R v Costanzo - [2019] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COSTANZO
[2019] SADC 12
Reasons for Decision of His Honour Judge O'Sullivan
8 February 2019
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Rule 49 application to exclude evidence of the search of the accused's property. The investigating officer applied for a drug warrant on the basis of the information provided by an electricity officer and a Crime Stoppers report.
Held: There were sufficient reasons for the investigating police officer to hold reasonable suspicions - search of premises lawful - application to exclude evidence dismissed.
Electricity Act 1996 s 49; Controlled Substances Act 1984 s 32(1), s 33B(3), s 52; District Court Criminal Rules 2014 r 49(1)(h), referred to.
Bunning v Cross (1978) 141 CLR 54, considered.

R v COSTANZO
[2019] SADC 12
Introduction

Silvano Costanzo (‘the accused’) is charged with the offences of cultivating controlled plants for sale and trafficking in a large commercial quantity of a controlled drug.[1]
[1] See ss 33B(3) and 32(1) Controlled Substances Act 1984.
The particulars of the first count are that between 1 September 2017 and 13 October 2017 at Gilles Plains, the accused cultivated controlled plants, namely three 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 intended to sell any of them or their products.
The particulars of the second count are that on 12 October 2017 at Gilles Plains, the accused trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact that the substance was a controlled drug.
Ms Tarryn Ruediger is a Revenue Protection Investigator employed by SA Power Networks. Her duties include the investigation of the theft of electricity.
At approximately 8am on 12 October 2017, after receiving information that cannabis was being grown at the accused’s address at 23 Cowra Avenue, Gilles Plains (‘the Property’), police attended with Ms Ruediger, in order to investigate the theft of electricity and suspected illegal cultivation.
After Ms Ruediger entered the Property and reported suspicious circumstances suggestive of the cultivation of cannabis to the police, the police subsequently obtained a drug warrant.
The police returned to the Property at approximately 10.30am on 12 October 2017, searched the Property and located three cannabis plants in a rear bedroom which were being grown hydroponically (Count 1). In another room, police found two plastic bags containing a total of 2.68 kilograms of dried female cannabis material in 13 resealable bags (Count 2).
The Application
By notice dated 10 September 2018, the accused applied for an order or directions pursuant to r 49(1)(h) of the District Court Criminal Rules 2014. The first order or direction sought was:
1. That the Prosecution not be permitted to lead evidence of, nor make reference to, the “fruits” of a search conducted on 12 October 2017 at 23 Cowra Avenue, Gilles Plains, South Australia by one Tarryn Ruediger, Revenue Protection Investigator of SA Power Networks.
…
The grounds relied upon are as follows:
1.1That the search was unlawful in that, Ms Ruediger at all material times acted as a trespasser.
…
The second order or direction sought was:
2. That the Prosecution not be permitted to lead evidence of, nor make reference to a second and subsequent search of the same premises that day.
The grounds relied upon are:
2.1 In this instance, whilst police had obtained a Controlled Substances Act warrant to enter the premises any reasonable suspicions they held were tainted by earlier actions relating to the initial entry and search.
Voir Dire Hearing
A voir dire hearing was held. Evidence was called from Ms Tarryn Lee Ruediger and Constable Holly Ann Morgan.
Evidence of Tarryn Lee Ruediger
Ms Ruediger gave evidence that she has been employed as a Revenue Protections Officer at SA Power Networks for almost nine years and that this role involves the investigation of fraud and theft of electricity, including at residential properties. She is a qualified electrician.
On 8 October 2017, Constable Morgan of South Australia Police, emailed SA Power Networks in relation to the Property as the police had obtained information about a suspected hydroponic cannabis operation and wanted information about the electricity usage at the Property. That email was directed by SA Power Networks to Ms Ruediger.
Ms Ruediger gave evidence that typically, an average house uses between 10 – 20 kilowatts of electricity per day, and that in her experience, cannabis ‘grow houses’ can use between 30 – 500 kilowatts per day. As a consequence of this significant increase in usage, it is highly unusual for those growing cannabis not to steal electricity.
Following an email exchange with Constable Morgan, she accessed the SA Power Networks system in relation to the Property and noted that there had been significant issues in relation to SA Power Networks officers accessing the meter box at the Property because of a locked gate and high fence. Further, the meter showed power usage much lower than that of the average house.
Ms Ruediger gave evidence that she is able to force entry to properties when police are present through a power given to her under s 49 of the Electricity Act 1996 (SA) (‘Electricity Act’), and on that basis suggested the police also attend at the Property. She had not previously attended at the Property and on 12 October 2017 attended at approximately 8am, prior to Constable Morgan and other members of the police arriving.
Upon Ms Ruediger’s arrival, she determined that the gate was locked and that it made up part of a 1.8 metre high fence which obscured visibility into the Property. When Constable Morgan arrived, Ms Ruediger informed Constable Morgan that she had arrived early and attempted to contact the accused via telephone but had received no answer. She then told Constable Morgan that the only way to access the Property was for her to scale the fence using the two ladders she had brought with her. Ms Ruediger used the ladders to access the Property and once inside the Property, knocked on the front door but received no answer. She proceeded to make her way to the back of the house as her records indicated that the meter box was located in the carport. Her intention in entering the Property was to access the service fuse and meter box to see if she could observe any indication of an occupant, or smell anything on the way to the meter box.
As she walked around the outside of the Property, Ms Ruediger observed a lean-to by the back of the house with windows and a door that had been obscured with silver material. She looked through a hole in the silver material and observed a lot of hosing. Further along by a roller shutter, she detected a faint smell of cannabis and heard the sound of fans operating. Ms Ruediger then continued to the meter box which she inspected and observed no sign of a bypass. She gave evidence that despite this, the cable that fed the meter box ran from the front of the house and travelled through the roof, providing multiple points at which one could to cut into that cable. Accordingly, she said the absence of a bypass in the meter box was no guarantee that there was, in fact, no bypass in place.
She took a reading of the energy and solar usages at the Property and noted that they were low for a residential property but typical for a grow house utilising a bypass. She then returned to the front of the house, went back over the fence, and reported her observations to Constable Morgan. Armed with that information, Constable Morgan returned to the Holden Hill Police Station and obtained a drug warrant whilst Ms Ruediger remained at the Property making notes. When Constable Morgan returned, Ms Ruediger entered the Property again, this time in the company of the police and took a reading of the current at the service fuse at the front of the house.
I questioned Ms Ruediger about the meter readings. She said there was a discrepancy between the reading of the current she obtained at the service fuse and the reading of the current she obtained at the meter box. Her evidence was that she first took an unclear meter reading at the service fuse and then took a tong reading of the meter box. She explained that there was a discrepancy between the two readings that could not be explained by the lack of clarity in the first reading.
Ms Ruediger formed the view that the Property was a grow house and that because the amount of electricity being used was not being properly recorded through the meter, a bypass was in place.
Ms Ruediger was cross-examined. She gave evidence that she has no training in law enforcement and that no one has explained the workings of the Electricity Act to her. She said that she originally entered the Property under the authority of s 49 of the Electricity Act and that, so far as she is aware, that is the only source of power she has to enter a property. She gave evidence that she and Constable Morgan had worked together on two or three previous occasions, that her entrance to the property was predicated on the email communications between herself and Constable Morgan and that prior to 9 October 2017, she held no suspicion that the Property could be a grow house. The information provided to her by Constable Morgan indicated that she should investigate the Property. Her suspicion was formed when she saw all the access issues surrounding the reading of the meter from the SA Power Networks database. Following this, Ms Ruediger said that she called the telephone number listed in the SA Power Networks system for the occupant of the Property at least once on the day she attended at the Property but received no answer.
Ms Ruediger was further cross-examined on the observations she made on her first search of the Property. She agreed that by looking through the hole in the silver material obscuring the screen door to see bottles and hosing, she had effectively searched the house. She also agreed that in her statement, she had said she saw some strange wiring when she looked through the silver material obscuring the screen door. When cross-examined about the representations she made to Constable Morgan about her search, Ms Ruediger stated unequivocally that she had described the smell of cannabis inside the Property as being faint. She also deposed that she noted no smell of cannabis at the front of the Property from the street, and that when she had completed her initial search, she had not yet checked the wiring in the roof so had no definitive proof that a bypass was in place. Ms Ruediger also gave evidence that she did not believe she saw bottles of hydroponic nutrients when she looked through the hole in the screen door, just that she saw bottles and hoses.
Evidence of Constable Holly Ann Morgan
Constable Morgan gave evidence. She confirmed that she was on duty on 12 October 2017 and attended at the Property at approximately 8am that day. She had received information from Crime Stoppers in September 2017 that cannabis was being grown at the Property. That Crime Stoppers information alleged a strong smell of cannabis in the vicinity of Cowra Avenue generally. Prior to attending at the property on 12 October 2017, Constable Morgan did a ‘drive by’ and also walked along Cowra Avenue. Her experience told her that the smell of cannabis was likely emanating from the Property due to its appearance (the Property had a very large fence and roller shutters on the windows).
Constable Morgan gave evidence that on 8 October 2017, she sent an email to SA Power Networks requesting a power check on the Property. Ms Ruediger responded to this email on 9 October 2017, which was the first occasion in which Constable Morgan received information regarding past access issues associated with the meter box at the property.
At 8am on 12 October 2017, she met Ms Ruediger at the front of the property in order to assist Ms Ruediger in gaining access to the meter box, however the large fence prevented this. Constable Morgan said that she and Ms Ruediger had not previously spoken about what they would do when they met at the property, and at this stage Ms Ruediger attempted to contact the accused via telephone so that they would not have to break into the Property. When the call went to message bank, Ms Ruediger told Constable Morgan that she had power under the Electricity Act to enter the Property. Ms Ruediger then used her ladders to scale the fence whilst Constable Morgan waited at the front of the property. Constable Morgan gave evidence that Ms Ruediger conducted her investigation and when she returned, told Constable Morgan that she could hear humming around the side of the house, could smell the distinct smell of cannabis, and saw a hose connected to a barrel through the back door.[2] She could not recall Ms Ruediger’s exact wording regarding the smell of cannabis, only that a smell was present.
[2] T35.
With the information Ms Ruediger had given her, Constable Morgan returned to the Holden Hill Police Station and spoke to her senior officer, Chief Inspector Stephen Kameniar, about obtaining a warrant. She obtained a drug warrant under s 52 of the Controlled Substances Act 1984 (SA) (Controlled Substances Act) and returned to the Property at approximately 10.30am. Constable Morgan recalled trying to telephone the accused, and when that was unsuccessful, other officers used tools to pull the electric gate off its rails before police entered the Property. Another officer knocked on the front door and when there was no answer, police forced entry and commenced searching the property.
Police located three cannabis plants being grown hydroponically, seven lamp shades, seven light globes and seven ballast boxes. Police also found a bag containing two resealable bags of dried cannabis and another plastic sack containing 12 resealable bags of dried cannabis.[3] Police left a ‘calling card’ for the accused to attend at the Holden Hill Police Station. He subsequently attended Holden Hill Police Station on 13 October 2017 at which time he was arrested and charged.
[3] T 36.
Constable Morgan was cross-examined. She gave evidence that this occasion was her first raid as an investigating officer and her first time making an application for a drug warrant under s 52 of the Controlled Substances Act. Constable Morgan said that she had received the information from Crime Stoppers with an action to investigate the information. The anonymous Crime Stoppers informer did not know where on Cowra Avenue the alleged grow house was located. She described attending at Cowra Avenue on two occasions prior to 12 October 2017, although she had not been to any other house on that street. She said that in order to obtain a drug warrant under s 52 of the Controlled Substances Act, she must convey suspicious circumstances to her senior officer who then makes a determination. She used the information that Ms Ruediger gave her of a bypass, humming noise, a smell of cannabis and the sight of pipes hooked up to bottles, to obtain the necessary drug warrant. She maintained that she told the absolute truth of these suspicions to her senior officer.
Constable Morgan agreed that in her application for a drug warrant she detailed a strong smell of cannabis, a humming sound, that power had been diverted, and that hydroponic nutrients had been seen inside the house. She told the court that she had told her senior officer that power had definitely been diverted because Ms Ruediger had told her there was low power usage; Constable Morgan had presumed that power had been diverted because of this. She said that the reference to a smell of cannabis came from Ms Ruediger, however she cannot recall whether Ms Ruediger had described it as strong or faint. Constable Morgan maintained that what was written in the warrant application was what had been said at the time, despite the fact that the level of odour was not recorded in her contemporaneous notes. She agreed that the only source for the information that power usage was low, that a strong smell of cannabis and a humming noise were present, and that there were hydroponic nutrients inside of the house, was Ms Ruediger. Constable Morgan herself could not smell cannabis outside the Property on 12 October 2017.
Constable Morgan was also cross-examined on whether she contacted Ms Ruediger in order to have her enter the Property on behalf of the police, which she denied. She maintained that contacting SA Power Networks was a standard line of enquiry that police could pursue when investigating a tip-off about a grow house. In one of her emails, Ms Ruediger told Constable Morgan that because of the low power usage recorded, if there was a grow house at the Property a bypass would also be in place.
Constable Morgan was also cross-examined in relation to her application for a drug warrant which was received as Exhibit VDD8.
Constable Morgan confirmed that she prepared the typed parts of Exhibit VDD8, with Chief Inspector Kameniar providing the hand-written notations on the record of warrant application.
Constable Morgan was cross-examined on the grounds upon which the warrant was sought, namely:
At about 0800 hrs police attended above address re crime stoppers drug action. Police attended with OTR, entered yard under OTR authority. Police have identified that the power has been diverted, strong smell of cannabis, humming sound from inside and hydroponic nutrients inside house. Police require warrant to enter premises to complete investigation. Police have strong grounds to believe there is a hydroponic cannabis crop inside premises.
The handwritten notation from Chief Inspector Kameniar is that:
Drug action – Crime Stoppers - anonymous
Police requested OTR assistance.
Power usage- has access issues due to being in carport – usage was very low which is suspicious
Occupant not home.
…
The first ground was that police identified that the power had been diverted. Constable Morgan said the basis upon which that ground was put forward was information that there was low power usage at the address from Ms Ruediger. It was put to Constable Morgan that the assertion that power had been diverted was a lie. Constable Morgan denied that proposition but accepted it was a presumption based on the information in relation to a lower power usage.[4]
[4] T47.14-48.14.
The next ground was ‘a strong smell of cannabis’. It was put to Constable Morgan that that could only have come from Ms Ruediger, a proposition with which she agreed. She also agreed that it was not written in her notebook that there was a strong smell of cannabis but she had written that ‘OTR attended and smelt it’.[5] Although defence counsel sought to make much of Ms Ruediger’s evidence as to the faint smell of cannabis, there is clear evidence from Ms Ruediger that there was a smell of cannabis. I pause to note that the Crime Stoppers report recorded a strong smell of cannabis.[6]
[5] T49.25-.26.
[6] As to the strong smell of cannabis, see T48.23 – 49.6, T51.17-20, T52.38-53.3.
The third ground is concerned with nutrients seen from inside the house. Constable Morgan described the source of that information as ‘drug paraphernalia’. She agreed that there was no reference to nutrients in her notes but in her evidence said that if she wrote it in the application for a warrant, then it was said at the time. She confirmed that at the time she was making the application, that was what she must have recalled from the conversation, but did not put it in her notes.[7]
[7] T49.10 – 50.35.

The fourth ground is a humming sound from inside. Constable Morgan confirmed that information came from Ms Ruediger.[8]
[8] T53.4 – 8.
Constable Morgan also agreed that when the information first came to her via Crime Stoppers, she did not have suspicions or enough suspicion to obtain a warrant. In pursuit of a line of enquiry, she went to the OTR in order to conduct enquiries into the power usage of the address. Constable Morgan denied that she was trying to avoid the Controlled Substances Act by inferring there must be some sort of problem with the electricity at the property.[9]
[9] T54.3 – 56.27.
Constable Morgan also confirmed that she relied on other information in issuing the warrant, in particular the Crime Stoppers information.[10]
[10] T59.28 – 36.
Constable Morgan was re-examined. She deposed that she customarily compiles her notes at the time that events occur or as soon as possible afterwards. She does not include every possible detail in these notes, only a summary of the most important features of an investigation as they only exist to refresh her memory. In her notes, she does not make reference to the intensity of the smell of cannabis, however the Crime Stoppers information described it as a strong smell and this was one of the features of her application for a drug warrant. Her statement in the application that the power had been diverted was a reference to the email she had received from Ms Ruediger saying that if a grow house was present, there would be a bypass. She could not recall whether she made her notes before or after the warrant application.
The email stream between Ms Ruediger and Constable Morgan was tendered as VDP3 and the drug warrant and application for the drug warrant were tendered as VDD7 and VDD8 respectively. Photographs of the Property were also tendered, along with a bundle of electricity statements and a disc containing a video walkthrough of the Property.
The accused did not give evidence.
Defence Counsel’s Submissions
Mr Aitken made submissions on s 49 of the Electricity Act. For the purpose of this matter, that section has been reproduced below:
Division 3—Powers relating to installations
49—Entry to inspect etc electrical installations
(1) An electricity officer for an electricity entity may, at any reasonable time, enter and remain in a place to which electricity is, is to be, or has been, supplied by the entity—
(a) to inspect electrical installations in the place to ensure that it is safe to connect or reconnect electricity supply; or
(b) to take action to prevent or minimise an electrical hazard; or
(c) to investigate suspected theft of electricity.
(2) In an emergency, an electricity officer may exercise a power of entry under this section at any time and, if necessary in the circumstances, by the use of reasonable force.
(3) When an electricity officer enters a place under this section, the electricity officer—
(a) may be accompanied by such assistants as the electricity officer considers necessary or appropriate; and
(b) may take any vehicles or equipment the electricity officer considers necessary or appropriate for the functions the electricity officer is to carry out in the place.
(4) An electricity officer may not enter a place by force in an emergency unless accompanied by a member of the police force.
(5) If in the opinion of an electricity officer an electrical installation is unsafe, the electricity officer may disconnect the electricity supply to the place in which the installation is situated until the installation is made safe to the satisfaction of the electricity officer.
There is no dispute that at the relevant time Ms Ruediger was an electricity officer acting for an electricity entity. The main thrust of Mr Aitken’s first submission was that Ms Ruediger acted outside the scope of the powers given to her by s 49 and thereby became a trespasser. Mr Aitken submitted that ‘reasonable time’ in s 49(1) generally means a period of time determined by trade, practice or custom and that no notice had been given to the accused in relation to the entry and search of the Property beyond the telephone call made by Ms Ruediger. Accordingly, he submitted that the search did not occur at a reasonable time.
Second, Mr Aitken submitted that prior to the searches, Constable Morgan knew that she did not have a sufficient suspicion to obtain a warrant under the Controlled Substances Act. It was submitted further, that prior to the emails on 8 and 9 October 2017, Ms Ruediger also had no suspicion in relation to power usage at the Property. On that basis, Mr Aitken submitted that Ms Ruediger only had a general suspicion, based on estimated low power usage at the Property which was not sufficient to enliven her powers to search under the Electricity Act. Still further, he argued that the powers bestowed by the Electricity Act must be tightly construed as they are not designed to go beyond the significantly wider powers of general police search warrants. As such, Mr Aitken submitted that the proper interpretation of Ms Ruediger’s powers should be construed to mean that whilst she is able to check meter boxes and other such electricity points, she does not have the right generally to search a property.
In developing his argument, Mr Aitken observed that that Crime Stoppers information was received on 24 June 2017, some three and a half months before the searches on 12 October 2017. He noted that on two occasions after 24 June 2017, Constable Morgan attended the Property and detected no smell of cannabis. Mr Aitken argued that on this basis there were no sufficient grounds for Ms Ruediger to hold a reasonable suspicion that would enliven her power to search under s 49 of the Electricity Act.
Third, Mr Aitken submitted that ‘investigate’ in s 49 of the Electricity Act does not extend to what he called ‘snooping around’.[11]
[11] T68.
Fourth, Mr Aitken submitted that the evidence should be excluded as the information Constable Morgan conveyed to her senior officer, as recorded in the application for a drug warrant[12] was misleading and that she had ‘massaged the truth’. He emphasised the apparent discrepancies between what Ms Ruediger told the Court she conveyed to Constable Morgan following her initial search and the application for a drug warrant. These are:
·That power had been diverted;
·That there was a strong smell of cannabis; and
·That hydroponic nutrients were present inside of the house.
[12] Exhibit VDD8.
Mr Aitken submitted that these assertions were, at their lowest, a massaging of the facts, and at their highest, deceptive or misleading information. He emphasised that Ms Ruediger’s information differed from what was in the application for a drug warrant as she had described the cannabis smell as faint and had described seeing bottles and hoses rather than hydroponic nutrients. Ms Ruediger had also said that after her first search, she did not yet have any tangible proof that a bypass was in place. Ultimately, Mr Aitken submitted that if the Court were to find that the statements made by Constable Morgan in her warrant application were incorrect, misleading or deceptive, then accordingly, the warrant must be invalid. Further, if the warrant is invalid, then the Court should direct that all incriminating evidence obtained during the second police search be excluded under the Bunning v Cross[13] discretion.
[13] (1978) 141 CLR 54.
Prosecution Counsel’s Submissions
Mr Macura for the prosecution submitted that it was appropriate for Ms Ruediger to rely upon s 49 of the Electricity Act to enter the Property as she had a suspicion that was genuinely held at the time of her search. The concept of ‘reasonableness’ did not factor into the search beyond the time at which it was to be conducted. On that point, Mr Macura submitted that ‘reasonable time’ in s 49(1) was related to what time of day the search was conducted and not the amount of notice to be given to the occupant.
He submitted that contacting SA Power Networks to request a check of power consumption was an appropriate line of enquiry a police officer can make when gathering information about a potential serious drug offence. This did not invalidate Ms Ruediger’s suspicion under s 49, and accordingly Mr Macura submitted that she had sufficient statutory licence to scale the fence using ladders and enter the property to investigate the suspected electricity theft.
Mr Macura further submitted that Ms Ruediger’s observations, made as she walked to the meter box, such as hearing humming, noticing a faint smell of cannabis and her observations upon looking through the hole in the screen door, were incidental to investigating the suspected theft of electricity and therefore do not invalidate her reliance upon the s 49 authority, nor the ability of Constable Morgan in turn to rely upon Ms Ruediger’s observations.
In relation to the warrant, Mr Macura submitted that Constable Morgan had conflated the reference to a strong smell of cannabis in the Crime Stoppers report with Ms Ruediger’s description of a faint smell and, whilst the application could have identified the sources of that information more clearly, the reference to a ‘strong smell’ was accordingly not without foundation. As to the reference to power being diverted, he argued that this was simply a poor expression chosen by Constable Morgan to refer to Ms Ruediger’s email suggesting a bypass was in place and Ms Ruediger’s observations made of the meter and suspiciously low power usage. Finally, Mr Macura submitted that the Court should draw an inference between the bottles and hoses Ms Ruediger reported seeing and the reference to hydroponic nutrients.
Findings
Ms Ruediger
I found Ms Ruediger to be a credible, clear and thoughtful witness with good recall of the events in question and a firm understanding of her duties as an employee of SA Power Networks. As I have noted, there is no dispute that at all relevant times she was an electricity officer for an electricity entity. I accept her evidence in relation to the formation of her suspicion of electricity theft following the email from Constable Morgan on 8 October 2017. I also accept her evidence in relation to her search of the SA Power Networks system and her observation that there had been access issues relating to usage checks at the property as well as low recorded power usage in the past.[14] In my view this was sufficient to enliven her powers to search the Property under s 49 of the Electricity Act. I find that by using ladders to enter the Property and check the meter and fuse boxes, Ms Ruediger was investigating the suspected theft of electricity. She did not enter the Property using force.
[14] T6.24-8.17, Exhibit VDP3, Exhibit VDD4.
There is an issue about ‘reasonable time’. The submissions made by Mr Macura were that in the context of the section, ‘reasonable time’ relates to the time of day in which the search is to occur. Were it otherwise, the reference to ‘reasonable’ would qualify the word ‘notice’. I accept that submission and find that a search conducted at 8am or later is reasonable for the purpose of the section.
As to the submission that the Electricity Act does not extend to ‘snooping around’, an ability to investigate potential electricity theft presupposes a degree of action; ‘investigate’ on any reading is an active expression rather than passive. Ms Ruediger’s observations of hearing humming, smelling cannabis and observing suspicious bottles with hoses on her way to the meter box, does not mean that Ms Ruediger went beyond the scope of her power. I do not accept that Ms Ruediger was conducting an investigation that was not associated with her functions under the Electricity Act.
Constable Morgan
Constable Morgan was a careful and credible, although at times nervous, witness. Whilst occasionally her inexperience as an investigating officer was apparent, she was methodical in her evidence and whenever uncertain she said so. It is apparent that she was cautious and ensured she followed correct procedure. So much so is evident from her contact with SA Power Networks to establish electricity usage prior to seeking a drug warrant.
As to the strong smell of cannabis in her application for a warrant under the Controlled Substances Act, there is no dispute that the anonymous reporter to Crime Stoppers made reference to a strong smell of cannabis in the Crime Stoppers information in June 2017. Ms Ruediger was firm on the point that on 12 October 2017, she smelled a faint smell of cannabis and reported as such to Constable Morgan. Constable Morgan gave evidence that she based her application for a drug warrant on the information Ms Ruediger had given her.[15] However, when she was re-examined by Mr Macura, Constable Morgan agreed that the Crime Stoppers information referencing a strong smell had been one of the features of her warrant application.[16] I accept that Constable Morgan was telling the truth that she had been entirely truthful when informing her senior officer of her suspicions when compiling the application for a drug warrant. Although Ms Ruediger only reported a faint smell of cannabis, in my view, Constable Morgan had in mind the Crime Stoppers information when completing the application for a drug warrant.
[15] T48.
[16] T58.
As to hydroponic nutrients, I accept Ms Ruediger’s evidence that she did not see or report seeing bottles of nutrients when she looked through the hole in the back screen door.[17] However, the reference to bottles and hoses observed by Ms Ruediger was accurate. Constable Morgan did not convey Ms Ruediger’s words accurately in her warrant application, however, I do not accept that in doing so, Constable Morgan was being knowingly or wilfully misleading or deceptive. In my view, Constable Morgan has attributed nutrients to what was described to her by Ms Ruediger.
[17] T28.
In relation to the reference to power having been diverted, there was no direct evidence of that at the time Constable Morgan applied for the issue of a drug warrant. Although Ms Ruediger had not yet observed any tangible evidence that a bypass was in place, it is evident from the email sent on 9 October 2017 and tendered as VDP3 that Ms Ruediger did tell Constable Morgan that ‘[t]he recorded usage is very low so if they are growing there will be a bypass’.[18] Further, Ms Ruediger gave evidence that prior to the application for a drug warrant by Constable Morgan, she suspected there was an electricity bypass somewhere between the service fuse on the front of the house and the meter box in the carport. When Ms Ruediger took a tong amp meter reading behind the meter box, the reading was low and in her experience, typical of a cannabis grow house with an electrical bypass.[19] Constable Morgan gave evidence that she had, based on these two pieces of information, assumed that electricity was being diverted although she did not have definitive proof.
[18] VDP3, page 1.
[19] T10.22-28, 12.8-14
Whilst Constable Morgan was too quick to categorise the presence of a bypass as definite, I do not find that she did so to mislead or deceive her senior officer, nor in Mr Aitken’s words to ‘massage the truth’. I do not accept that Constable Morgan was attempting to ‘massage the truth’ at any point in her application for a drug warrant.
I find that the information provided by Constable Morgan in the application for a drug warrant was accurate insofar as humming and a strong smell of cannabis are concerned but inaccurate about police having identified that the power had been diverted. Despite this, Chief Inspector Kameniar relied not on that fact but instead on the evidence of suspiciously low power usage. The reference to hydroponic nutrients was inaccurate and based on supposition in relation to bottles and hoses. Nonetheless that does not render the application inaccurate to the extent that there are no reasonable grounds for suspecting that an offence against the Controlled Substances Act has been, is being, or is about to be committed and that a warrant is reasonably required in the circumstances, in accordance with s 52(5) of the Controlled Substances Act.
The information, observations and considerations of Constable Morgan both from Ms Ruediger’s information and the Crime Stoppers information, leads firmly to the conclusion that Constable Morgan held reasonable suspicions that were objectively discernible and supported. I am satisfied that in her application for a drug warrant, Constable Morgan provided information to Chief Inspector Kameniar that was accurate, at least in relation to a strong smell of cannabis (Crime Stoppers) and a humming sound from inside (Ruediger). The reference in the application to power being diverted has to be seen against Chief Inspector Kameniar’s note that the power ‘usage was very low which is suspicious’. In my view, that is one of the bases upon which Chief Inspector Kameniar issued the drug warrant and there was ample information provided to Constable Morgan by Ms Ruediger to support that ground.
Consideration of the evidence given during the voir dire demonstrates that at different times over the course of three and a half months in 2017, there was a strong, faint or no smell of cannabis at the Property, and that on 12 October 2017, there was a humming noise emanating from the Property, the appearance of suspicious bottles and hoses inside the house and evidence of inconsistent and at times suspiciously low electricity readings from the meter box and service fuse. I am therefore satisfied that Constable Morgan’s application for a drug warrant was truthful, and as such, the search by the police was lawful and the items located as a result of that search by the police were therefore lawfully obtained.
Accordingly, I dismiss the application.