R v CUNNINGHAM - [2014] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CUNNINGHAM
[2014] SADC 98
Reasons for Ruling of His Honour Judge Barrett
2 June 2014
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
Police searched the accused's business premises and house looking for a fully automatic weapon they were informed he had had in his possession at an unspecified earlier time. No automatic weapon was found but two replica weapons and a spent rocket launcher were found in his house. The accused was not licensed to possess those items although as a collector he was licensed to possess many other armaments at his house. The accused objected to the searches on the ground that the police did not have reasonable grounds for suspecting that the fully automatic firearm was in the house.
Held: There were not reasonable grounds for the police suspecting that the firearm was in the house. The initial search was unlawful. However, in the exercise of the discretion the discovery of the items should be admitted.
Firearms Act 1977 s 32; Controlled Substances Act 1984 , referred to.
Yuen v The Police [2012] SASC 149; Trimboli v Onley (No 3) (1981) 56 FLR 321; Ercegovic v Higgins (1987) 45 SASR 189; Crowley v Murphy (1981) 52 FLR 123; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Applebee (1995) 79 ACrimR 554; Bunning v Cross (1977-8) 141 CLR 54; R v Lobban (2000) 77 SASR 24, considered.

R v CUNNINGHAM
[2014] SADC 98

A voir dire has been held to determine the admissibility of firearms found at the accused house in August of 2012. No date had yet been set for the trial or the judge.
The accused is charged with five breaches of the Firearms Act 1977 which relate to three firearms. Counts 1 and 3 allege that the accused was in possession of two imitation revolvers without holding a licence. Counts 2 and 4 allege that those two items were unregistered. Count 5 alleges that the accused possessed a rocket launcher without holding a licence. The rocket launcher is apparently the apparatus from which a rocket is launched. Once the rocket is launched, the launcher is discarded.
The facts upon which it is agreed I should rule are as follows:
On 21 August 2012 police received information that the accused had, at some earlier time, been in possession of a fully automatic firearm. I am to assume that the information was to the effect that the accused had the firearm about his person. It is not known how long before the report was made that the accused was said to be in such possession. It is not known for example whether the possession was hours, days, weeks or even longer beforehand. They are the facts upon which I am to assume the relevant police officer formed the suspicion giving rise to the police searches and ultimate seizures of the charged items.
On 22 August, the day after the receipt of the above information, police went more or less simultaneously to the accused’s business premises in Richmond and his house in Modbury North. Police went to both premises at about 9.30am. Six or so police went to the Richmond address. They there spoke to the accused and searched that premises. About two police went to the house at Modbury North but simply kept the premises secure until they were joined at about 11.30am by the police who had, by then, searched the Richmond property. None of the charged items was found at the Richmond property. No item relevant to these proceedings was found at that address.
Once at Modbury North police searched the house property including a shed. By the time the police were ready to search the house property the accused had contacted his solicitor, Mr Lister, who went to the house. On behalf of the accused, Mr Lister objected to the police searching the house property.
In answer to questions from Mr Lister, the officer in charge of the operation explained the suspicion which had led him to wish to search the premises, in effect, both at Richmond and at Modbury North. The terms of the officer’s explanations to Mr Lister and the facts upon which I am asked to rule are materially the same, namely that police had information that at some earlier, unspecified time, the accused had been in personal possession of a fully automatic firearm. I should add that it is agreed that civilians may not be licensed to carry fully automatic firearms. So any possession by the accused of such a firearm would necessarily be without a licence and would therefore be in contravention of the Firearms Act. From photographs that have been tendered it appears that the accused possessed many firearms and militaria at his house. While there are apparently other proceedings in the Magistrates Court concerning some other isolated items, I have been asked to accept that the accused was licensed to possess the other firearms and they were properly registered. It is also agreed that the accused was an office holder at a pistol club. He is a man in his early 50s. Police did not find any fully automatic firearm at either of the accused’s premises. The accused did not consent to the search of either of the premises. In fact, Mr Lister objected on his behalf to the search of the house largely in terms of the challenge now mounted to the legality of the search.
There are really two stages of the search of the house. Police searched the Richmond property exercising what they believed to be their powers of search contained in s 32 of the Firearms Act. While the charged items were not found as a result of that search, the fact and circumstances of that search are relevant to the legality of the search at the house.
The prosecution asserts that the search at Richmond was a lawful exercise of the s 32 search powers. The prosecution further asserts that the police commenced their search of the house in the lawful exercise of the s 32 search powers, but the charged items were not located until after the police purported to exercise, in addition, powers under a General Search Warrant. The exercise of that power arose in this way.
Early on in the search at Modbury North which relied on the s 32 search powers, police searched a shed. They there located a rocket. The rocket was not a firearm within the meaning of the Firearms Act, so the police contacted the Army to deal with that item. Having found the rocket the police decided to conduct a wider search of the premises using the powers of the General Search Warrant. Subsequently they found in one bedroom, the firearm the subject of counts 1 and 2, in the lounge room the firearm the subject of counts 3 and 4 and in another bedroom the rocket launcher, the subject of count 5.
As I understand the submission of Mr Abbot for the accused, there is no suggestion that the discovery of the rocket in the shed did not give rise to a suspicion sufficient to exercise the General Search Warrant powers. Rather, the submission is that the rocket was discovered in the course of an illegal search of the house (and incidentally of the Richmond address). Consequently, the original illegality taints the discovery of the three charged items.
The challenge in the first instance is to the illegality of the search. Of course the court may exercise a discretion to admit evidence notwithstanding that there has been an illegality or some impropriety in the search. The accused submits that the search was illegal and that I should not exercise the discretion to admit the evidence notwithstanding the illegality.
I turn first to the power to search contained in s 32 Firearms Act. Although there have been some more recent amendments to subsections of s 32 since 22 August 2012, it is agreed that s 32(3), then and now, reads as follows:
(3) A police officer may enter and search any premises in which the police officer suspects on reasonable grounds
(a) there is a firearm, firearm part, silencer, prohibited firearm accessory, mechanism, fitting, ammunition or licence liable to seizure under this section;
or
(b) a firearm is kept contrary to the security requirements of this Act.
(Italics added)
Mr Abbott focuses on the word “is” in s 32(3)(a). That word means, he submits, that the police officer must suspect on reasonable grounds that a firearm is, at the time of the proposed search, in the premises. That interpretation is supported by authority. In Yuen v The Police [2012] SASC 149, White J considered the meaning of s 32(3). His Honour concluded that the temporal meaning of the subsection was that the suspicion had to be contemporaneous with the activity permitted as a consequence. At [16] his Honour said:
These matters suggest that there is good reason to construe s 32(3) as requiring police officers to have the requisite suspicion at the time of each of the activities which it authorises.
His Honour found that approach consistent with the approach adopted by Holland J in Trimboli v Onley (No 3) (1981) 56 FLR 321.[1]
[1] See [17].
The accused submits that the police officer had an insufficient basis for suspecting on 22 August that the illegal firearm was in the premises. There are several aspects to the suggested insufficiency of the suspicion, certainly of the reasonableness of the grounds for the suspicion.
The first is that the source of the suspicion was second-hand. The police had not seen the accused in possession of a fully automatic firearm. They had only been told of the event. That fact assumes some importance it is argued, when one compares the facts of this case with the facts of Ercegovic v Higgins (1987) 45 SASR 189, a case to which my attention is drawn for an argument by way of analogy. I will turn to that argument shortly.
The second aspect is that the alleged personal possession by the accused of the firearm at an unspecified earlier time is an insufficient basis for a suspicion that on 22 August the gun was in the premises.
The third aspect is that the visit to two premises, not one, highlights the insufficiency of the suspicion attaching to any single property. How can the police claim to have a suspicion on reasonable grounds that the gun is at one premise when they are simultaneously planning to search two premises?
Before considering those submissions it is convenient to have regard to Ercegovic v Higgins ibid and the application by Johnston J of s 32 to the facts of that case.
In that case police searched the defendant’s car and found a firearm. The owner of the car tried to prevent the police searching the car. The issue in the trial in the Magistrates Court, and on appeal before Johnston J, was whether the police officer was in the lawful execution of his duty in searching the car. The lawfulness of the search depended upon the requisite suspicion about the presence of the gun in the car.
At that time the wording of s 32(2) relating to the search of, inter alia, vehicles, was different from the wording of s 32(3) which deals with the search of premises. Johnston J reproduced the two sub-sections as they were at the time. He noted the material difference in the wording and he then explained what he saw as the significance of that difference. His Honour said this:
Subsections (2) and (3) deal with the situation where the formation of the suspicion on reasonable grounds occurs when the officer does not have immediate access to the weapon. For ease of understanding, I set out again the two subsections:
“(2)A member of the police force may stop, detain and search—
(a)any vehicle upon which he suspects on reasonable grounds that there is a firearm liable to seizure under this section;
or
(b) any person whom he suspects on reasonable grounds of having in his possession a firearm liable to seizure under this section.
(3) A member of the police force may break into, enter and search any premises in which he suspects on reasonable grounds may be found a firearm liable to seizure under this section. [My emphasis.]”
The requirements are different in the two subsections. In the first, the officer must suspect that there is a relevant firearm upon the vehicle or that the person has such a firearm in possession; but in relation to premises a member of the force may break, etc into the premises in which he suspects on reasonable grounds may be found a relevant firearm.
Section 32 gives every indication of having been carefully drawn to provide for the right to seizure and the aid to seizure and I think that I must draw a distinction based on the difference to which I have pointed between subs (2) and subs (3). In my view, there is clearly a distinction between having a suspicion on reasonable grounds that a firearm may be in a certain place and is in a certain place. Without going into the reasons I think that there may be an explanation for the different requirement. I should say that I have reached this view without hearing counsel. I regret that I did not pick up the distinction until engaged in writing these reasons.
I will describe the two suspicions as being at a higher and lower level. At that time the suspicion in respect of premises was at the lower level.
At the end of his judgment Johnston J respectfully drew the attention of the authorities to the different wording between the two subsections. His Honour said:
(4) That consideration be given to whether it is desirable that the distinction I have pointed out between s 32(2) and (3) as far as the suspecting is concerned is desirable.[2]
[2] p 198.
It is plain that the legislature did take note of his Honour’s invitation. Despite the tendency of other amendments to the legislation increasing police powers in relation to firearms, the Parliament amended subsection 3 so that the level of suspicion relating to premises was raised to that which formerly related to vehicles and persons in subsection 2. I add that White J in Nguyen v Police was conscious of Johnston J’s decision when he spoke of the need for contemporaneity between the suspicion and the activity it authorises. Although in a different context, White J made specific reference to Ercegovic v Higgins in the very next paragraph.[3]
[3] [18].
I accept the accused’s submission that the relevant suspicion for the purposes of the search at each of the accused’s premises is that the police officer must have had a suspicion at the commencement of the search that the firearm was in the premises. The court must determine whether there were reasonable grounds for that suspicion.
Mr Abbott submitted that the facts of Ercegovic v Higgins are instructive in determining the reasonableness of the suspicion in this case. Of course it cannot be suggested that findings of fact in that case can be binding in this but Mr Abbott suggests that the comparison is helpful.
In Ercegovic v Higgins police had themselves seen two firearms at picker’s quarters in the Riverland occupied by the defendant. That was in February 1986. They later made enquiries about the registration of those firearms. In May 1986, some six weeks later, they returned to the picker’s quarters to follow-up their investigations. It was apparently known to the police that the defendant occupied at times both the picker’s quarters in the Riverland and a house in Adelaide. When the police were on their way to the picker’s quarters in March they saw the defendant approaching the premises in his car. They followed him and spoke to him when he stopped. Plainly it was possible the firearms were in the defendant’s car, but it was also possible that they might have been in the premises either in the Riverland or in Adelaide.
At first instance the learned Special Magistrate found that it was “a significant possibility” that the guns were in the car, and that, accordingly, there were reasonable grounds for the police to suspect that the guns were in the car.
On appeal Johnston J disagreed. After noting the high level of suspicion required regarding vehicles, as opposed to premises, he held that there was no reasonable basis for the police to suspect that the guns were in the car. That was partly because it would have been apparent that, while it was known to the police that the accused had spent some time living in Adelaide between their two visits, he was just making what might be described as a daily trip to and from the picker’s quarters. He was not in the process of moving his belongings from Adelaide to the Riverland. That made it possible, maybe even more likely, that the guns were in one or other of the premises rather than in the car. Effectively Johnston J allowed the appeal because it appeared the learned Special Magistrate had applied the less stringent test to the suspicion, and the facts did not support the more stringent test. Of course it is the more stringent test that must now be applied to the suspicion attaching to the premises in the present case.
Mr Abbot submits, in essence, if the facts in Ercegovic v Higgins did not pass the more stringent test, then the, perhaps less persuasive, facts of this case should not pass the test either. In that case police had seen the guns themselves. Here they are relying upon second-hand information. In that case there was a lapse of 6 weeks between the sighting of the guns and the date of apprehension. In this case the lapse of time is unknown – it may be greater. In that case the suspicion attached to a definite car, but in this case the police suspicion attached to two premises. They cannot really have known which was the more likely.
Mr Abbott submits two further matters upon which I do not place weight. No automatic gun was found at either premises. In Ercegovic v Higgins a gun was found. I do not accept that the failure to find the gun affects the appraisal of this suspicion. Mr Abbott pointed to a witness statement in which it was said that if a semi-automatic gun is fired in a certain way it gives the impression that a fully automatic is being fired. In other words, the informant may have been mistaken in telling the police that the accused was in possession of a fully automatic firearm. Again I do not think that that reasoning can affect the appraisal of the suspicion.
Mr Kalali points out that the absence of an automatic gun at Richmond heightens the suspicion that it was at Modbury North. While that argument is initially attractive, I am not sure that the finding of one automatic gun at one premises might not have led the police to think that there might be another or others at the second premises.
While the comparison of facts in two cases is a limited utility, the rejection by Johnston J of the adequacy of the suspicion in Ercegovic v Higgins is significant. Allied to that is the legislature’s evident intention to tighten up the test for suspicions attaching to premises. The legislature was fully aware of the consequences of the amendment. What the police were prevented from doing in respect of a vehicle, they might now be prevented from doing in respect of premises. The legislature knew that.
There is a countervailing view about the comparison of the facts of the two cases. Johnston J regarded as material the fact that the defendant appeared to be making a daily, commuting type journey to and from work in the Riverland when he was spoken to by police. He might thus be thought less likely to have the gun in his car and more likely to have it in his house. Johnston J thought that there might have been more reason to suspect the gun was in the car if the police had reason to think he was, at the time of being spoken to, in the process of moving his belongings from Adelaide to the Riverland.[4] Taking that observation into account it might be that there is not a close analogy between the facts of that case and this. Police were proposing to search both of the accused premises in the present case. Surely he would store such a gun at one or other of those premises. Further, it seems unreasonable, if strictly logical, to suggest that if the police had good reason to believe that a person was storing a firearm at one of two premises, they could not search either premises if they could not entertain a stronger suspicion about one.
[4] See pp 196-197.

Nevertheless the powers of search are carefully circumscribed. Doyle CJ speaking on behalf of the Court of Criminal Appeal, approved what had been said on this topic by Franki J in Crowley v Murphy (1981) 52 FLR 123 at 129. His Honour said in Question of Law Reserved (No 1 of 1998 at (1998) 70 SASR 296:
I agree that the statutory powers of search and procedure are to be construed narrowly, because they involve an intrusion upon common law right that are regarded as basic or fundamental individual rights. To be more specific, they are to be construed as not authorising an interference with those rights beyond what is stated expressly, or beyond what follows by necessarily implication.
More recently the Court of Criminal Appeal has underlined the strictness of the search powers contained in the Controlled Substances Act.[5]
[5] See R v Nguyen [2003] SASCFC 91, 117 SASR 432.
I find that on the information available to the police they did not have reasonable grounds to suspect that the automatic firearm was in either the Richmond or the Modbury North premises. Accordingly the beginning of the search at the house at Modbury North pursuant to s 32(3) of the Firearms Act was unlawful.
Two further questions need to be answered:
Did the unlawfulness of the initial search which led to the discovery of the rocket taint the legality of the subsequent search conducted pursuant to the General Search Warrant. The subject items were found only after the police decided to conduct a wider search using that warrant?
Notwithstanding the unlawfulness of the initial search, and in the event that the unlawfulness tainted the General Search Warrant search, should the evidence of the discovery of the subject items be admitted in the exercise of the discretion?
I think the first question should be answered in the affirmative. The rocket was only located in the purported exercise of the s 32 search power which I have found was not justified.
That leaves the question of whether the location of the subject items should be admitted into evidence despite the unlawfulness of the original search. That question is answered by weighing up the various considerations for and against the exercise of discretion. Before turning to those considerations I refer to some further agreed facts which bear on the exercise of the discretion.
It is agreed that the three subject items were present in the accused’s house, and able to be seen by police who conducted a police audit of the accused’s firearms on 30 September 2011, some 11 months before the present search. Both imitation revolvers the subject of counts 1 to 4 were in the house. One was displayed on the wall as shown in one of the photographs in this hearing, and the other was in a display cabinet. The rocket launcher, the subject of count 5, was on display in a display cabinet.
I must say it is not clear why possession of those items was not investigated during that audit but I suppose the point to be understood for the purposes of the exercise of the present discretion is that the items had been in the accused’s possession and on display at the time of an earlier police audit. He had not hidden them and he had not acquired them after the audit. The other point made in relation to these items is that none is capable of being discharged. The revolvers are imitations and I am told that the rocket launcher is inoperative after it has discharged its rocket.
These facts are included in the reasons why the discretion should not be exercised to admit the evidence. The items located are all inoperative. They have been on display for some time. They are among registered, properly stored armaments for whose possession the accused is licensed. He is a collector of such items. The offending is at the lower end of seriousness. The public interest compromised by the exclusion of the evidence is less that it would be for more serious offending. The public interest in people’s privacy being protected from unlawful searches is an important factor.
Mr Abbott drew attention to the remarks of Higgins J in R v Applebee (1995) 79 A Crim R 554:
There is a public interest in the due and proper execution of warrants. There is a strong public interest in protecting citizens, even those under reasonable suspicion of having committed criminal offences, from unauthorised intrusions. Further, the offence charged in this case, though serious, is not such as to excite public outrage if the prosecution is unable to proceed for lack of lawfully obtained evidence.
In the joint judgment of Stephen and Aickin JJ in Bunning v Cross (1977-8) 141 CLR 54 at 78-80 their Honours indicated matters which would impact on the discretion to admit or not admit illegally obtained evidence. Factors militating against the admission of such material include a deliberate disregard by the police of well known procedures. In other words, a deliberate cutting of corners in the face of a citizen’s civil rights. In this case the lower level of seriousness of the offending would militate against the admission of the material. There is a more recent discussion of the public policy discretion in R v Lobban (2000) 77 SASR 24 at [27]-[42].
I turn to considerations in favour of admitting the evidence. While the offending can be seen as at the lower end of seriousness, all unlicensed possession of a firearm is a serious matter. The purpose of the Firearms Act is to closely regulate the possession of firearms, whether operative or not, so as to reduce the incidence of crime. There was no evidence to suggest that the police officers concerned were routinely flouting their powers of search. There was no evidence of a practice by the police which should be discouraged by the exclusion of this evidence. I do not accept that the police could, by further enquiry, have found out that, for example, a semi-automatic weapon could be fired in such a way to sound as if it was fully automatic. That is the suggested reason behind a mistaken report involving the accused. In the light of the decision in Ercegovic v Higgins I have concluded that the grounds for suspecting that the automatic firearm was actually in the accused’s house were not based on sufficiently reasonable grounds, but the police were acting on information which it would have been derelict for them to ignore.
In the circumstances I think the balance of the considerations results in the discretion being exercised to admit the evidence notwithstanding the illegality. Accordingly I admit the evidence of the location of the three items the subject of the charges.