R v Daka - [2019] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAKA
[2019] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
3 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
This is an appeal against conviction on one count of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the CSA).
South Australia police executed a general search warrant to search a property at Mawson Lakes, as part of “Operation Deluge” (a coordinated police operation for simultaneous raids of up to 59 premises across Australia). A very large quantity of cannabis was seized inside, in addition to related items. The appellant and two co-accused were subsequently convicted of trafficking in a large commercial quantity of a controlled drug following a trial by jury.
The appellant advances the following two grounds of appeal:
1. The learned trial Judge erred in dismissing the application to exclude the evidence of the police search; and
2. The learned trial Judge failed to adequately direct the jury as to the elements of the offence of Trafficking in a Large Commercial Quantity of a Controlled Drug.
Held, per Parker J (Kourakis CJ and Stanley JJ agreeing), dismissing the appeal:
1. In the absence of a barrier to his entry, the police officer did not trespass on the property by walking up the path to the front door of the house and knocking. His rights were no less than those of a member of the general public. The fact that he executed a general search warrant after entry on to the land and when he entertained a reasonable suspicion does not negate the lawfulness of his entry (at [70]-[77]).
2. The present case is distinguishable from R v Rockford on two grounds. First, there was no hindrance to the police approaching the front door. Secondly, the police did not commence to search until after they clearly had reasonable grounds to suspect the commission of an offence (at [78]).
3. The two references made by the trial Judge to possession did not lead to a risk of the jury impermissibly reasoning to guilt on the basis of possession (at [88]-[90]).
4. Even if the trial Judge’s references to possession caused some confusion in the minds of the jury, this would have been favourable to the appellant (at [91]).
Controlled Substances Act 1984 (SA) ss 4, 32, 52; Criminal Law Consolidation Act 1935 (SA); Summary Offences Act 1953 (SA) s 67, referred to.
Halliday v Nevill (1984) 155 CLR 1, applied.
R v Rockford (2015) 122 SASR 391, distinguished.
R v Daka [2018] SADC 110; Coco v The Queen (1994) 179 CLR 427; Police v Dafov (2007) 102 SASR 1; Kuru v New South Wales (2008) 236 CLR 1; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Marafioti (2014) 118 SASR 511, considered.

R v DAKA
[2019] SASCFC 80
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Parker J.
STANLEY J: For the reasons given by Parker J I would dismiss the appeal.
PARKER J: This is an appeal against conviction on one count of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the CSA). For the reasons that follow I would dismiss the appeal.
Grounds of appeal
The appellant appeals on the following grounds:
1The learned trial Judge erred in dismissing the application to exclude the evidence of the police search;
2The learned trial Judge failed to adequately direct the jury as to the elements of the offence of Trafficking in a Large Commercial Quantity of a Controlled Drug; and
3The learned trial Judge erred in not directing the jury as to how to use defence evidence in circumstances where it was not challenged by the prosecutor during cross-examination.
The appellant abandoned a fourth ground of appeal. The respondent conceded that grounds 1 and 2 were arguable and on that basis a judge granted permission to appeal. However, the Judge refused permission on the third ground and the appellant did not renew his application before the Full Court. Thus, it is only necessary to consider grounds 1 and 2.
Background
The appellant, David Daka, his brother Artur Daka and Diane Kazani, the wife or partner of Artur Daka, were each charged with trafficking in a large commercial quantity of a controlled drug following a search by police of a property at Mawson Lakes where they each resided. Artur Daka was also charged with certain firearms offences. While Artur Daka and Diane Kazani appealed against their convictions, they discontinued their appeals.
At the time of the police search on 14 October 2014 the residents at the house comprised Artur Daka and Diane Kazani, David Daka and his wife, Lucjana Daka, and Aldo Tusha. There were also three children and a newborn baby present in the house. The property was rented by Artur Daka and Diane Kazani, while David and Lucjana Daka contributed towards expenses.
Operation Deluge
The search of the Mawson Lakes property occurred in the final stages of a police operation entitled Operation Deluge. Operation Deluge involved South Australia Police and several interstate agencies. The operation had commenced in February 2014 and was targeted at a syndicate allegedly engaged in trafficking very large commercial quantities of cannabis in South Australia and interstate. Alfred Kola and 17 of his associates had been identified as apparent participants in a criminal organisation within the meaning of the Criminal Law Consolidation Act 1935 (SA).
Police raids were to commence at about 7:00 am (Adelaide time) on 14 October 2014 at premises in South Australia, Western Australia, New South Wales, Queensland and the Northern Territory. As far as possible, the raids were to be simultaneous. Up to 59 premises were to be searched. The aim was to arrest and identify targets and search premises of interest for controlled drugs, cash, assets and other evidence associated with the trafficking of controlled drugs. At a later point the South Australia police would seek to extradite four targets from Western Australia and another from the Northern Territory.
Police conducted a briefing session for command members and team leaders on the afternoon of 13 October 2014, being the day prior to the search of the Mawson Lakes house. Roles and duties were described. All team members were to be covertly deployed. Team leaders were not to act without prior approval from the Deluge command and team members were not to act without instruction from their team leader.
Field intelligence officers and analysts had prepared packages with respect to nominated target persons and premises. Each package contained intelligence gathered during the planning phase and set out details of the suspicions held by police about offences committed against the CSA. This information was directed to those police officers who may decide to use a general search warrant.
Detective Sergeant Santucci, the leader of the police team that attended at the Mawson Lakes property, was provided with an intelligence package at the briefing on 13 October 2014. That package provided some details of intercepted telephone contact between Artur Daka, David Daka and Alfred Kola. After receiving the intelligence package, Detective Sergeant Santucci briefed his team.
The briefing package stated that intelligence and information gained from surveillance and telephone intercepts had revealed that Alfred Kola and others were involved in cultivating cannabis for sale and also acting as a broker for persons who cultivate cannabis. Telephone intercepts suggested that seven named persons, including Alfred Kola, were engaged in trafficking commercial quantities of cannabis. Between March 2014 and October 2014 police had intercepted several consignments of cannabis, comprising in excess of 150 lb, being trafficked to Western Australia and the Northern Territory by Alfred Kola and another man.
The police briefing material also included specific information about the occupants of the Mawson Lakes address. The briefing alleged that Artur Daka is a close associate of Alfred Kola. Both David Daka and Artur Daka had regular face‑to‑face meetings with Alfred Kola. It was also noted that Artur Daka and Diane Kazani had previously been reported by police in 2012 for possession of prescribed equipment, i.e. items commonly used for the production of cannabis.
An Albanian interpreter assisted police by identifying those intercepted telephone calls that may be of interest. The police arranged for those conversations between Alfred Kola and David and Artur Daka that appeared to be of interest to be translated from the Albanian language. However, that did not provide any information of particular relevance. The police focus seems to have been on the fact of contact rather the content of the conversations.
Detective Sergeant Santucci and his team arrived at the Mawson Lakes address at about 7:00 am on 14 October 2014. Santucci knocked on the front door. He has stated that upon the door being opened he immediately noticed an overwhelming smell of cannabis. On that basis he stated that he formed the view that there were offences being committed inside the premises. He therefore executed his general search warrant to conduct a search of the premises.
The police search
The plan of the premises and also an aerial photograph were tendered at the trial. A view also took place. The property has two entrances that face two different streets. The front door is about three to four metres from the front entrance gate. The rear entry opens into bedroom 4. The door of bedroom 4 is about 20 metres from the front door of the property. The garage is at the rear of the premises. A doorway from the garage opens into a hallway which leads to bedroom 4.
When police entered the premises Artur Daka and Diane Kazani appeared from bedroom 1. Children had also been asleep in this room. David Daka appeared from bedroom 2, which was also apparently occupied by his wife Lucjana Daka. Bedroom 2 also housed a cot occupied by a baby. Aldo Tusha appeared from bedroom 3. The police moved the occupants into the living area of the house.
Police opened the unlocked door to bedroom 4, which was located at the rear of the premises. A burning candle was situated at the entry to the room. White plastic sheeting was spread across the floor and taped to the walls. The same material had been tacked to the windows. The floor of bedroom 4 was almost completely covered in female flowering cannabis head. A fan located on a chair was operating. A green garbage bag containing stripped cannabis pieces was also located inside bedroom 4.
Gym equipment was placed in front of the second door to bedroom 4, i.e. the door that forms the rear entrance to the property. The air conditioning vents had been removed from the ceiling and were located on top of the gym equipment. A piece of black ducting and a power cord emerged from the space created by the removal of the air conditioning vents. Although the police did not enter the roof space, they considered that the ducting and the power cord were consistent with the presence of an inline fan. Two mugs and a glass were also seized from bedroom 4 for the purposes of analysis.
The police located a garbage bag in the garage that contained stripped cannabis stalk and leaf material and also three San Pellegrino water bottles, a pair of black disposable gloves and a sock. Also located by the police in the garage was a head stripper, two vacuum sealers and a cardboard box which contained four lampshades and three 600 watt globes. A pair of Nike sandshoes were located on the garage floor towards the rear door. The shoes appeared to be heavily soiled with cannabis residue. Two rolls of plastic for use with a heat vacuum sealer were also located in the garage. Vacuum seal bags were found inside the laundry.
Expert evidence relating to cannabis
A police officer gave expert evidence concerning production and trading in cannabis. He stated that the highest concentration of tetrahydrocannabinol (THC) is contained within the flowering head of the female plant. It is that part of the plant that is sold. Cannabis is sold in varying quantities. Larger quantities tend to be packaged in either large plastic resealable bags or vacuum sealed cyrovac bags. The value of one pound of cannabis in October 2014 was between $2,000 and $3,000.
The expert witness stated that once a cannabis plant reaches full maturity it is deconstructed by pulling off the branches and removing the female flowering heads. This work is performed using scissors or a bud stripper. After the cannabis is harvested, the bud is wet and sticky. It is not ready for sale at that point as it is preferred that the material is dried. The methods of drying cannabis include the use of a fan. The expert also stated that cannabis has an extremely strong smell. The smell is particularly evident once a plant is mature and is flowering.
The expert witness also stated that items associated with the commercial cultivation and harvesting of cannabis, as compared to personal use, included the use of bud strippers and a greater amount of lighting, pots and transformers.
The expert also stated that syndicates trading in cannabis may use different premises for cultivation, harvesting, drying and packaging. The production of cannabis is regarded as a lucrative business. Thus, there would be an expectation that the participants would receive payment for their work given the risk involved.
Forensic evidence
A forensic scientist gave evidence that the cannabis was wet at the time of seizure. When dried, cannabis quite commonly loses about 75% of its weight due to water loss. When first examined on 21 October 2014, the total weight of the seized cannabis material was 27.97 kg. When the material was re‑weighed on 29 December 2014, its total weight had reduced to 5.84 kg.
The forensic scientist also gave evidence concerning analysis of the pair of Nike sandshoes. She stated that debris had been collected from the tread of the sandshoes and also from the inner soles and the inner ankle. Cannabis plant material and part of cannabis flowers was identified as being present in both samples.
A different forensic scientist gave evidence concerning DNA testing. She stated that Artur Daka and Diane Kazani were the contributors to DNA taken from the inner ankle and sole of the right shoe found in the garage. Aldo Tusha was excluded as a DNA contributor in relation to the shoe. Diane Kazani and Artur Daka were also recorded as contributors to the San Pellegrino water bottle 1A. Once again, Aldo Tusha was excluded as a contributor. David Daka was the only contributor to San Pellegrino bottle 1B. Artur Daka was a contributor to bottle 1C and Aldo Tusha was excluded. David Daka was a contributor to the inner surface of one of the black disposable gloves. Aldo Tusha was not a contributor. David Daka was a contributor to the inner surface of the other black disposable glove. Again, Aldo Tusha was not a contributor.
It was an agreed fact that Aldo Tusha had arrived in Australia on 31 May 2014. He held a working holiday visa which permitted him to remain in Australia for 12 months only. Aldo Tusha was charged on 14 October 2014 with trafficking in a large quantity of a controlled drug. Aldo Tusha’s visa expired on 31 May 2015. On 26 June 2015, the charge against Aldo Tusha was discontinued and he was deported from Australia the following day.
Defence evidence
The appellant’s case at trial was that he did not know about the presence of the cannabis in bedroom 4.
The appellant called his wife, Lucjana Daka, to give evidence. They had one son at the time of the search. She and her husband and son lived at the Mawson Lakes property with Artur Daka and his wife Diane Kazani and their three daughters.
Lucjana Daka stated that Aldo Tusha had moved into the house in August 2014. He was her distant cousin, whom she had met for the first time in August 2014. It had been intended that he would stay a couple of weeks. Aldo Tusha occupied bedroom 4. She stated that she assumed that he had his own bed in bedroom 4 but she had never seen it. Aldo Tusha possessed the only key to bedroom 4.
Mrs Daka stated that her husband was a painter and worked with his brother, Artur Daka. They would go to work each day and leave through the garage door. They also entered through that door when they returned home. Her husband used black rubber gloves when he was painting with oil paint. The gloves found by the police in the garage were exactly like the gloves used by her husband in his work.
Mrs Daka also gave evidence about the water bottles. She had seen her husband and his brother, and also Diane Kazani, use these bottles but had not seen Aldo Tusha do so. The bottles were kept in refrigerators in the garage and kitchen.
Mrs Daka also stated that the vacuum sealer machines and the vacuum seal bags located in the laundry were used to vacuum seal food that was bought in bulk. They would use the vacuum sealing machine perhaps every month or so.
Mrs Daka stated that on 13 October 2014 (i.e. the day prior to the police raid) her husband and his brother had returned from work at the usual time of about 3:00 pm or 4:00 pm. The van had been used again that day by Aldo Tusha. She had not seen Mr Tusha bring anything into his bedroom on the afternoon of 13 October 2014 and nor had she seen him move any of his belongings into the van. When she went to bed at about 8:00 to 8:30 pm, Aldo Tusha was not in the house. Although she had fed her infant son during the night, she had not gone out of the bedroom and had not heard any activity. She had answered the door when the police arrived on 14 October 2014. However, she did not notice the smell of cannabis in the house.
The ruling on the voir dire
Prior to commencement of the trial the three defendants, including the present appellant, sought a ruling that the evidence obtained as a result of the police search was to be excluded. Two grounds were advanced. First, there was no reasonable basis upon which the police could have formed a suspicion that enlivened their power to search the premises. Secondly, the search was unlawful and the evidence should be excluded in the exercise of the Court’s discretion. The Judge published detailed reasons for the dismissal of the application.[1]
[1] R v Daka [2018] SADC 110.
The appellant and the other two accused complained that the Operation Deluge briefing must be understood as a command to team leaders to search nominated premises. The result being that the holder of a general search warrant would not exercise the discretion required for the purposes of s 67 of the Summary Offences Act 1953 (SA). Thus, there would be no basis for the holder of a general search warrant to have reasonable cause to suspect that an offence had been committed or was about to be committed or that there was anything that may afford evidence as to the commission of an offence at the premises. The briefing was to be understood as a mandatory direction that left no room for the formation of a view and the exercise of a discretion.

The defendants also argued that there was no evidence that Detective Sergeant Santucci, as the holder of a general search warrant, had formed an independent view. Thus, there was no basis for him to have formed a reasonable suspicion for the purposes of s 67(4) of the Summary Offences Act.
Detective Brevet Sergeant Glasson gave evidence on the voir dire about the briefing on 13 October 2014. He stated that while there was a discussion about the telephone intercepts, nothing specific was said in relation to Artur and David Daka. Brevet Sergeant Glasson did not have any specific discussion with Sergeant Santucci that day. The briefing packages were handed to each team leader who was required to read the package, do their own due diligence, conduct their own background checks and determine whether there was sufficient information for the holder of a general search warrant to form a view that he or she had reasonable cause to suspect for the purposes of s 67 of the Summary Offences Act.
Brevet Sergeant Glasson said that team leaders were well aware that they needed to have sufficient facts to provide a reasonable cause to suspect before they could use a general search warrant. As he was dealing with experienced senior police officers, it was not necessary to write down the requirements of s 67 every time that consideration was given to the use of a general search warrant. The intelligence information was provided and it was up to the individual officers whether they used their general search warrant or not.
The Judge noted that the cross-examining counsel appeared incredulous at the information given by Brevet Sergeant Glasson. His Honour indicated that he did not share that incredulity. His Honour did not think that senior police officers should expect anything but that other senior police officers understood the limits of their own authority. His Honour noted that each of the holders of a general search warrant had to make their own decision as a completely independent exercise of their discretion. The team leaders were given time to form their own views. Some of the team leaders had sought additional information from Brevet Sergeant Glasson and his group. His Honour accepted the whole of the evidence given by Brevet Sergeant Glasson as reliable and credible.
Detective Sergeant Santucci also gave evidence on the voir dire. Based on the information provided in the briefing package, and from discussions he had had with officers of the Drug and Organised Crime Task Force at the meeting, he understood that Alfred Kola had been in direct personal contact with David Daka and Artur Daka. It was suspected that they both had connections with Kola in relation to the trafficking of large commercial quantities of cannabis.
Detective Sergeant Santucci said that after receiving the briefing package and other information he returned to Port Adelaide and briefed his team. While he did not take notes of that briefing, the Judge found all of the evidence of Detective Sergeant Santucci to be truthful, reliable and accurate.
Detective Sergeant Santucci said that he went to the front door of the Mawson Lakes premises through an open front gate. There was no impediment to reaching the front door. There was no signage at the premises forbidding entry. After he knocked on the door, the door was opened. As soon as the front door opened he noted an overwhelming pungent odour of cannabis. Upon smelling the cannabis, Detective Sergeant Santucci formed the view that potentially there were offences being committed in relation to cannabis inside the premises. He then executed his general search warrant.
Detective Sergeant Santucci also stated that at the time he arrived at the premises he had made the decision to execute his general search warrant because he was satisfied, from the whole of the information that he possessed, that he had reasonable cause to suspect that an offence had been committed or was about to be committed or that there were things that may afford evidence as to the commission of an offence in the premises. His suspicion had been formed as a result of the information that he had received at the briefing session on 13 October 2014. That information included the contents of the briefing session and the entirety of the information provided to him at that time. Once he had received all of the information, he formed his own conclusion. That information included that Alfred Kola was allegedly trafficking in cannabis and that an operation was being conducted in relation to him. During the intelligence gathering phase of the operation, David and Artur Daka had been identified as having been in telephone and personal contact with Kola. He also noted that Artur Daka had been found guilty of being in possession of prescribed equipment for the cultivation of cannabis. He was also aware that the operation was concerned with trafficking in cannabis and that arrests had already been made. The combination of all these matters led him to form a suspicion for the purposes of s 67 of the Summary Offences Act. Detective Sergeant Santucci said that his suspicion had probably turned more to belief that offences were being committed when the door was opened and he smelled the odour of cannabis coming from inside the house. It was only at that point that he executed his general search warrant.
Detective Sergeant Santucci said that he had not been able to find a copy of the standard police form (PD271) upon which he had recorded information relating to the search. His usual practice was to prepare such a document after a search. His evidence that he had submitted the original PD271 was not challenged in cross-examination.
The Judge concluded that the information known to Detective Sergeant Santucci could reasonably ground the required suspicion, even though the facts were insufficient to provide reasonable grounds for a belief. His Honour reached that conclusion based on information provided at the briefing. The Judge also did not accept that the orders received by Detective Sergeant Santucci operated in a mandatory sense so as to remove his discretion. He formed an independent view under s 67 of the Summary Offences Act, being well aware of his obligations and of the need for him to independently form a view about whether there was a reasonable cause to suspect. He was satisfied by all of the information received at the briefing. While it was advisable and good practice to keep notes, provided that there was sufficient factual information to form a reasonable cause to suspect, a general search warrant could be exercised without specifically identifying and amplifying in some written form the exact process of reasoning followed by the holder of the warrant. The Judge also accepted that Detective Sergeant Santucci had completed the PD271.
The Judge also held that if he was wrong about any aspect of the formation by Detective Sergeant Santucci of a reasonable cause to suspect, he was satisfied that, upon the front door of the house being opened, the overwhelming smell of cannabis provided a reasonable cause to suspect for the purposes of s 67. That did not involve a retrospective justification for the search. The police had an implied licence to approach the front door where the detection of a very strong smell of cannabis did not involve any retrospective justification. His Honour distinguished the facts in R v Rockford.[2] His Honour also had regard to the decision in the High Court in Halliday v Nevill.[3]
The appellant’s submissions
[2] (2015) 122 SASR 391.
[3] (1984) 155 CLR 1.
Ground 1 – Failure to exclude evidence obtained by the police search
The appellant submits that the information provided to Detective Sergeant Santucci at the Operation Deluge briefing did not include any evidence of overt drug activity on his part. The intercepted telephone calls between the appellant and his brother and Alfred Kola had not provided any information of particular relevance. The calls merely showed that they had been in contact. Detective Sergeant Santucci had admitted that he did not have any specific information about the contents of the meetings and conversations that linked Alfred Kola to the Daka brothers. Based on this evidence, Detective Sergeant Santucci could not have formed a reasonable suspicion prior to arriving at the Mawson Lakes property. Thus, he trespassed on the property.
The evidence revealed a decision at senior police level to conduct raids and make arrests. Officers were directed to search premises of interest for drug related material. Thus, the entry onto the Mawson Lakes property was for a prescribed and directed purpose, i.e. to search for drugs and drug related items. The officers conducting the search were not permitted to divert from the directions given to them by the police command. The overwhelming inference is that the directive given by senior police to search was mandatory and no discretion was permitted.
The appellant submits that the facts in the present case are on all fours with those in Rockford, as Detective Sergeant Santucci had trespassed on private property before he had formed an independent reasonable suspicion that was sufficient to permit entry onto the property.[4]
[4] (2015) 122 SASR 391.
The appellant acknowledges that there is a question as to whether Detective Sergeant Santucci had an implied licence to enter the Mawson Lakes property so as to approach the front door. The appellant submits that it is clear that in the absence of express or implied consent by the owner or the person in charge of a property, police entering or remaining on property will be trespassing unless their presence is authorised by the common law or by statute.[5] An occupier of suburban premises impliedly authorises a passer‑by to enter “for a legitimate purpose that in itself involves no interference with the occupier’s possession nor injury to the occupier, his or her guests or his, her or their property.” However, in the present case the sole purpose of Detective Sergeant Santucci and his team being at the appellant’s property was for the prescribed and directed purpose of searching for drugs and drug related items. Thus, the reasoning of the High Court in Halliday v Nevill is not applicable.[6] The appellant also refers to the decision of the High Court in Kuru v New South Wales, where Gleeson CJ, Gummow, Kirby and Hayne JJ observed that a person who enters the land of another must justify that entry by showing either that it occurred with the consent of the occupier or that they had lawful authority to enter. Except where authorised by the common law or by statute, police have no special right to enter land.[7]
[5] Coco v The Queen (1994) 179 CLR 427; Police v Dafov (2007) 102 SASR 1 at 3 [9] (David J).
[6] (1994) 155 CLR 1.
[7] (2008) 236 CLR 1.
The appellant submits that prior to Detective Sergeant Santucci entering the Mawson Lakes property, he had not identified any suspicious circumstance beyond what had been provided to him at the police briefing that might enliven the powers under his general search warrant. In that light, the appellant submits that the use of a general search warrant was entirely inappropriate. The attempt to retrospectively justify use of the general search warrant must be seen in light of the directive given by senior police to conduct a search. A reasonable suspicion must be formed prior to the act of stepping onto the property to execute the search ordered by senior police. The formation of a reasonable suspicion cannot be a cumulative and ad hoc process. The appellant submits that the proper course for the police to follow was to obtain a warrant under s 52 of the CSA.
The appellant submits that as the search was not authorised under Detective Sergeant Santucci’s general search warrant, the evidence obtained as a result of the search should have been excluded by the Judge.
Ground 2 – Failure to correctly direct concerning trafficking
The appellant notes that the prosecution case proceeded on the basis of “taking a step” in the process of trafficking by permitting premises to be used to process cannabis. However, this approach was compromised because the prosecutor continually introduced the concept of possession throughout the evidence and in her closing address.
The appellant further submits that the difficulties created by the approach of the prosecutor were compounded by the directions given by the Judge where his Honour sought to explain the concept of possession.
The appellant also complains that the redirection given by the Judge, after defence counsel had expressed concern about his Honour’s references to possession, added to the confusion.
In this case there were not two alternative pathways to guilt. The prosecution case was advanced solely on the basis that the appellant had taken part in the process of the sale of the cannabis. The introduction of the concept of possession in relation to the “taking part in the process of sale” confused the issue of knowledge of the cannabis. In particular, the appellant submits that the Judge’s direction “[a]nd possession does not require full knowledge of the nature of the drug in question” may have led the jury to impermissibly reason that they could convict without the prosecution having proved actual knowledge of the cannabis.
The appellant further submits that given the alleged confusion over the concept of possession, the jury may have impermissibly reasoned that because the persons charged were the occupants of the property, they must have been in possession of the cannabis and therefore guilty of “taking part in the process of the sale of the cannabis”. This line of reasoning would reduce the burden upon the prosecution of proving that the appellant had actual knowledge of the cannabis located in bedroom 4.
The respondent’s submissions
Ground 1 – Failure to exclude evidence
The respondent notes that in R v Willingham (No 2), this Court held in relation to the exercise of powers under a general search warrant that the issues are first, whether the officer held a genuine suspicion and secondly, based on the matters known to the officer, was that suspicion reasonable.[8] The respondent also noted the observations made by this Court in R v Nguyen concerning the concept of a “reasonable suspicion”.[9] An objective test is to be applied in determining whether a suspicion is reasonable. The respondent also referred to the observation made by Kourakis CJ in R v Marafioti with Vanstone and Stanley JJ agreeing that “a suspicion is still a reasonable one even if there remains a possibility, or even a probability, that the thing suspected will not be discovered.”[10]
[8] [2012] SASCFC 104 at [10] (Gray, Sulan and Stanley JJ).
[9] (2013) 117 SASR 432 at 437 [20]-[22] (Kourakis CJ, Blue and Stanley JJ).
[10] (2014) 118 SASR 511 at 513 [9] (Kourakis CJ).
In light of those authorities, the respondent submits that the Judge properly found that based upon all the information before him, Detective Sergeant Santucci had a sufficient basis to have a reasonable cause to suspect for the purposes of s 67 of the Summary Offences Act. Even if that were not the case, once the door was opened and police were met by an overwhelming smell of cannabis, there was clearly a reasonable basis to suspect that an offence was occuring. As Detective Sergeant Santucci said in his evidence, he initially held a suspicion but this turned to a belief once he smelt the cannabis.
The respondent submits that Detective Sergeant Santucci had an implied licence to enter the premises and knock on the front door in the absence of that licence being clearly revoked by the householder. The circumstances can readily be distinguished from those in R v Rockford.[11]
[11] (2015) 122 SASR 391 at 395 [15]-[17] (Stanley J).
The respondent also submits that insofar as the exercise of the discretion might arise if the police conduct is regarded as unlawful, there was no deliberate, wilful or malicious action by the police. Any unlawfulness did not affect the cogency of the evidence, which was of considerable probative value in relation to various serious drug charges involving over 100 times the trafficable quantity of cannabis.[12]
[12] The traffickable quantity is 250 g.
Ground 2 - Failure to correctly direct concerning trafficking
The prosecution alleged that the appellant and the other two defendants were taking a step in the process of a sale of a drug. In the case of the appellant, that step was the harvesting and drying of the cannabis in bedroom 4. Thus, a central issue in the prosecution case was whether the appellant knew about and/or was involved in the harvesting and drying of the cannabis. The prosecution did not rely on the presumption in s 32(5) of the CSA which is premised on the defendant being in possession. The aide memoire provided by the Judge to the jury correctly stated the law. The Judge also correctly directed the jury concerning the steps necessary to constitute the elements of taking part in the process of sale of a drug.
The Judge first referred to the concept of possession in the context of explaining to the jury that the defendants need only know that the substance is a drug and they need not know which drug it is. The second reference by the Judge to possession effectively invited the jury to consider whether the defendants were in possession of the drug in addition to the requirement that they be taking part in the process of sale. That direction was favourable to the defendants, including the present appellant.
Counsel for the appellant requested the Judge to redirect the jury consistently with the prosecution case that he had participated with the other two defendants in harvesting and drying cannabis in bedroom 4. The Judge did not refer to possession in the redirection. His Honour reminded the jury of the four elements of the offence set out in the aide memoire and also reminded them of the requirement that they be satisfied that the defendants knew that the material was an illicit substance.
The respondent submits that this latter direction could only have reinforced the earlier directions referring to the requirements of knowledge and the elements of the offence of taking part in the process of sale.
The respondent also submits that the directions given by the Judge must be considered in the context of the entire summing up relating to the elements of the offence and in light of the aide memoire. By specifically removing paragraphs (a) and (b) from the definition of “traffic” the aide memoire emphasised taking part in the process of sale. Accordingly, the respondent submits that there was no risk that the jury would have reasoned to guilt on the basis of possession. Even if there were such a risk, it could only have been that possession were added to the elements required to prove taking part in sale. Moreover, if the jury were satisfied that each appellant was in possession for the purposes of sale, that would be sufficient to satisfy the elements of taking part.
Consideration
Ground 1 – Failure to exclude evidence
Section 67(4) of the Summary Offences Act provides as follows:
(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 effect of the evidence of Detective Sergeant Santucci was that, based upon the information provided at the Operation Deluge briefing and his discussions with other officers, when he travelled to the Mawson Lakes address he suspected that an offence was being committed and/or entry to the premises may provide evidence as to the commission of an offence. The Judge found that his evidence on this question was reliable and credible. His Honour also accepted as reliable and credible the whole of the evidence given by Detective Brevet Sergeant Glasson in relation to the information provided at the briefing.
While the evidence of Detective Sergeant Santucci was that when he went to the Mawson Lakes premises he suspected that they were being used for the trafficking of cannabis, upon the front door being opened he became certain that offences were being committed because of the overwhelming odour of cannabis. At this point the requirements of s 67(4)(a) were clearly satisfied. It is therefore unnecessary to consider whether or not the Judge erred in finding that Detective Sergeant Santucci had grounds to hold a reasonable suspicion prior to the door being opened.
The appellant has contended that police were not entitled to enter onto the land surrounding the Mawson Lakes premises and to knock on the front door. I reject that contention. It is clearly contrary to the authorities to which I now turn.
The facts in Halliday v Nevill were that police were on patrol in a suburban street when they saw the appellant, who was known to them as a disqualified driver, reverse a car out of a driveway.[13] When the appellant saw the police, he drove back into the driveway. The officers walked down the driveway and arrested the appellant. While the police were escorting the appellant back to their patrol car he broke free and entered his own house a few doors away. The police pursued him and he was arrested after a scuffle. The appellant was charged with escaping from legal custody, resisting police in the execution of their duty and assault. The Magistrate dismissed those charges on the basis that the police were trespassers and the arrest was unlawful.
[13] (1984) 155 CLR 1.
The High Court held that the police had not trespassed and the arrest was lawful. Gibbs CJ, Mason, Wilson and Deane JJ held:[14]
While the question whether an occupier of land has granted the licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or revoked. The most common instance of such an implied licence relates to the means of access, where the path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors by generally or particularly designated visitors is forbidden or unauthorised, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it.
(Citations omitted)
[14] Ibid at 6-7 (Gibbs CJ, Mason, Wilson and Deane JJ).
The evidence of Detective Sergeant Santucci was that he simply walked up the path to the front door of the house and then knocked. There was no barrier to his entry. In that respect, the circumstances are indistinguishable from those considered by the High Court in Halliday v Nevill. Detective Sergeant Santucci entered the front yard for the lawful purpose of conducting police inquiries. His purpose in knocking on the door was to communicate with the occupant or occupants who answered the door.
Detective Sergeant Santucci did not trespass on the property and it was not necessary for him to rely upon the powers conferred under a general search warrant before he could approach the front door. As with the Victoria police officers in Halliday v Nevill, his rights were no less than those of a member of the general public. The fact that he executed a general search warrant after entry on to the land and when he entertained a reasonable suspicion does not negate the lawfulness of his entry. It is therefore of no relevance to speculate on whether or not Detective Sergeant Santucci would have searched the premises if he had not noticed a strong smell of cannabis, and whether, if he had done so, his suspicion was unreasonable.
The circumstances are very different to those in R v Rockford.[15] In that case police had climbed over a gate that was locked, or apparently locked, so as to enter a rural property. One of the officers knocked on the door of a house located on the property but received no response. The police evidence was that a general search warrant had been executed after entry when they observed a vehicle on the property that allegedly gave them proper cause to suspect that evidence of an offence may be located by the conduct of a search. The Court concluded that the evidence had been unlawfully obtained. The police had been conducting a search from the time they entered the property and had done so despite the presence of a locked, or apparently locked, gate. Because of the presence of the gate and the rural nature of the property, there was no implied right to enter for the purpose of approaching the front door. The present case is clearly distinguishable from Rockford on two grounds. First, there was no hindrance to the police approaching the front door. Secondly, the police did not commence to search until after they clearly had reasonable grounds to suspect the commission of an offence.
[15] (2015) 122 SASR 391.
I would dismiss ground 1.
Ground 2 - Failure to correctly direct concerning trafficking
The Judge correctly directed the jury that in order to convict the appellant of the offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the CSA, it was necessary for the jury to be satisfied beyond reasonable doubt of the following four elements of the offence:
(a)The substance that the appellant had or dealt with was a controlled drug;
(b)the appellant trafficked in the substance;
(c)the appellant took part in the process of sale of cannabis and did so knowing that it was cannabis or a controlled drug; and
(d)the quantity of the controlled drug being trafficked was a large commercial quantity. A large commercial quantity is 2 kg or more of cannabis.
The term “traffic” in a controlled drug is defined in s 4 of the CSA as follows:
traffic in a controlled drug means—
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug;
The meaning of the phrase “take part in the process of sale of the drug” is indicated by ss 4(4) and 4(5) of the CSA which provide as follows:
(4) For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5) For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)     storing the drug;
(b)     carrying, transporting, loading or unloading the drug;
(c)     packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)     guarding or concealing the drug;
(e)     providing or arranging finance (including finance for the acquisition of the drug);
(f)     providing or allowing the use of premises or jointly occupying premises.
The prosecution alleged that the appellant, and the other two defendants, were taking part in the process of sale of the drug. The appellant was alleged to be involved in the drying and processing of the cannabis in bedroom 4. Thus, he was alleged to have engaged in the activities referred to in paragraph (c) of s 4(5).
The defendants asserted that they knew nothing about the cannabis found in bedroom 4. They sought to place responsibility for its presence in the house upon Aldo Tusha. He had been deported from Australia long before the trial.
The appellant contends that the references by the Judge to possession in his summing up may have confused the jury. The references by the Judge to possession appear in the following passage:
Now in respect of each of the accused, on the question of trafficking, the prosecution must establish actually or by inference that the substance was a controlled drug. It does not need to prove, for example, that it was cannabis, but in this instance you may have no difficulty with that having regard to the evidence. In terms of the elements, in terms of your findings on the prosecution case, the prosecution must establish that an accused knew or was reckless with respect to the fact that the substance was a controlled substance. The prosecution are not required to establish knowledge or recklessness with respect to the precise identity of the controlled substance and, in this instance, recklessness would occur when an accused is aware of the possibility that the substance is a controlled drug but engages in conduct whilst not caring about that realisation. And possession does not require full knowledge of the nature of the drug in question, but requires proof of knowing possession of a prescribed drug. So it follows that the prosecution must prove beyond reasonable doubt an intent to commit the charged acts of trafficking and of knowledge of the nature of the drug.
Now this charge is based on taking part in the process of sale and so to determine liability would depend on you being satisfied of proof, beyond reasonable doubt, of an accused’s participation in and assent to the enterprise with the intention to sell the drugs. I’m going to come back to that aspect again in a few moments. So proof of possession demands proof of knowledge of physical custody or control coupled with the intent to possess knowledge of the contents. The remaining question then becomes whether you are satisfied, beyond reasonable doubt, that taking part in the process of the sale of the drug was done for the purpose of sale.
(Emphasis added)
The reference by the Judge to possession in the first of the underlined sentences occurred in the context of his Honour explaining to the jury that the prosecution needed only to prove that the defendants knew that the substance was a controlled drug and it was not necessary to prove that they knew which drug it was. The reference to possession was irrelevant to the question of whether the defendants knew that the substance was a controlled drug.
The second reference by the Judge to possession occurred in the context of his Honour explaining to the jury that they needed to be satisfied beyond reasonable doubt that the appellant was a participant in the process of sale. The concept of possession would only have been relevant if the prosecution had relied on paragraph (b) of the definition of “traffic” (i.e. have possession of the drug intending to sell it). It was not relevant to paragraph (c) of that definition (i.e. take part in the process of sale of the drug) upon which the prosecution relied.
While the appellant’s counsel sought a redirection by the Judge to clarify the references by the Judge to possession, his Honour dealt with the matter in his redirection without specifically referring to possession. Instead, his Honour enlarged upon his direction concerning participation in the process of sale.
While the introduction by the Judge of the concept of possession was not relevant to the prosecution case, I am not persuaded that either of the two references made by his Honour to possession may have led the jury to impermissibly reason that because the appellant was an occupant of the property, he must have been in possession of the cannabis and therefore guilty of taking part in the process of sale.
I take that view because, notwithstanding the superfluous references to possession, the clear focus of the relevant passages in the Judge’s directions was upon the need for the jury to be satisfied that the defendants knew that the substance was a controlled drug and also that they had participated in the process of sale. Nothing that his Honour said about possession tended to reduce the force of his direction about those two issues.
The redirection served to reinforce the earlier direction. The position was also correctly stated in the aide memoire. Importantly, the aide memoire reiterated the oral direction given by the Judge about the four elements of which the jury must be satisfied. There was no reference in that part of the oral direction or in the aide memoire to the concept of possession. In fact, as the respondent contends, by specifically removing paragraphs (a) and (b) from the definition of “traffic”, the aide memoire placed the emphasis upon taking part in the process of sale. For these reasons, I accept the correctness of the respondent’s submission that there was no risk that the jury would have reasoned to guilt on the basis of possession.
Even if the appellant was correct in his contention that the references to possession may have caused some confusion in the minds of the jury, any confusion about the elements of the offence that needed to be satisfied was favourable to the defendants, including the present appellant. That was because introduction of the concept of possession into the jury’s deliberations would have increased the burden placed on the prosecution.
I would dismiss ground 2.
Conclusion
I would dismiss the appeal on ground 1 and ground 2.