8] Parts of an intelligence submission dated November 2014 were summarised in the PD23A: Exhibit VDP31. Detective Schollar also had regard to ‘street-check’ police generated intelligence reports dated 27 July 2014 and 28 July 2014: VDP32 and VDP33. He understood the reference to ‘Cirillo implicit in cultivation of cannabis’ to mean that Cirillo was complicit in the cultivation of cannabis.[9]
[7] T 228.
[8] T 230.
[9] T 230-231.
Detective Schollar said that the assertion that ‘intelligence suggests that he has been involved in the cultivation of cannabis for some time’ was based on several intelligence reports going back a number of years saying that Cirillo was involved in the cultivation of cannabis and other activities.[10]
[10] T 229.
Detective Schollar also had regard to a street-check dated 3 April 2019 which referred to a search of Cirillo’s premises revealing the presence of a large camouflage military style backpack that smelled heavily of cannabis. Photographs accompanied the street-check: VDP34.[11] Detective Schollar drew an inference from this information that the author of the street-check suspected Cirillo was involved in cannabis cultivation, particularly given the camouflage bag and sheepskin shoes to avoid footprints being left.[12] The photographs show a couple of different camouflage pieces of clothing, gloves and boots. Detective Schollar said that this was what was deemed to be ‘extensive field craft type items’.[13]
[11] T 232-233.
[12] T 233.
[13] T 234.
The final note on the PD23A that Cirillo had attended the Karoonda property as recently as 14 September 2019 was information obtained from the optical devices installed on Crown land.[14]
[14] T 235.
Detective Schollar said that the other information he had at the time that was not outlined in the PD23A was the information in the tactical operation order which had general commentary about the topography in the nature of geospatial or satellite data: VDP38 [15]
[15] T 236.
The PD23A was given to Detective Fahy shortly before the operation commenced. The briefing was the day before. Detective Schollar said that a lot of the information contained in the PD23A was verbally briefed to all participants the day before.[16]
[16] T 237.
The search was to be conducted without notifying anyone of the presence of police in order to continue the investigation or develop other investigative strategies. Detective Schollar was subsequently told that there was an amount of dry cannabis in a bread basket or bread tray within a structure on the property and a large bud stripper and other items consistent with the cultivation of cannabis. Nothing was seized so as not to alert Cirillo or others that they were being investigated.[17]
[17] T 238.
The investigation then continued. Surveillance on Cirillo and others occurred and police scrutinised information from the optical cameras at Karoonda which alerted them to the involvement of other people, in particular the accused Kouvaris. They continued to review telecommunications data and made applications for warrants for surveillance devices to be put on certain vehicles. This continued up until February 2020.[18] At this time, a decision was made to look for the crop that they suspected was actually at Karoonda in some form of maturity in the September/October period. They wanted to find it in a position of maturity while watching the people they suspected were involved in its cultivation.[19]
[18] T 238.
[19] T 238-239.
Surveillance devices were put on two vehicles driven by Cirillo and a vehicle owned by Giannini. As a result, they were tracked to Bunnings and CCTV footage and other evidence from Bunnings was obtained including receipts for purchases that were consistent with cannabis cultivation.[20] Cirillo was involved in most of the purchases at Bunnings in Woodville.[21]
[20] T 239.
[21] T 240.
Propagation pots were purchased on 22 September 2019 before the first search. There were further purchases from the Bunnings at Woodville; two in December 2019 and one in the first week of January 2020. Cirillo attended each time with others. Only a small number of items were purchased and on one occasion green paint. The receipts were matched with the CCTV footage of the transactions.[22]
[22] T 241-242.
Prior to the second search on 13 February 2020, optical devices were repositioned in the proximity of the driveway onto the property at Karoonda and in a location at Yumali which was set back from the road off the Dukes Highway where the vehicles that were being surveilled were stopping for a period of time. Detective Schollar said that they suspected that a vehicle was being left in that location and another car was collecting people to take them to another place.[23]
[23] T 242-243.
After the optical devices were repositioned and before the search on 13 February 2020, footage was obtained of Cirillo’s Commodore arriving in the area off the road followed shortly thereafter by Giannini’s Triton.[24]
[24] T 243.
Warrants were obtained to install listening and optical surveillance devices at the Karoonda property: Exhibit VDP35.[25] The devices were installed on 13 February 2020 at the time a general search warrant was executed.[26] The general search warrant was executed by Detective Schollar because by that time he had the necessary qualifications and training.[27] A copy of the warrant was tendered: Exhibit VDP37.
[25] T 243.
[26] T 244.
[27] T 245.
A PD23A was prepared for the second search of the Karoonda property on 13 February 2020: Exhibit VDP36.[28] It contained much of the same information as in VDP30 with the addition of a suspicion that cannabis was being grown at the property and reference to Cirillo and others regularly attending the property.[29] Detective Schollar said that he understood that his warrant permitted him to search the property. He was satisfied that offences were being committed, that there was going to be evidence of the commission of the offence under investigation or other items that may be used in the commission of those offences. He was asked what he suspected he would find during the search, and he said:
I suspected that I was going to find a cannabis crop of some maturity. I expected to find the items that were previously observed by Detective Sergeant Fahy being the bud stripper. I was also expecting to install those devices that were provided under the warrant around that particular cannabis crop site and also within the structures of that property. Obviously that was under the surveillance devices warrant.[30]
[28] T 245.
[29] T 248.
[30] T 246, 21-28.
Detective Schollar said they entered the property at Karoonda, and it was a very large vacant mallee property almost exclusively covered in native vegetation comprised of scrub and some trees. The terrain was undulating and sandy. There were two structures in the centre of the property, slightly towards the north. There was no running water or power connected to these structures and they suspected that they were used for storage and a place to meet. The location of the cannabis crop was suspected to be slightly to the north of that structure and concealed within vegetation.[31]
[31] T 247.
The suspicion regarding the location of the crop site was based on satellite data analysed before the first search which revealed that there were inconsistent moisture levels in a particular area.[32] The satellite imagery dated September 2018 was tendered: VDP38. Detective Schollar identified where the optical devices were placed on the imagery, almost directly east of the X on Stirling Well Road.[33]
[32] T 248.
[33] T 250-251.
Detective Schollar explained that the satellite imagery showed irregular moisture in a particular area on the image consistent with water being used for cultivation. He understood that outdoor cannabis needed sun to grow so it was primarily cultivated in spring/summer with harvest occurring when the plant was at its full maturity before rain arrives in the month of May.[34]
[34] T 251-252.
Detective Schollar searched the structures on the property and located the bud stripper, a set of scales, and in an adjoining shed he found some chairs, wine and beer bottles and some cigarettes.[35]
[35] T 252.
A search of the area of the property where the cannabis crop was suspected to be located was then undertaken. They found a large area enclosed by chicken wire with a significant irrigation setup including a thousand litre rainwater tank, fertiliser and a cannabis plant. A photograph of the plant was tendered: Exhibit VDP39. Detective Schollar said he had experience with cannabis as a police officer since 2008 and had undertaken many investigations involving cannabis and given expert evidence in relation to cannabis.[36] A sample of that plant was not taken; Detective Schollar said it did not cross his mind to do so.[37] The plant was about half a metre tall and looked like a cannabis plant.[38]
[36] T 256.
[37] T 257-258.
[38] T 260.
Detective Schollar said that it was concluded that this was not an active crop site and therefore Cirillo and others must have been attending an active crop site elsewhere. Nothing was seized on this occasion.[39]
[39] T 259.
Following the search on 13 February 2020, further surveillance was undertaken of persons of interest, including aerial surveillance. On 7 March 2020, aerial surveillance revealed that Cirillo and Kouvaris attended the property in a black Jackaroo with a large green trailer. They accessed the structures and then walked to the area where police had located the cannabis plant. They then returned to the structure. Detective Schollar listened to the conversation obtained from the listening device installed in the structure. The conversation related to the cultivation and harvesting of cannabis.[40]
[40] T 261.
There was further aerial surveillance on 11 March 2020 which revealed that a red Commodore arrived at Giannini’s home address and then Cirillo and Giannini got into a white Triton that had a tracking device installed. It then visited Campbelltown where Kouvaris lived and then travelled along the South Eastern Freeway towards Coonalpyn. Detective Schollar was in Tailem Bend and saw the Triton as it passed and noted the registration. He could not identify exactly who was in the Triton but there were five people in the car.[41] Surveillance identified four people going onto a property at 1017 Venning Road, Coonalpyn and walking into scrub carrying bags. Detective Schollar said he identified the four people as being, Ierace, Cirillo, Giannini and Andriano. Kouvaris was the driver of the vehicle.[42] The group of four were on the property between 10.00am and 3pm. The footage revealed that they were ‘clearly at work’ in an area similar to the area observed at Karoonda and he suspected that they were taking part in the cultivation of cannabis at that location.[43]
[41] T 262.
[42] T 264.
[43] T 265.
A decision was made to search the Coonalpyn and Karoonda properties simultaneously. Detective Cooper was the general search warrant holder for the Coonalpyn search and Detective Duance was the warrant holder at the Karoonda property.[44]
[44] T 266.
The tactical order was approved on 20 March 2020 and a briefing held on 21 March and deployment of resources on 22 March. The PD23A for the Coonalpyn search was prepared on 21 March 2020 at 3.20pm: Exhibit VDP40.[45] The additional information in that PD23A was the 11 March 2020 footage and aerial observations and cell tower data, together with the conversations captured on listening devices.[46] Because the investigation was now entering the resolution phase, more information was included in there, and it was an overview of the entire job.[47] The PD23A for the Karoonda search was prepared on 21 March 2020 at 3.20pm: Exhibit VDP41.[48] Much of the same information included in VDP40 appeared in VDP41 but had additional information derived from the earlier searches.[49]
[45] T 267.
[46] T 270-271.
[47] T 272.
[48] T 268.
[49] T 273-274.
Detective Schollar was involved in the search at Venning Road, Coonalpyn. He located a crop site with chicken wire surrounding it. Upon approaching the area, Detective Schollar could smell cannabis and subsequently located hundreds of cannabis plants within the type of defined holes they had found at Karoonda in the earlier search. The plants were mature with flowering cannabis head. Detective Schollar believed that they were close to being harvested. Also located in this area were several tools and fertiliser under a tarpaulin. A water tank was connected to an irrigation system which utilised a dripper system.[50]
[50] T 269-270.
The property was owned by a farmer, Mr Keller and Detective Schollar coordinated the making of inquiries with Mr Keller regarding the processing of the site and removal of the cannabis plants given how far it was from the road.[51]
[51] T 270.
Detective Schollar was not involved in the Karoonda search but was subsequently told that prescribed equipment for the growing of cannabis was located.[52]
[52] T 274.
On 24 March 2020, the residential premises of all five accused were searched. PD23As were provided to each of the officers who were to execute their general search warrants and a briefing took place beforehand.
There was a subsequent search of the Coonalpyn property on 26 March 2020. Detective Cooper executed his general search warrant on this occasion. This further search was conducted because the police received information that there was another cannabis crop on the property. That information came from a shield intelligence report dated 25 March 2020: Exhibit VDP42.[53]
[53] T 274-275.
During the second search at Venning Road, police located a crop site similar to the one located in the previous search, but it was on the eastern side of the property. It was almost identical to the first crop site. There was a slight difference with the diversion of water from the main road to a large rainwater tank. There was chicken wire around the crop site and more than 350 plants which were larger and healthier but at a similar stage of the cultivation process. The plants had flowering head and did not seem far from the harvesting process. Fertiliser and water were being fed via a dripper system. There were solenoids and timers. Detective Schollar said that there were significant similarities between all three crop sites.[54] The distance between the two crop sites at Coonalpyn was around 1.2 - 1.4km.[55]
[54] T 277.
[55] T 278.
Detective Schollar said that he also had regard to a shield intelligence report dated 17 October 2019: VDP43. This report referred to a person called Tony who assisted with supplying cannabis and described as in his sixties, short, skinny with a dyed black mullet haircut and moustache. Detective Schollar suspected this was Cirillo.[56]
[56] T 279.
Detective Schollar said the tactical operation order was a document that is used across SAPOL and in other law enforcement and military settings. It is a formalised document to outline instructions or orders relating to a particular event or series of events. It identifies the situation as known at a particular time and contains the mission or objective of the activity. It outlines the method by which it will be conducted, the participants and their roles, and how communication will occur. Tactical operation orders were prepared for the searches of Karoonda in September 2019 and February 2020: VDP44 and VDP45 respectively.[57] VDP45 has an incorrect date of 26 September 2019 on it.[58]
[57] T 280-281.
[58] T 281.
Detective Schollar re-attended the property at Venning Road on 23 November 2021 to gather further evidence linking the soil at that location to the sheepskin boots seized from the accused. Cirillo, Ierace, Andriano, Giannini and Kouvaris were all arrested on 24 March 2020 and photographs of them were taken: MFIVDP46.[59]
Cross-examination (counsel for Cirillo)
[59] T 282.
Detective Schollar said the first note in his notebook about Operation Argon was on 22 September 2019. In a chronology prepared for the investigation, the first entry relating to Cirillo is 15 July 2019 referring to the receipt of an intelligence submission on that date.[60]
[60] T 290.
Detective Schollar said he has had a general search warrant since 2015 and had exercised it in relation to drug-related matters many times.[61] Training in the use of general search warrants is provided during the detective’s course. That training includes the relevant section of the Summary Offences Act and the state of mind required to execute a warrant. There was no training in relation to the compiling of a PD23A because they did not exist at the time. He could not recall when they came in, but it was possibly in 2018.[62]
[61] T 290.
[62] T 291.
Detective Schollar explained his understanding of a PD23A:
The document itself is an administrative document that compiles the reasonable cause that the person executing the authority may require as a point of reference. It’s not the only document for which that information can be recorded; officers can make notes in their notebook if there is an immediate need to do so, whereas a 23A might be prepared retrospectively after the fact.[63]
[63] T 292, 11-18.
Detective Schollar said there was a general order for search warrants generally. He said general orders were a guide for a police officer to find the most appropriate path according to the general order.[64]
[64] T 293.
Detective Schollar agreed there were a number of general search warrants executed during Operation Argon: Karoonda 26 September 2019, Karoonda 13 February 2020, one warrant at Coonalpyn and one warrant at Karoonda on 22 March, one at Coonalpyn on 26 March 2020 and five on 24 March 2020 for the premises of each accused.
Every PD23A was typed by Detective Schollar with the exception of the PD23A for crop site 2 on 26 March 2020.[65] Detective Schollar could not say if it was a widespread practice for one detective to fill in a PD23A and another person execute the warrant, however it was not the first time he had done this.[66]
[65] T 293-294.
[66] T 294-295.
Detective Schollar was shown VDP44 and agreed that he was the case officer involved in the investigation of Cosimo Montagnese, Christopher Clemente and Pasquale Vallelonga which finalised on 15 May 2019. General search warrants were executed in that investigation and Detective Schollar filled in the PD23As for both properties. The lawfulness of the searches was challenged in court and he gave evidence in the District Court. He agreed that he had given the PD23A to one of the warrant holders shortly before the search of Mr Vallelonga’s house. The Judge presiding over the case found that the warrant holders did not make any inquiries of the intelligence on the PD23A and simply relied upon what he had written on the form and this practice did not promote the kind of independent assessment that should be engaged in each time a warrant holder is asked to use his warrant. [67]
[67] T 297-298.
Detective Schollar said this judgment was only handed down on 6 February 2023. He also said that the circumstances of this matter were very different. He explained:
The circumstances for which this and that apply are different in the sense that Detective Sergeant Fahy, for the first occasion, there was an extensive period of consultation with him leading up to the preparation of tac orders to start off with, and then his presence at a formal briefing that was delivered on the day before the execution of the warrant. The concerns of the judge in that particular matter was the time between the briefing and the execution of the search on that particular morning of Millard, I believe, is the issue in that particular judgment.[68]
[68] T 298, 22-32.
Detective Schollar agreed that the briefing Detective Fahy attended was on 25 September 2019 at 3.30pm but he did not fill in the PD23A until 5.30pm on the day of the search, less than four hours before the search commenced.[69] Detective Schollar agreed that significant planning went into the search, including STAR group officers, technical support section, two members of Serious and Organised Crime Branch performing the search and a number of other members of that Branch fulfilling other roles. It included officers travelling to Tailem Ben footy club and involved a lot of money, time and effort.[70] He agreed that is why the orders are drafted well in advance of the search and why approval from an officer high up in SOCB is required. He also agreed that all these contingencies are put in place on the assumption that the warrant holder is going to execute his warrant.[71]
[69] T 299.
[70] T 300.
[71] T 299-300.
Detective Schollar agreed that if Detective Fahy had said he did not have a reasonable suspicion then the whole exercise would have fallen apart, unless someone else with a warrant formed the requisite suspicion. Detective Schollar said:
The decision to do an activity like this is deemed feasible far in advance from when the document is actually prepared. There is an element of rubber stamping that the job will actually occur from management’s perspective. In terms of who’s doing what roles, that can differ leading into the actual execution, even on the day of if a person is sick then other contingencies may need to be found to see if the job can continue.[72]
[72] T 302, 8-16.
Detective Schollar said he had a series of conversations with Detective Fahy leading up to the preparation of the tactical order itself:
AMy view was that he had, based on the information I had told him, he had already made his own views that he was satisfied. The preparation of those documents and the tactical operations order are there to formalise the basis essentially. So in my view I believed that he already held suspicions even without that 23A.
QFrom the things he said to you.
AJust from how he was – the types of conversations that were occurring in the planning of this for which he was qualified to do so at that time. There were a series of questions that he asked before we’d even put pen to paper, yeah.[73]
[73] T 303, 2-14.
Detective Schollar was then taken through VDP30. He agreed that the intelligence from 15 July 2019 related to the earlier investigation involving Vallelonga and others. He was then taken to VDP29 which said that Chris Clemente and Tony Carbone may have a police badge to do a drug rip and also referred to the use of the police badge to pose as police officers to do a raid on a house in Murray Bridge owned by Tony Cirillo to rip off his cannabis crop. Detective Schollar agreed that there was no reference to farm or Karoonda.[74] He agreed that he did not make any inquiries about the reliability of the source but said he did not need to because it was said to be ‘mostly reliable’.[75]
[74] T 307-308.
[75] T 309.
Detective Schollar said that from that point on he suspected there was a cannabis crop at Karoonda. He agreed that he told the prosecutor in a proofing that he thought it was potentially too cold for a crop in September 2019 but said this did not mean that they would not find evidence of a previous crop.[76]
[76] T 310-311.
Detective Schollar agreed that Cirillo was not recorded as owning any properties in Murray Bridge but said that Karoonda was only 70km from Murray Bridge. He said he formed the suspicion based on the intelligence report that the place of relevance was at Karoonda. He agreed that he omitted from the PD23A the reference to house and Murray Bridge.[77] He also agreed that the name of the person in the intelligence report was recorded as Tony Cirrillio not Antony Cirillo. He could not recall checking if any houses in Murray Bridge were owned by a Tony Cirrillio.[78]
[77] T 311-312.
[78] T 313-314.
Detective Schollar agreed that he had given evidence that Cirillo was convicted of cannabis cultivation at his home address in Athol Park and Karoonda. He said he looked at the outcome and apprehension report. It was then put to him that Cirillo was fined $400 without conviction in 2003 in the Port Adelaide Magistrates Court for the offence of producing cannabis and fined $50 in 2007 without conviction for the same offence.[79] He agreed but said that he had inferred from the apprehension report and outcome that the charges were proved.[80] The offender history report was tendered: VDD47.
[79] T 314-315.
[80] T 315.
Detective Schollar said that the intelligence report itself did not hold much weight. However, he looked at everything, including two occasions of cultivations, one of which was at Karoonda.[81]
[81] T 316.
The apprehension reports for the 2003 offending and 2007 offending were tendered: VDD48 and VDD49. There were four plants grown hydroponically at Cirillo’s Athol Park address in 2003 and in 2007 police located three cannabis plants growing in scrub at section 5, 100 of Marmon Jabuk, Peake.
Detective Schollar agreed that the intelligence reports (VDP31- VDP33) that suggested Cirillo had been involved in the cultivation of cannabis for some time were dated 2014. The intelligence reports also suggested he was growing cannabis in bunkers at a number of his properties.
Detective Schollar said that he sourced the information in VDP30 about the search of Cirillo’s girlfriend’s address at Woodville West in April 2019 from a street check: VDP34. He agreed that Cirillo did not own that property, but he relied upon the assessment of the person submitting the report that the backpack located there belonged to Cirillo. He agreed that there was nothing about the photograph of the backpack that suggested it belonged to Cirillo rather than anyone else. [82]
[82] T 323-324.
Detective Schollar agreed that the fact that Cirillo had attended his own property in a car registered to him was not inherently suspicious. Detective Schollar said that he included the last sentence in VDP30 ‘It is necessary to search to search this property for evidence of offences committed against the Controlled Substances Act’ as an expression of his view and the overall objectives of the search.[83]
[83] T 325.
Detective Schollar did not have any memory of giving Detective Fahy copies of any of the intelligence material to which he had regard or giving him a copy of the tactical operations order. However, all Detective Fahy would need to do to access those documents would be to perform a search under Cirillo’s name. They were all accessible to Detective Fahy.[84]
[84] T 326.
Detective Schollar agreed that a general search warrant is not supposed to be used for intelligence gathering.[85] He denied that the two searches at Karoonda were no more than intelligence gathering missions.[86]
[85] T 327.
[86] T 328.
Detective Schollar was shown a STAR operations orders for the search on 26 September 2019: VDD50. That document stated that ‘no resolution is likely to occur on this task until early next year. This is an intelligence gathering mission.’ Detective Schollar said they were not his words and ‘that was not what this was about’.[87]
[87] T 329.
Detective Schollar was shown the STAR Operations orders for the search on 13 February 2020: VDD51. Detective Schollar said the reference to covert creep in the sentence, ‘DOCTF conducted a covert creep at this property locating early evidence of drug involvement…’ meant ‘creep towards a objective without people knowing of the police presence’.[88]
[88] T 330, 23-25.
Detective Schollar said there was a possibility of finding a crop on site.[89] He agreed that no officer actually went and searched the crop site on the first occasion.[90] He said that any decision about this was a decision made by command structure:
We had found what we were expecting to find within that structure to know that it was of relevance to the investigation. And we were not prepared to venture into the dark with – and potentially expose ourselves to the job, for example, leaving footprints behind or any other evidence of our being there. So to that end a decision was made to move on.[91]
[89] T 330.
[90] T 331.
[91] T 332, 3-11.
Detective Schollar agreed that nothing located in the structures was seized but the intelligence obtained (prescribed equipment and drugs) was used in the investigation.[92] He explained:
The purpose of the search was to find evidence of offending against the CSA that would then drive further investigative strategies that then took place thereafter. It’s not – I don’t think there would be any issue with me saying that the seizure of a small amount of cannabis and a piece of prescribed equipment in that setting, outweighs the need to find where larger outdoor cannabis crops are in fact being cultivated. And it was on that basis that those items were left behind.[93]
[92] T 332.
[93] T 333, 2-11.
Detective Schollar agreed that a PD23A enabled others to scrutinise the suspicion at a later time. He agreed that the only difference between the PD23As in VDP30 and VDP36 were the following sentences in VDP36, ‘I suspect that cannabis has been grown at this property’ and ‘Cirillo attends this address regularly in company with other POIs’.[94]
[94] T 334.
Detective Schollar denied that the second search was another intelligence gathering mission. He said they were expecting to find a more mature cannabis crop in the area of operation that they had previously identified.[95] However, he agreed that on this occasion nothing was seized, and it was a covert creep in darkness.[96] Detective Schollar said that between the second search and 22 March 2020 when police searched the Karoonda property for the last time, other information he received indicated it was still a place of significance to the persons of interest. Accordingly, there was some suspicion existing that not only would there be evidence that could be seized but there was also the prescribed equipment they had previously located.[97]
[95] T 335.
[96] T 335.
[97] T 336.
Detective Schollar agreed that in his proofing with the prosecutor in the same week as he gave evidence, he told the prosecutor that he showed Detective Fahy the satellite data with the moisture level monitoring before the first search at Karoonda. He agreed that the first time he mentioned this was at the proofing and it was not in any of his statements. He agreed that he told the prosecutor that in his experience in September 2019 the temperature was too cold for there to be a mature cannabis crop growing.[98]
[98] T 343.
Detective Schollar agreed that the evidence of Cirillo buying items from Bunnings consistent with the cultivation of cannabis would not lead him to suspect cannabis cultivation at Karoonda any more than cannabis cultivation at Cirillo’s home address in Athol Park.[99]
[99] T 344.
Detective Schollar was shown a map of Karoonda and Yumali: Exhibit VDD52.[100] He agreed that, as Cirillo owned the property at Karoonda, there would be no need for him to go to a staging point at Yumali and swap cars in order to drive onto his own property.[101]
[100] T 346.
[101] T 348.
Detective Schollar agreed that the satellite photographs showed areas likely to be irrigated. He also said that he suspected that the single cannabis plant located at Karoonda had self-seeded.[102]
[102] T 349.
Detective Schollar agreed that he did not contact the owner of the property, Mr Keller, before executing a warrant to search the Coonalpyn property. He did not ask for his permission to be on his premises.[103]
[103] T 350.
Detective Schollar agreed that Faezeh Ghasedi was one of the persons arrested following the search of her property at Woodville West. The drug that was seized was methylamphetamine. The sentencing remarks for Ghasedi, Zanetti and Poturak were tendered: Exhibit VDD53.[104] Detective Schollar said that he considered whether the other people in the house at Woodville West were linked to the backpack but the information in the intelligence report that it belonged to Cirillo was pretty specific.[105]
[104] T 354.
[105] T 355.
Detective Schollar said that the intelligence report received from State Intelligence Branch had a high reliability rating and it was relied upon to execute the warrant that led to the location of crop site two. This information was checked two days before finding the other crop site. A land search was conducted using police officers on horseback and a drone during the search that located crop site 1 but nothing was found.[106] The information from Intelligence Branch said that they had missed a crop site on the same parcel of land four days prior.[107]
[106] T 355-356.
[107] T 357.
Detective Schollar produced the general order in relation to search warrants dated 26 September 2019: Exhibit VDD66. When he did his training at the academy, PD23As were not in existence but he had subsequently completed online training.[108]
[108] T 453.
Detective Schollar was taken to page 4 of VDD66 which provides, ‘When a member uses their general search warrant, that member must notify the owner or occupier of premises entered/and or searched in their absence, as soon as possible’. He agreed that he did not do this when he used his general search warrant in February 2020 and to his knowledge, Detective Fahy did not tell Cirillo as soon as possible after the search in September 2019.[109] Detective Schollar said that the covert nature in which they executed general search warrants was not a readily known practice to the rest of SAPOL. He said their use of a general search warrant was approved by a commissioned officer and in this case that was Detective Chief Inspector Tony Crameri.[110]
[109] T 456.
[110] T 456.
Detective Schollar was taken to this passage in the general order:
Signing of the PD23A by the third party is not required in circumstances where the request for use of the general search warrant is supported by the provision of an accountable document such as a tactical operation order, target package or similar. For example, a formal briefing attended by the warrant holder in preparation for a series of searches and a target package or similar is also provided as part of the briefing. In these circumstances, the warrant holder must create detailed notes on a PD23A that clearly describe the grounds upon which the execution of the warrant is based.
Detective Schollar said he did not recall Detective Fahy making any notes on the PD23A. He said that there was a local policy document that governed how SOCB conduct searches.[111]This was tendered: Exhibit VDD67.
[111] T 460-461.
Detective Schollar said that a covert field operation as defined in VDD67 could be used across intelligence planning, or investigation phases of operations.[112] However, the policy document states that ‘no covert field operation involving entry to, or search of premises is to take place unless justified by warrant or other power or authority’. Detective Schollar said that the searches on 26 September 2019 and 13 February 2020 were covert field operations; the other searches were not. VDD66 applied to the first two searches.[113]
[112] T 470.
[113] T 474-475.
Detective Schollar could not explain why the tactical operations orders prepared by STAR group each referred to the searches as ‘intelligence gathering missions’.[114]
[114] T 477-478.
Detective Schollar agreed that VDD66 did not reference the general order for search warrants. He said VDD66 was a lawful direction from a superior officer and therefore had to be obeyed.[115]
[115] T 479.
Detective Schollar said that it was his belief that he was not required to comply with the general order requirement to notify the landholder of the execution of a general search warrant as it would be counterproductive to the exercise. He said he would expect that most, if not all detectives engaged in covert field operations would not advise the owner if the owner was a suspect of the investigation.[116]
Re-examination
[116] T 481.
Detective Schollar agreed that paragraph 4.4 of VDD67 covered what occurred on 26 September 2019 and 13 February 2020.[117] That paragraph provides:
Should a covert field operation reveal evidence of criminal activity and it is deemed appropriate for reasons outlined in the definition of covert field operation not to take immediate action to arrest offenders or seize evidence, including drugs or other exhibits, the Officer in Charge, SOCB will be briefed on the circumstances and will accept responsibility for the final decision as to whether or not to take immediate action.
[117] T 482.
Detective Schollar said that he has conducted covert field operations for intelligence gathering on public land.[118] He did not contact the farmer who owned the property at Venning Road, Coonalpyn prior to entering the property because they were keeping an open mind about his involvement. He notified the owner an hour after entering and securing the property. Upon attending at the property on the second occasion he made contact with the owner to let him know that they had returned for a second search.[119]
[118] T 482.
[119] T 484.
Finally Detective Schollar said that he had seen camouflage equipment and sheepskin shoes used in the manufacture of methylamphetamine interstate but not in South Australia.[120]
[120] T 485.
Detective Sergeant David Alexander Fahy
In late September 2019, Detective Fahy was involved in operation Argon. He made notes during his involvement in this operation.[121] On 26 September 2019 he executed his general search warrant at Lot 5, Stirling Well Road, Karoonda. He became involved in the operation some time around 20-22 September 2019. In the period prior to the search, he met with Detective Schollar and talked through the investigation and how he might be able to help. This ultimately led to planning and conducting the search at Karoonda.[122]
[121] T 360.
[122] T 360-361.
Detective Fahy’s general search warrant was tendered: Exhibit VDP54. He understood the warrant empowered him to enter and search premises for evidence and offences, for items constituting an offence where an offence has been committed and to go in with assistants at any time of the day or night and break open objects if necessary.[123]
[123] T 362.
Detective Fahy said that in the days leading up to 26 September 2019 he ‘had formed enough suspicion that there was going to be evidence located at that address that I was happy to use my search warrant’.[124] A briefing was conducted on 25 September 2019 involving a number of people. In the leadup to the briefing it was decided by general consensus that he was the most appropriate person to lead a team to conduct the search. He explained:
The way it happened is Detective Schollar had this investigation, he needed assistance with it. We were all part of the one branch so we help each other. He called me to discuss the complexities around conducting this search. I gave him advice, we talked through different options and it was decided that, at his request, I would be the one to lead the team on the ground.[125]
[124] T 362, 31-33.
[125] T 363, 22-29.
Detective Fahy said he received VDP30, the PD23A, on the evening of 26 September 2019. The search took place around 9pm. He started work at 6pm. He suspected that there was going to be evidence of commercial cannabis cultivation occurring at the property and that is what they were expecting to search for.[126] Detective Fahy was asked when he first came across any of the information on the first page of VDP30:
First in the days leading into this search, I was aware that Drug and Organised Crime Task Force were conducting a significant investigation that had been approved at a branch level to investigate cannabis cultivation so I knew this wasn’t just an off-the-cuff search. I was aware that the accused Cirillo owned this property. He had been previously linked to cannabis cultivation offences. It was in the vicinity of the Peake township. I was aware prior to this from April 2019 that items involved in commercial outdoor cannabis cultivation were found at a property linked to him in April 2019. I was aware of that through the course of ordinary duties at the Serious and Organised Crime Branch at that time and I was aware that the accused Cirillo had been at this Karoonda property within recent days or weeks leading up to the search.[127]
[126] T 364.
[127] T 365, 1-17.
Detective Fahy said that they searched the main structure on the property which was a dwelling house that was partially constructed. They found a commercial grade set of scales, a large cannabis bud stripper, some irrigation tubing pieces and approximately one pound of cannabis on a bread rack drying. They did not seize any items because to do so at that time would have compromised an ongoing serious investigation.[128]
[128] T 365-366.
Detective Fahy took photographs of the items he described: Exhibit VDP55.[129]
[129] T 366.
Detective Fahy searched the property again on 13 February 2020. The search was conducted under the search warrant of Detective Schollar. A briefing was held at 10.10am on 12 February 2020.[130] On this occasion they searched the structure and the surrounding areas for evidence of cannabis cultivation. The bud stripper and scales were still there but not the cannabis. The external search revealed evidence of previous cultivation, namely irrigation tubing, fencing and a cannabis plant.[131]
Cross-examination (counsel for Cirillo)
[130] T 367.
[131] T 368.
Detective Fahy said it was a widespread practice for one detective to fill out the PD23A and for the warrant-holder to execute it.[132] He agreed that the purpose of a PD23A is to record the material upon which an officer has the requisite suspicion and can be scrutinised by others subsequently. He also agreed that it is best practice to include in the PD23A all of the matters that give rise to the suspicion. Detective Fahy said that had not happened in this case and there were a few things that were in the briefing that were not recorded on the PD23A but which he took into account in his overall decision to execute the warrant.[133]
[132] T 370.
[133] T 371.
Detective Fahy could not say whether he looked at the intelligence report referred to in VDP30 with respect to the intelligence that persons were planning to rip a cannabis crop. He said he may have but he relied on what was in VDP30. Detective Fahy said he inferred from that information that Cirillo was involved in cannabis cultivation and people were going to rip that cannabis crop although the location of the crop was unknown.[134]
[134] T 372-373.
Detective Fahy said he thought there was a strong possibility that there would be a cannabis crop at Karoonda. He said there was a chance it would be there and equally a chance it would be elsewhere. He agreed that cannabis does not grow to a harvest stage outdoors in a South Australian winter. However, he said he did not necessarily give consideration to the life cycle of the cannabis plant on this occasion. He said it was common to find a cannabis site and make a tactical decision to come back in the growing season.[135]
[135] T 374.
Detective Fahy said he recalled being told in the briefing that the cannabis crop planned to be ripped was in a house in Murray Bridge not Karoonda. He understood that this would be a hydroponic crop. He agreed that there was nothing to suggest that it was a commercial, trafficable, or personal use cannabis crop.[136]
[136] T 375.
Detective Fahy said that Cirillo’s offender history was provided in the tactical operation order. He was aware that a cannabis crop had been located at the Karoonda property. He could not give any details about the hydroponic criminal history matter.[137]
[137] T 376.
Detective Fahy said that he did not check to see how fresh the intelligence was which suggested that Cirillo had been involved in the cultivation of cannabis for some time or the intelligence relating to the use of bunkers.[138] Detective Fahy said he was familiar with Operation Globe as it related to the April 2019 matter and his mindset at the time was that the bag that was located belonged to Cirillo. He knew the address at which the bag was found was linked to Cirillo.[139]
[138] T 376.
[139] T 378.
Detective Fahy agreed that there was nothing inherently suspicious about Cirillo attending his own property.[140]
[140] T 378.
With respect to the final sentence on VDP30, he said that was certainly not an instruction for him to use his search warrant. He said:
It would be common, for example, if I was doing a 23A, what I like to do is say, ‘A search is necessary to locate evidence of ‘whatever’ and including the items that we would expect to find. Just to document it’s not a fishing exercise, it’s a search for a particular purpose.[141]
[141] T 379, 6-11.
Detective Fahy could not say when he first saw VDP30 but said the information was known to him before they embarked on the whole operation. He acknowledged the possibility that he did not see VDP30 until he was already in Tailem Bend.[142] He agreed that a lot of resources were put into the search, but it was worthy of significant planning and resources. He said that if he had refused to execute his warrant the whole exercise could have been called off within three hours of the search.[143]
[142] T 379.
[143] T 381.
Detective Fahy said that they did not have exhibit logs, but they came prepared for a number of eventualities. Whether anything was to be seized would depend on what was found. In other words, if it was in the public interest for the police to take immediate action or leave items for further investigation.[144]
[144] T 381.
Detective Fahy said he suspected that there would be evidence of a commercial cannabis cultivation at Karoonda but VDP30 did not articulate what evidence of commercial cannabis cultivation it was suspected would be found.[145] He said he expected to find either a cannabis crop site or evidence of a drying, packaging, weighing and distribution area. He accepted that the stage of the process at Karoonda was unknown, and they were open-minded as to what they would find. He denied it was an intelligence gathering mission but said it was a search to locate evidence of offending to the use to make informed decisions for the investigation.[146] He agreed a general search warrant is not to be used for intelligence gathering. He gave the example of going into look for a document that might provide a telephone number for intelligence purposes.[147]
[145] T 382.
[146] T 383.
[147] T 384.
Detective Fahy said that the filling out of a PD23A by one officer and then giving it to another officer to execute a warrant is not a rubber stamping process:
General search warrant use isn’t to be taken lightly and it’s definitely not a rubber stamp job. The reason why someone else might prepare a 23A for someone else- as you can imagine we’re involved in big operations; lots of suspects; houses; officers involved; it would be common for us to call in resources from a number of areas. And it’s up to the person controlling the job or the team controlling the job to make sure that the information that they want to get out is conveyed to the person who is executing the search warrant. Certainly, we would never expect someone to execute a search warrant without reasonable cause, just by virtue of being handed a piece of paper.[148]
[148] T 385, 14-26.
Detective Fahy did not agree that he should have been provided with VDP30 any earlier:
The PD23A is an administrative document, as my understanding is. I had my suspicion well before we even embarked on this venture. This is a method of recording it, Nathan certainly had a lot on leading up to this search; he prepared it as he could, but I had formed that suspicion prior to the 25th when we held the briefing. It wouldn’t have bothered me if Nathan had’ve given this to me the day after.[149]
[149] T 386, 4-11.
Detective Fahy said that it was best practice to explain a search warrant to a person and there were general orders requiring police to give notice of an intention to search if conducting a forced entry, but he was not aware of any specific legislation that required police to tell a person a search had been conducted.[150]
[150] T 387.
Detective Sergeant Kieran Mark Duance
Detective Duance became involved in Operation Argon in late 2019. He was involved in a search at 5 Stirling Well Road, Karoonda, on 22 March 2020. At the time he held a general search warrant: Exhibit VDP56.[151]
[151] T 394.
On 22 March 2020 he attended a briefing conducted by Andrew Macrae in relation to Operation Argon and the intended search of the Karoonda address. At the briefing he was provided with information and also a PD23A: VDP41.[152]
[152] T 395-396.
The information he received verbally was consistent with what was on VDP41. Detective Duance had been on the same investigative team as the lead investigator, Detective Schollar and was subject to ongoing briefings and updated regularly about what was going on. He also relieved as supervisor and obtained an understanding of the progress of the investigation[153]including the investigative activities taking place and intelligence that was coming in.[154]
[153] T 396.
[154] T 397.
Detective Duance had been involved in two other prior searches, on 26 September 2019 and 12 February 2020.
On 22 March 2020 he was assigned the role of exhibits officer and it was general practice for the exhibits officer to be the warrant holder.[155]
[155] T 398.
Detective Duance said the information on VDP41 was information consistent with what he already knew from his involvement in the investigation. He said he had a reasonable understanding of Operation Argon prior to 22 March 2020.[156]
[156] T 399-400.
Detective Duance was asked what his suspicions were that led him to execute his general search warrant at the Karoonda address:
In particular for that one, based on previous searches, I was aware that there was prescribed equipment at that particular location which would afford evidence of the commission of an offence, and that was subject to seizure. In addition to that there were the other things stated in the 23A which boosted my reasonable cause to suspect that there was offences being committed and/or about to be committed in relation to the cultivation of cannabis, and that includes the surveillance – sorry, the helicopter observations of persons of interest attending particular locations, and seeing activity that’s consistent with cannabis cultivation; there was other items that were at the Karoonda address that indicated cannabis cultivation, so not just the prescribed equipment itself, but there was what appeared to be an old cannabis cultivating area at the premises. There was piping and tanks, etc, that all indicated illegal activity in relation to cannabis cultivation. In addition to the surveillance, yeah, the – sorry, that was another good point, was the listening devices that were installed, there was conversation that was captured on those listening devices which indicated people of interest had involvement in cannabis cultivation during those conversations.[157]
[157] T 401, 13-38.
During the search on 22 March 2020, Detective Duance kept an exhibit log and took photographs at the property: Exhibit VDP57.[158]
Cross-examination (counsel for Cirillo)
[158] T 402.
Detective Duance said that there was a locked gate and they cut the wires attached to the lock to gain entry. He was aware that the premises were usually secured so he understood that there was a possibility of using force to get onto the property.[159]
[159] T 403.
Detective Duance said that they went through the locked gate at 8.55am. The briefing was in Adelaide, and he had not seen the PD23A prior to that.[160] He agreed that he did not interrogate the information in the PD23A, but the information was not new to him. He agreed that it was quite common for one person in SOCB to type up a PD23A and for a different person to be the warrant holder.[161]
[160] T 405.
[161] T 406.
Detective Duance said that he knew that a search was planned for the property at Coonalpyn on 22 March 2020 and that it may have occurred at the same time as the Karoonda search.[162] He said that based on his knowledge of the job he would have always gone ahead with the Karoonda search. If he was not available someone else would have had to be provided with the information and interrogate the intelligence holdings or satisfy himself to the point of a reasonable suspicion.[163] He said:
I think that it’s fair to say that as long as the warrant holder, whoever is allocated that role, satisfies themself of that requisite suspicion, it doesn’t matter who does it. But I think the important thing is to highlight that they need to have that requisite suspicion, otherwise it can’t be done.[164]
[162] T 406-407.
[163] T 407.
[164] T 408, 3-8.
Detective Duance said he made his final decision about executing the general search warrant just before he walked through the gate. He believed he had reasonable cause to suspect before that but once he was handed the PD23A and he was satisfied it was accurate and consistent with his beliefs, that was the time.[165] He agreed that VDP41 did not set out his suspicions but said that he agreed with the facts in it, and they were the basis of his suspicion. He took the information in VDP41 on face value and it, together with his working knowledge, formed the basis of his suspicion.[166]
[165] T 408-409.
[166] T 410-411.
Detective Duance was asked about the passage in VDP41, ‘It is suspected that evidence associated with CSA offences will be located at the address. This includes phones, clothing worn, documents, bank accounts, camouflage gear, boots containing dirt, maps and anything else that could be linked to any involvement with an outdoor cannabis crop’. He said:
This is a tool. So the fact that Nathan has written in there ‘it is suspected’, it’s not a direction because it’s not his warrant, it’s my warrant. It’s a suggestion and a document to provide information about the investigation in order for me to make that determination based on the information. So I don’t know what else to tell you with that one. I haven’t amended the document itself, I didn’t think that was necessary. I looked at it and went ‘I agree with the information that’s been provided here and I think there is a reasonable cause to suspect’. So I haven’t made any pen amendments.[167]
Cross-examination (Counsel for Kouvaris)
[167] T 411, 32-38; T 412, 1-5.
Detective Duance said he inspected the crop site which was an inactive crop site at Karoonda on 22 March 2020. He said there was one cannabis plant which was dead and probably self-seeded. He said cannabis growing season is the same as tomato growing season. He said he was not aware of anyone finding cigarette butts on the inactive crop site and if they had been seized they would have been given to him as exhibits officer.[168]
[168] T 413-414.
Detective Brevet Sergeant Timothy Eric Cooper
Detective Cooper was involved in Operation Argon as exhibits officer. A document entitled Operation Argon Exhibit Index was tendered: VDP58. Detective Cooper executed his general search warrant (Exhibit VDP59) at Venning Road on 22 March 2020 and also on 26 March 2020.[169] As at 22 March 2020, Detective Cooper had had minimal involvement in Operation Argon. He was on the same team as case officer but not on the direct investigation team.[170] A few weeks before 22 March 2020 he was deployed to observe a vehicle on the South Eastern Freeway.[171]
[169] T 421.
[170] T 422.
[171] T 423.
Detective Cooper was given a PD23A (VDP40) created by Detective Schollar on the morning of 22 March 2020.[172] He started work around dawn and then they travelled to the property for a search to commence mid-morning. It took two to three hours to get to the location. Once he received VDP40 he reviewed it, considered the contents, and was satisfied that there was a required suspicion to conduct the search in relation to the cultivation of cannabis.[173]
[172] T 424.
[173] T 425.
Once police attended at the location a video of the crop site by way of walk through was taken: Exhibit VDP60. Photographs were also taken: VDP61A, VDP61B and VDP61C. It was a large operation, involving twenty to thirty police officers, including Detective Schollar.[174]
[174] T 428.
A further search of a different part of the same property was undertaken on 26 March 2020 after further information was received about a second crop site at that property. This information came from an intelligence submission. He was made aware of this by Detective Schollar. Detective Cooper compiled a PD23A for this search: Exhibit VDP62. It was dated 14 April 2020 because it was a relatively busy period with a large number of exhibits.[175]
[175] T 429.
A map showing the two crop sites was created by Detective Cooper: Exhibit VDP63. Crop site one was 1.27km from crop site two.[176] Photographs were taken of the site: Exhibit VDP64. A video of a walk through was also taken: Exhibit VDP65. Detective Cooper said he suspected they would find evidence of the cultivation of a controlled plant.[177]
Cross-examination (counsel for Cirillo)
[176] T 430.
[177] T 431.
Detective Cooper agreed he started work on 22 March 2020 at 5am and arrived at the site around 7.30am. He started work at Wakefield Street headquarters and was there for about half an hour. He received the PD23A at Wakefield Street. He did not conduct any independent checks on the information in the PD23A but had an awareness of the investigation and had faith in what was provided to him.[178]
[178] T 433.
He was aware of the use of aerial surveillance in the investigation but not the intimate details. He denied that there was any expectation on him that he would execute his general search warrant. He said he did not have any issue standing his ground and raising any matters.[179]
[179] T 434.
The information included the fact there had been aerial surveillance which detected men walking into the location of crop site 1 on 11 March 2020. He did not speak to the farmer who owned the land before executing his warrant.[180] Despite the use of a drone, they did not find crop site 2 on 22 March 2020.[181]
[180] T 435.
[181] T 436.
Detective Cooper said he was aware of general orders relating to search warrants. He would have read them at some stage, but not recently.[182] Detective Cooper agreed that an important purpose of the PD23A is to enable oversight by a court of the exercise of a serious police power.[183]
[182] T 436.
[183] T 437.
Detective Cooper was shown VDP42 and said he was given the information in that report, but he did not sight the report before the search. He was not aware that the information was evaluated as category E which was from an untested source.[184] He was confident that the information was likely to be right but said it was not appropriate for him to comment on whether the source of the information was a person involved in the cultivation.[185]
Cross-examination (counsel for Giannini)
[184] T 439.
[185] T 440.
Detective Cooper agreed that the information given to him by Schollar came from police conducting aerial surveillance and he did not make the observations referred to in VDP40.[186]
Re-examination
[186] T 440-441.
Detective Cooper did not contact the property owner because his identity was not known to him at the time of the search. A man who attended during the search and helped with the excavation was the person he later found out was the owner.[187]
[187] T 442.
Arguments of counsel
Mr Cunningham, for the prosecution, advanced the following arguments in support of his contention that each of the searches was lawful:
1.A plain reading of s 67 (4) (a) (b) and (c) Summary Offences Act establishes that the powers are not premised on the general search warrant holder intending to exercise all of the powers upon entry and in particular there is not requirement that there be an intention to seize.
2.The power to search is an investigative tool: R v Mitchell & Ors [2020] SASC 147 although the police officer exercising his general search warrant must have reasonable cause to suspect any of the matters listed in s 67(4)(a)(i)-(iv).
3.In determining whether the relevant general search warrant holder had ‘reasonable cause to suspect’ the first step is determining whether the warrant holder had a genuine suspicion and if so, the second step is to determine whether that suspicion was reasonable: R v Willingham (No 2) [2012] SASCFC 104.
4.A suspicion arises at or near the starting point of an investigation and is a lesser state of mind than belief. Facts which can reasonably ground a suspicion may be quite insufficient to ground a belief. Whether a suspicion is reasonable is to be determined 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. A suspicion does not have to be well founded or factually correct to be reasonable. However, the requirement of reasonableness may require the officer to assess the reliability of the information that has been communicated: R v Mitchell & Ors [2020] SASC 147.
5.Each warrant holder had, at a minimum, reasonable cause to suspect with respect to each property, that there was anything that may afford evidence as to the commission of an offence at the relevant property.
6.With respect to the first Karoonda search, Detective Fahy’s evidence reveals that he had a good understanding of the investigation and much of the underlying information before he received the PD23A compiled by Detective Schollar. Detective Fahy had formed his suspicion prior to the briefing. He said he suspected that there was going to be evidence of commercial cannabis cultivation occurring at the property. He had significant involvement in the planning of the search. The information he received over a number of days leading up to the search would have lead an experienced police officer like Detective Fahy to form a reasonable suspicion that there would be evidence of offences against the Controlled Substances Act.
7.With respect to the second Karoonda search the warrant holder was Detective Schollar who was the investigator for Operation Argon. By the time of the second search, he was aware of the location of evidence of offences against the Controlled Substances Act in the first search. It was reasonable to suspect that any offending involving cannabis at that location was likely to be ongoing. There was additional information to fortify his suspicion, namely continuing surveillance of Cirillo and the attendance at Bunnings of Cirillo, Andriano and Kouvaris to purchase items consistent with the cultivation of cannabis. He was aware of their attendances at Yumali and Coonalpyn. He was aware from the satellite imagery that there were inconsistent moisture levels in an area on the Karoonda property. Further the street check from April 2019 connected Cirillo to items consistent with the cultivation of cannabis. In those circumstances, it was reasonable to suspect that there would be a mature cannabis crop at Karoonda together with the items previously located.
8.With respect to the first Coonalpyn search, this took place after surveillance on 11 March 2020 showing five men driving to Coonalpyn, identified by Schollar as Kouvaris (driver) and Andriano, Cirillo, Giannini and Ierace. The PD23A contained a significant level of further detail including the evidence of cannabis cultivation observed during the first and second search of the Karoonda property. Given Detective Cooper’s overall awareness of the investigation and the results of the aerial surveillance, it was not necessary for him to make independent checks of the information provided to him.
9.With respect to the third Karoonda search, Detective Duance had attended a brief in relation to Operation Argon and the information he received was consistent with the contents of the PD23A. Detective Duance was on the same investigative team as Detective Schollar and had relieved as supervisor from time to time. He had an understanding of the progress of the Operation Argon investigation. He was named as the forward commander for the first and second Karoonda searches. Irrespective of the fact that Detective Duance did not make any notes on the PD23A of the evidence he suspected he would locate, the information already available to him was consistent with the contents of the PD23 and was ample to form a reasonable suspicion that there would be evidence of offences against the Controlled Substances Act at Karoonda and that there were offences being or about to be committed there.
10.With respect to the house searches, if the first Coonalpyn search is declared lawful, then there is no basis for a finding that the house searches are unlawful.
11.With respect to the second Coonalpyn search, the fact that cannabis was located in the first Coonalpyn search there was clearly reasonable cause to suspect that a further search of the large property might locate further evidence of that offence or another crop. Detective Cooper was present at the first Coonalpyn search he had more than enough information to warrant a further search even without further intelligence. The delay in completing the PD23A does not render the search unlawful.
Mr Dawes, for Cirillo, first addressed the status of VDD67, the policy governing covert operations. He said that this policy document could not supplant or override the general order governing search warrants (VDD66) and did not relieve any member of Operation Argon from compliance with the general order. Mr Dawes argued that the warrant holders were obliged to comply with the requirement to notify the owner of occupier of premises entered and/or searched in their absence as soon as possible. He did not argue that non-compliance rendered the searches unlawful but said this conduct supported a finding that what occurred with respect to the first and second Karoonda search was intelligence gathering and not the exercise of the powers in s 67 SOA.
Mr Dawes conceded that I could find, on the evidence, that Detective Fahy and Detective Schollar each had a genuine suspicion but said that suspicion was not reasonable because the purpose of the entry to the Karoonda property on each occasion was to gather intelligence.
Mr Dawes criticised Detective Schollar’s evidence about his suspicions with respect to the first Karoonda search (noting he was not the warrant holder). He said that Detective Schollar’s evidence was contradictory, claiming at one point that he expected to find the crop referenced in the July 2019 intelligence report but had said in a proofing cannabis would not be growing outdoors at the time of the search and then in evidence said the crop would not need to be in the ground for it to indicate offences had been committed.
Mr Dawes said that Detective Schollar created a PD23A which was misleading as it paraphrased the July 2019 intelligence report to suggest the crop was at Karoonda, not in a house at Murray Bridge. Mr Dawes did not contend that the framing of the PD23A was deliberately done to mislead.
Mr Dawes said that the reference to Cirillo having criminal history for outdoor and hydroponic cultivation of cannabis was also misleading, given the prior matters were dealt with without conviction and involved only a small number of plants. Detective Fahy did not make any further inquiries into this information and was misled by the reference to intelligence suggesting that Cirillo had been involved in the cultivation of cannabis for some time and used bunkers. Mr Dawes argued that the information in the PD23A should have been interrogated by Detective Fahy, particularly respect to the assertion that the fieldcraft items found at his girlfriend’s address in Woodville West belonged to Cirillo.
Mr Dawes argued that most of the content of VDP30 was misleading or wrong and created a false impression. He did not accept that on its face it would be a satisfactory basis for the formation of a reasonable suspicion to justify a search. Detective Fahy’s suspicion was that there would be evidence on the property of a commercial quantity of cannabis plants. Mr Dawes argued that, given the time of year, that suspicion was not reasonable. Mr Dawes said that Detective Fahy’s evidence that the chances of a cannabis crop being present or not present were equal did not meet the test in s 67 Summary Offences Act.
Mr Dawes argued that the absence of any arrangements for resources and equipment to be present at the first search to seize the cannabis crop suspected to have been there and the fact that none of the police officers who attended searched the property beyond the structures, strengthens the inference that this was an intelligence gathering mission.
Mr Dawes said that his argument regarding the unlawfulness of the second search was on two bases – the first search was unlawful and what was located in the first search was used as the primary piece of evidence for the second search and in any event there was no additional information in the interim capable of founding a reasonable suspicion to justify the second search.
Mr Dawes said the first search at Coonalpyn relied upon evidence obtained unlawfully in the first and second search at Karoonda. Mr Dawes also observed that the police did not speak to the owner of the Coonalpyn property or inquire as to whether there was any lawful reason for him to have allowed the accused onto the property. Mr Dawes said this evinced an intention to search the property regardless.
Mr Dawes said that the search of Mr Cirillo’s home in Athol Park occurred two days after the cannabis at crop site 1 was located. Detective Schollar suspected that evidence of Cirillo’s involvement in the crop site would be located at his home. Mr Dawes argued this was an insufficient basis for a search of Cirillo’s house.
Other counsel adopted the arguments of Mr Dawes.
The law
Section 67 of the Summary Offences Act (SOA) provides a power to the Commissioner of Police to issue a general search warrant to any police officer the Commissioner thinks fit. Section 67 provides:
67—General search warrants
…
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)the officer may seize any such goods or things to be dealt with according to law.
The exercise of the powers pursuant to a general search warrant requires police officer to hold a reasonable suspicion. Determining whether a police officer holds a reasonable suspicion pursuant to s 67(4)(a), involves a two staged assessment: first, did the warrant holder in fact have a suspicion referable to one of the sub-paragraphs of s 67(4)(a); and second, if so, based on the information available to the warrant holder at the relevant time, was that suspicion reasonable.
Whether or not a suspicion is reasonable is a factual question which is to be decided on the balance of probabilities. It involves an objective test. The Court puts itself in the position of the warrant holder with his or her knowledge and asking whether, in the circumstances, the suspicion was reasonably held.
Reasonable cause to suspect is a phrase that has been the subject of judicial analysis. The relevant principles were distilled by Justice Lovell in R v Mitchell and Ors:[188]
[188] [2020] SASC 147 at [10]. Footnotes omitted.
1. suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. Suspicion arises at or near the starting-point of an investigation.
2. a suspicion that something exists is more than mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence.
3. there must be a rational connection between the supporting material and the suspicion.
4. suspicion and belief are different states of mind. Suspicion is a lesser state of mind than a belief. Facts which can reasonably ground a suspicion may be quite insufficient to ground a belief.
5. whether a reasonable suspicion attaches to certain conduct or circumstances is a factual question. The use of the expression “reasonable cause” imports an element of objectivity into the assessment. 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.
6. reasonableness attaches to the suspicion and requires consideration of the circumstances as known by the officer. The suspicion must be genuinely held by the officer.
7. a suspicion founded on information subsequently discovered to be wrong does not negative the existence of the suspicion or its reasonableness. A suspicion does not have to be well founded or factually correct to be reasonable. Suspicion may be founded on evidence or statements which are inadmissible at trial. However the requirement of reasonableness may require the officer to assess the reliability of the information that has been communicated.
8. the requisite degree of suspicion must exist at the time of the search.
9. the force that can lawfully be used to enter, search and seize is that which could be reasonably considered to be necessary.
In R v Nguyen, the Court of Criminal Appeal said this about the concept of reasonable suspicion.[189]
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.
Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of this suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
(citations omitted)
[189] (2013) 117 SASR 432 at [21]–[22] per Kourakis CJ, Blue and Stanley JJ.
Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable involves the inclusion of an element of objectivity into the assessment.
The requirement for reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer.[190] Suspicion may be based on a number of considerations, some of which may be more significant than others.[191] It may also be grounded upon matters which the police officer has personally observed or circumstances which have been reported to the police officer.[192]
[190] R v Rogers (2011) 109 SASR 307 at [21].
[191] (2011) 109 SASR 307 at [25].
[192] (2011) 109 SASR 307 at [22] per Duggan J.
In McHugh v The Queen, the Court of Appeal considered the issue of ‘stale’ information in the context of a police officer forming a ‘reasonable suspicion’ in executing a general search warrant.[193] In that matter, the basis for the police officer’s suspicion was a Crime Stoppers report made on 15 February 2018. The search was not conducted until 31 May 2018. The trial Judge found that the police officer held a reasonable suspicion and declined to exclude the evidence obtained during the search. That ruling was upheld on appeal. In considering when information becomes stale, Kourakis CJ said:[194]
It is not possible to answer this question in the abstract and divorced from the facts of each particular case. The reasonableness of a suspicion requires attention to the reasoning process by which it is formed. In this case, the Judge properly identified the critical importance of the allegation that the applicant’s involvement was in large amounts of the drugs, that he was part of a large syndicate and was close to the centre of that operation. Importantly, given that the warrant was executed on the applicant’s residence, the information was that he kept everything inside his home.
It is in the nature of large drug trafficking operations that they continue for some time, and often until detected and disrupted by police. The period of some months between the report and the search did not therefore detract at all from the cogency of the information in the circumstances of this case.
[193] [2022] SASCA 5.
[194] McHugh v The Queen [2022] SASCA 5 at [11]–[12] per Kourakis CJ (with whom Lovell JA and Doyle JA agreed).
Assessment of witnesses
I formed a favourable impression of each of the witnesses who gave evidence on the voir dire. I find that each was doing his best to tell the truth. Defence counsel did not suggest that any of the witnesses had lied, rather the challenge to their evidence centred on the sufficiency of the information upon which each witness asserted he entertained a suspicion sufficient to enliven the powers in s 67 SOA and the assertion that the first two searches were intelligence gathering exercises only.
For example, it was not suggested that the VDP30 was created by Detective Schollar with the intention of misleading Detective Fahy.
First Karoonda search
I accept the unchallenged evidence of Detective Schollar that prior to the first Karoonda search, there was an extensive period of consultation with Detective Fahy leading up the preparation of the tactical operation order and Detective Fahy was present at the briefing. Detective Fahy had asked Detective Schollar a series of questions before Detective Schollar prepared the PD23A.
Was there a genuine suspicion?
I accept Detective Fahy’s unchallenged evidence that he met with Detective Schollar in the period prior to the search on 26 September 2019 and talked through the investigation with him. He was then involved in the planning and preparation for the search on 26 September 2019. I accept Detective Fahy’s evidence that in the days leading up to 26 September 2019 he had already formed a suspicion that he considered justified the use of his general search warrant. That suspicion was that there was going to be evidence of commercial cannabis cultivation occurring at the Karoonda property but that the stage of the process was unknown. I find that he reviewed VDP30 after he started work at 6pm on 26 September 2019 but was already aware of the following information:
1.Drug and Organised Crime Task Force were conducting a significant investigation approved at branch level to investigate cannabis cultivation.
2.Cirillo owned the property at Karoonda.
3.Cirillo had previously been linked to cannabis cultivation offences. Cirillo’s offender history was provided in the tactical operation order. A cannabis crop had been located previously at the Karoonda property.
4.Items involved in outdoor commercial cannabis cultivation had been found at a property linked to him in April 2019, in particular, a backpack smelling of cannabis.
5.Cirillo had been at the Karoonda property in the days or weeks leading up to the search.
6.The intelligence regarding the cannabis crop planned to be ripped was that this was in a house in Murray Bridge and not Karoonda.
I find that Detective Fahy was present at a briefing by Detective Schollar on 26 September 2019 during which Detective Schollar conveyed the information contained in the tactical operation order: VDP44.
Although VDP30 does not contain all of the information in the intelligence report in VDP29 I am satisfied that Detective Fahy was aware that the intelligence regarding the planned rip related to a house at Murray Bridge. In other words, he was aware of the contents of VDP29. Accordingly, to the extent that VDP30 was misleading by omission, I find that Detective Fahy was not misled. I find that the timing of the provision of VDP30 to Detective Fahy is immaterial because Detective Fahy was already apprised of this information and had already formed his suspicion based on that and other information already in his possession.
In the circumstances, I do not consider it was necessary for Detective Fahy to interrogate further the sources of the information upon which he relied. The intelligence submissions each indicated that the source of the information was mostly reliable. Detective Fahy was entitled to rely upon information which the Intelligence Branch has assessed as mostly reliable.
I agree with the observations of Telfer DCJ in R v Vallelonga [2023] SADC 7 that the practice of a person other than the warrant holder filling in the PD23A does not promote the kind of independent assessment that should be engaged in each time a general search warrant holder is asked to use his or her warrant. Any tactical practice which risks giving the impression that the use of the warrant by a particular officer is being assumed should be avoided. However, the fact that Detective Fahy did not create the PD23A or make any of his own notes on it is immaterial because the evidence before me enables me to find that he did engage in an independent assessment of the information available to him before he determined to execute his search warrant.
Whilst there may well have been an expectation by Detective Schollar and others that Detective Fahy would execute his general search warrant, I find that this expectation did not influence Detective Fahy’s decision in any material way. In other words, Detective Fahy did not simply ‘rubber stamp’ or adopt the PD23A without independently forming his own suspicion based on information known and available to him. I accept his evidence that he had his suspicion well before he was given the PD23A and that it would not have mattered to him if he had not received that document until after the search.
I do not consider justified the criticism of Detective Schollar for including in the PD23A the words ‘it is necessary to search this property for evidence of offences committed against the Controlled Substances Act’. I accept Detective Fahy’s explanation of the rationale for including such a statement, namely that it is to document the purpose of the search and to confirm it is not a fishing exercise.
Accordingly, I am satisfied that Detective Fahy had a genuine suspicion that there would be evidence of commercial cannabis cultivation occurring at the Karoonda property but that the stage of the process was unknown.
Was there an ulterior purpose in executing the search warrant?
It is not necessary for a police officer who executes a general search warrant to seize any evidence or items of evidential value located during a search. Section 67 is not expressed in such terms. It would not be lawful to execute a general search warrant for the sole purpose of gathering intelligence. However, the fact that police gather or expect or intend to gather intelligence regarding the commission or suspected commission of an offence as an incident of the execution of a general search warrant does not render the search unlawful.
VDD67 reveals that covert field operations can occur during investigational phases of an operation under conditions and circumstances in which police presence cannot be disclosed. It is important to note that VDD67 expressly provides that no covert field operation involving entry to, or search of premises can occur unless justified by a warrant or other power or authority.
There is tension between the terms of VDD67 and the requirement in the general order, search warrants, to notify the owner or occupier of premises entered and/or searched in absentia as soon as possible. However, that is a matter for the Commissioner of Police who promulgates the general orders and for the relevant officer in charge of Serious and Organised Crime Branch to resolve. Failure to comply with a general order may attract disciplinary action. That is a matter for the Commissioner of Police.
I do not consider that the failure of Detective Fahy (or Detective Schollar) to notify Cirillo of the execution of a general search warrant on his property is relevant to the question of the lawfulness of each search. There were sound operational reasons not to do so. Further, a general order is not a legislative instrument but is an administrative instruction[195] and the requirements in VDD66 do not have statutory force. There is no obligation to notify the occupier or owner of the premises of entry and/or search in s 67 SOA.
[195] Police v Hodder [2016] SASC 70.
I am satisfied that the police had the following objectives prior to the search on 26 September 2019, which are set out in VDP44:
1.Covert search of structures on Lot 5, Stirling Well Road Karoonda
2.Covert search of suspected cannabis site (previous/current).
I accept Detective Schollar’s evidence that it was only when they located the prescribed equipment, other items associated with cannabis cultivation and cannabis in one of the structures on the property that a command decision was made to leave the premises and not search further. The evidence located was then to be used to develop further investigative strategies. There was no requirement for the evidence to be seized and it was reasonable in the circumstances for police to leave the evidence in situ and assess what had been located (but not seized) and document it for the purpose of determining the next phase of the investigation.
I am not satisfied that the sole or ulterior purpose of the execution of the search warrant was to gather intelligence.
Was the suspicion reasonable?
As assessment of reasonableness requires that I place myself in the position of the warrant holder, in possession of the same information, and consider whether, in the circumstances, the suspicion was reasonably held.
I conclude that it was reasonable for Detective Fahy to rely upon the following information:
1.Drug and Organised Crime Task Force were conducting a significant investigation approved at branch level to investigate cannabis cultivation.
2.Cirillo owned the property at Karoonda.
3.Cirillo had previously been linked to cannabis cultivation offences including a cannabis crop that had been located previously at the Karoonda property.
4.Items involved in outdoor commercial cannabis cultivation had been found at a property linked to him in April 2019, in particular, a backpack smelling of cannabis and irrigation pipe, gardening clippers, camouflage clothing and sheepskin shoe covers.
5.Cirillo had been at the Karoonda property in the days or weeks leading up to the search.
The information regarding Cirillo’s prior criminal history did not suggest that he had been involved in commercial cultivation of cannabis. Whilst his prior criminal history was dated and, in isolation of limited relevance, when combined with the intelligence from April 2019, it formed a basis to suspect that Cirillo had the experience, knowledge and a suitable property to cultivate a commercial quantity of cannabis. Recent attendances by Cirillo at a rural property owned by him but at which he did not reside or work, was also information upon which it was reasonable to rely in forming the suspicion.
The fact that there was intelligence suggesting other persons believed Cirillo had a hydroponic cannabis crop at Murray Bridge and not Karoonda is, in my view, information of some but limited relevance to a suspicion that there was evidence of commercial cultivation of cannabis at Karoonda. It was information from which it was reasonable to infer that other ‘significant drug persons of interest’ believed Cirillo was cultivating cannabis. There was no information connecting Cirillo to a house in Murray Bridge. However, Detective Fahy did not suggest that he relied upon this information when forming his suspicion that there would be evidence of a commercial crop at Karoonda and conceded that there was nothing to suggest the crop to be ripped was a commercial, trafficable or personal use cannabis crop.
Detective Fahy’s use of the word ‘equal chance’ that there would or would not be a cannabis crop at Karoonda does not derogate from his suspicion that there would be evidence of the commercial cultivation of cannabis at that location. Such evidence need not be a cannabis crop in situ but could be evidence establishing that there had been a crop on site or that preparations were being made for the cultivation of cannabis on that site.
I am satisfied that on the basis of the information available to Detective Fahy, it was reasonable to suspect that an offence against the Controlled Substances Act was being committed on the Karoonda property, or that something would be located there, which may afford evidence as to the commission of an offence against the Controlled Substances Act.
I find the first search at Karoonda was lawful.
The second Karoonda search.
The evidence located in the first Karoonda search was supplemented by further evidence gathered during surveillance of Cirillo and others. The warrant holder was Detective Schollar, who was the investigator and had oversight of Operation Argon. I accept Detective Schollar’s evidence that he relied upon the following information in executing his general search warrant on 13 February 2020:
1.Cirillo’s criminal history involving hydroponic and outdoor cannabis cultivation in 2003 and 2007.
2.Intelligence reports dated November 2014, 27 July 2014 and 28 July 2014 suggesting that Cirillo had been involved in the cultivation of cannabis.
3.The intelligence report linking Cirillo to a backpack containing items consistent with involvement in cannabis cultivation.
4.Cirillo’s attendance at Karoonda as recently as 14 September 2019.
5.Satellite data suggesting moisture levels on an area of the property consistent with the cultivation of plants.
6.The information in the tactical operation order.
7.The items located in the search on 26 September 2019, in particular cannabis and prescribed equipment.
8.Attendances by Cirillo and others at Bunnings between 22 September 2019 and January 2020 where items consistent with the cultivation of cannabis were purchased.
I am satisfied that Detective Schollar had a genuine suspicion that there would be evidence of the commission of offences against the Controlled Substances Act or items used in the commission of those offences and in particular evidence of a commercial crop of cannabis at the Karoonda property.
I conclude that it was reasonable for Detective Schollar to rely upon the information set out above in forming his suspicion. In any event, the location of the prescribed equipment, items involved in the cultivation of cannabis and cannabis on 26 September 2019 was a sufficient evidentiary basis to justify the execution of the search warrant on 13 February 2020.
The second Karoonda search was lawful. That search revealed a previous cannabis cultivation site and a lone self-seeding cannabis plant.
The first Coonalpyn search and the third Karoonda search
Further evidence was gathered between the second Karoonda search and the first Coonalpyn search. Listening devices recorded conversations between Cirillo and Kouvaris about the cultivation and harvesting of cannabis. Aerial surveillance showed Ierace, Cirillo, Giannini and Andriano attending the property at Venning Road, Coonalpyn walking into the scrub carrying bags. The footage revealed that the group of four were working in an area similar to the area observed at Karoonda.
Notwithstanding my earlier observations regarding the undesirability of the practice of a person other than the warrant holder filling in the PD23A, I am satisfied that Detective Duance and Detective Cooper each made an independent assessment of the information provided to them in the respective PD23As.
Detective Duance had already been involved in the search on 26 September 2019 and 12 February 2020. He said the information in the PD23A (VDP41) was consistent with what was already known to him. I accept his evidence that he suspected there would be evidence of the commission of offences involving the cultivation of cannabis. Given the information available to him at the time, and in particular the evidence located in the previous two searches, I am satisfied that his suspicion was a reasonable one.
I find that the third Karoonda search was lawful.
The circumstances in which Detective Cooper came to execute his search warrant more sharply attract the criticism of the practice of the filling in of the PD23A. Detective Cooper had minimal involvement in Operation Argon at the time he was presented with the PD23A. He was given the PD23A only a matter of hours before arriving at Coonalpyn. Without more, this gives the appearance that it was assumed he would execute his general search warrant.
However, the information set out in VDP40 was extensive and referred to the results of the previous searches of the Karoonda property, the aerial surveillance of Cirillo and others attending the Coonalpyn property and the recorded conversations regarding the harvesting of cannabis. Given the nature of the information contained in VDP40 and its source, I do not consider there was a need for Detective Cooper to make any further inquiry regarding the source of the information or its reliability. It was reasonable for Detective Cooper to have ‘faith’ in what was provided to him.
I am satisfied that Detective Cooper entertained a genuine suspicion that police would locate evidence of the cultivation of a controlled plant. I am satisfied that this suspicion was reasonable.
I find that the first Coonalpyn search was lawful.
The second Coonalpyn search
The evidence reveals that police attempted to search for other cannabis crop sites when they discovered the first crop site on 22 March 2020. A drone was used and police horses, but the second crop site was not discovered. On 25 March 2020 an intelligence report (VDP42) was received which said that there was another outdoor crop in the scrub at the Coonalpyn property. Detective Cooper did not sight that report but said he was confident that the information was likely to be right. That assertion was not challenged or tested. The report itself noted the source was untested but the intelligence evaluation was noted as being corroborated. Details of the location of the crop were provided in the report. This of itself suggests someone with first hand knowledge of the crop.
I accept that Detective Cooper genuinely suspected there would be evidence of another cannabis crop at the Coonalpyn property. His state of suspicion was based upon the additional information, combined with the information available to him prior to and as the result of the first Coonalpyn search.
Absent evidence to undermine his level of confidence in the information, and bearing in mind the nature and detail of the information, I am satisfied that his suspicion was reasonable.
The third Coonalpyn search was lawful.
It would seem that the owner of the Coonalpyn property became aware of the first search at the time it was being conducted. In those circumstances, there would appear to be compliance with the requirement in the general order to notify the owner or occupier. However, if the owner was not notified as soon as possible, for the reasons I have already outlined, the failure to do so does no render the search unlawful.
Residential searches
In light of the evidence obtained during the first four searches, it was reasonable to suspect that there may be anything that may afford evidence of the commission of an offence.
The searches of each of the accused’s residential premises was lawful.
The application is refused.
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