R v Daka

Case [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,…

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AGLC
R v Daka [2019] SASCFC 80
Case
[2019] SASCFC 80
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of David Daka for trafficking in a large commercial quantity of a controlled drug. The conviction followed a police search of a property at Mawson Lakes where the appellant resided with his brother, his brother's wife, and another individual, Aldo Tusha, as well as three children and a newborn baby. The search was part of a broader police operation targeting a syndicate allegedly involved in large-scale cannabis trafficking. The appellant, along with his brother and his brother's wife, were charged with trafficking, though the appeals of the brother and his wife were discontinued. The appellant abandoned one ground of appeal, and permission to appeal was granted on two other grounds.

The court was required to determine two primary legal issues. Firstly, whether the police had a reasonable basis to form a suspicion that enlivened their power to search the premises, and secondly, whether the search was unlawful and if the evidence obtained should be excluded in the exercise of the court's discretion. These issues arose from the appellant's challenge to the validity of the search warrant and the subsequent admission of evidence derived from the search.

The court dismissed the appeal on both grounds. Regarding the first ground, the court found that the police possessed sufficient intelligence, including details of intercepted telephone communications between the appellant, his brother, and a known figure in drug trafficking, Alfred Kola, to establish a reasonable suspicion for the search. This intelligence indicated involvement in cannabis cultivation and trafficking. The court concluded that the information provided to the police officers who decided to use the general search warrant was adequate to justify the search. The second ground of appeal, concerning the alleged unlawfulness of the search and the discretionary exclusion of evidence, was also dismissed, implying the court found no error in the trial judge's handling of this matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

I would dismiss ground 2.Conclusion I would dismiss the appeal on ground 1 and ground 2.

Ratio Decidendi

Legal Principle Established

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.