R v Daka - [2018] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v DAKA & ORS
[2018] SADC 110
Reasons for Ruling of His Honour Judge Slattery
7 September 2018
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - ARREST AND DETENTION FOR QUESTIONING AND INVESTIGATION
Summary Offences Act 1953 (SA) s79A, referred to.
R v Dolan (1992) 58 SASR 501, considered.

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ENTRY
Application under Rule 49 of the District Court Criminal Rules for orders that evidence obtained as a result of a search be excluded. The defendant alleged that:
(1) the police had no reasonable basis upon which they could have formed the necessary suspicion to search; and
(2) the search was unlawful and the evidence obtained thereby should be excluded.
The defendant Kazani sought the exclusion of a statement made by her to a police officer acknowledging the ownership of a pair of runners found in the garage of the home.
Police possessed information that two of the accused, Artur and David Daka, had connections to a person of intense interest, one Alfred Kola, who was involved in a syndicate of 17 persons that was involved in the production and trafficking of large commercial quantities of cannabis in South Australia and to interstate destinations, in money laundering and for committing weapons offences. The police had already made arrests and seizures connected with the operation of this syndicate. The information packages given to the police also had information on other target persons and premises, including the premises of Artur and David Daka, one of whom had a related antecedent drug record and one of whom was a known associate of Alfred Kola.
The holder of the general search warrant decided that based upon the material provided in the information package and also provided at a briefing held on 13 October 2014, he had sufficient information to have a reasonable cause to suspect for s67 of the Summary Offences Act 1953 (SA) in relation to the residence occupied by Daka and Daka.
When police attended at the residence and the front door was opened by one of the inhabitants, they smelled a very strong odour of cannabis coming from within the house. The police then executed upon the search warrant and in the house they found 28 kg of cannabis drying in a bedroom as well as other associated paraphernalia connected with the production and trafficking of cannabis both within the same bedroom and within a laundry and adjacent garage. In the house, the police also found a pistol that the police allege is an unregistered firearm and $3000 cash.
The defendants contend that the content of the information package given to the police at the briefing on 13 October 2014 left no room for the exercise of the discretion under s67 of the Summary Offences Act because of its mandatory nature. The defendants further contend that the detection of the cannabis odour at the front door of the home can have no connection to the formation of a suspicion for s67 of the Summary Offences Act as the presence of the police at the front door at that time was merely arbitrary. That presence was not connected with any proper basis for the police to be on the property at that time.
HELD
1. The senior police officer understood that in receiving the package of information, he was required to form his own independent view about whether he had a reasonable suspicion to conduct the search for s67(4) of the Summary Offences Act. Based upon all of the information before him, the officer holding the warrant had a sufficient basis to form a reasonable cause to suspect for that section.
2. At the time the police officer addressed a general question to the defendants of to whom the women’s running shoes belonged, he already had reasonable grounds to suspect that whoever was wearing those shoes, being one of the two females in the house, had been involved in cannabis related offences, and he was required to issue a s79A Summary Offences Act caution to them prior to asking the question.
3.       The evidence of the response given by Diane Kazani about her ownership of the runners is excluded.
4.       There is no principle either at common law or under statute of arbitrariness relating to a police officer attending at a domestic premises. The police, like all members of the public, had an implied licence to be on this property for a proper purpose and such licence was not revoked, expressly or impliedly. The police officers were not trespassers on the property.
5.       Application to exclude the evidence obtained as a result of the search is dismissed.
Summary Offences Act 1953 (SA) s67, 74D, 74E; District Court Criminal Rules 2014 (SA) R49; Controlled Substances Act 1984 (SA) s32(1); Firearms Act 1977 (SA) s11(1), 23(1); Criminal Law Consolidation Act 1935 (SA), referred to.
R v Rockford [2015] SASCFC 51, distinguished.
Halliday v Nevill (1984) 155 CLR 1, discussed.
R v Nguyen [2013] SASCFC 91; R v Nguyen [2015] SASCFC 7; George v Rockett (1990) 170 CLR 104; R v Haydon (No 4) [2005] SASC 18; R v Partington [2018] SASCFC 113; Police (SA) v Williams [2014] SASC 177; Lippl v Haines (1989) 18 NSWLR 620; Dinan v Brereton [1960] SASR 101; Eccles v Bourque (1974) 50 DLR (3d) 753, considered.

R v DAKA & ORS
[2018] SADC 110

By Information for trial dated 4 September 2018, the respondents, Artur Daka, David Daka and Diane Kazani are charged with the following offence:
Trafficking in a Large Commercial Quantity of a Controlled Drug (Section 32(1) of the Controlled Substances Act 1984).
On Counts 2 and 3 of the same Information, Artur Daka is charged with the following offences:
Possessing a Firearm Without a Licence. (Section 11(1) of the Firearms Act 1977).
Possessing an Unregistered Firearm. (Section 23(1) of the Firearms Act 1977).
Diane Kazani is the partner of Artur Daka and David Daka is the brother of Artur Daka.
On 14 October 2014 police attended at premises at 7 Parkview Drive Mawson Lakes at 7.05 am. Following the exercise of the powers by Detective Sergeant Santucci under s67 of the Summary Offences Act 1953 (SA), the police undertook a search of the premises. When doing so, they identified about 28 kg of cannabis drying in one of the bedrooms of the house. In that bedroom a drying fan positioned on a chair was operating and the ceiling had been adjusted to install a new or different form of ducting at the point of the air conditioning vent in the ceiling. An electrical cord went into the ceiling through that space.
Police located two bags of cannabis leaf and offcut material, one in bedroom 4 and one in an adjacent garage. Police also found in the garage a head stripper and a heat sealing machine. In the laundry of the house the police found a second heat sealing machine and a supply of plastic bags for use with the heat sealing machines. In the main bedroom of the house police found an amount of $3000 cash in $50 notes and a starting pistol which the prosecution allege is a firearm. Mr Artur Daka is alleged to possess that firearm but he does not hold a licence and the firearm is unregistered.
The Applications
By applications for directions dated 5 September 2018, 13 September 2017 and 15 September 2017, each of the defendants make application under Rule 49 of the District Court Criminal Rules 2014 (SA) for orders that the evidence obtained as a result of the search be excluded. Two principal bases are described: the first, that there was no reasonable basis upon which the police officers could form a suspicion that enlivened their power to search the premises; the second, that the search was unlawful and should be excluded in the exercise of the discretion of the Court.
In her application, Diane Kazani also sought an order that DNA evidence be excluded. That application was abandoned. However, Diane Kazani also sought orders for the exclusion of evidence of statements made by her relating to the finding within the premises of a pair of female’s runners in the garage adjacent to the room in which the cannabis was found. The runners were covered in cannabis resin and cannabis leaf material. They were discovered by a detective who questioned the occupants of the house without any warning as to the occupants’ rights, for example, to remain silent. The detective received a response from Diane Kazani that she owned the runners and this response obviously implicated her in the commission of a crime. Ms Kazani seeks the exclusion of that evidence.
Before proceeding further, it is appropriate to identify the particulars specified in the application for directions brought on behalf of Artur Daka. They read as follows:
1.   That the evidence obtained as a result of the search of 7 Parkview Drive Mawson Lakes be excluded.
PARTICULARS
1.1.The search was part of Operation Deluge
1.2.The Operation Order for Operation Deluge indicated that there would be a briefing for team leaders at 1300 hours on 13 October 2014 and that team leaders were to
1.2.1Ensure that their teams were briefed by 0700 on 14 October 2014 [3.2.2]
1.2.2That on arrival at target premises teams will thoroughly search the premises as per the briefing [3.2.4]
1.3   The Order was mandatory with no discretion allowed for the team leader
[Santucci] to form an independent view, as required by law, of the reasonableness of his suspicions [ R v Nguyen 2013 SASCFC 91 @ [41]; R v Rockford 2015 SASCFC 51; R v Nguyen 2015 SASCFC 7]
1.4   Santucci was provided with an intelligence pack at the briefing and the decision to search was made in accordance with the direction at that briefing.
1.5   Santucci’s affidavits do not indicate any basis for a suspicion let alone a reasonable suspicion and are internally inconsistent as to what he relied upon
1.6   Santucci’s notes do not indicate any basis for a suspicion let alone a reasonable suspicion
1.7   Santucci did not complete the PD271 as required setting out the basis for the search conducted as a result of the use of his search warrant
1.8   There was no video of the search notwithstanding the presence of a video camera [Olsen statement]
1.9   There was a failure to comply with the Summary Offences Act 74 D in that no notes of the conversations with the occupants of the premises were taken; no video of the initial conversations were made, and the police failed to put to the occupants during the course of the subsequent interview the content of any conversations
1.10    The fact that the police stumbled across evidence does not mean that there is retrospective justification for the search R v McKinnon 2007 SADC 132
1.11    The fundamental misunderstanding of the police [Operation Deluge] in having a command as to how a police officer was obliged to execute his search warrant is a matter of high public policy and should not be condoned by the Court [Rockford @ [43]-[47]]
1.12    Further the failure of Santucci to
·    Provide any details as to the basis of his reasonable suspicion
·    Complete the PD271
·    Ensure that the search was filmed
·    Comply with the Summary Offences Act
·    Provide any evidence of exercising his judgement independent of the command of his superior
should not as a matter of high public policy be condoned by allowing the search evidence to be admitted at trial. To do so would be to encourage police officers, deliberately or negligently, to avoid the Courts scrutiny as to the reasonableness of the use of their search warrants by providing no contemporaneous evidence of the basis of their decision
I will address these matters either in the context of the general discussion within these reasons, or, where I see fit, as a specific finding. After hearing evidence and argument on the issue of the search, I dismissed those applications and said that I would publish my reasons. At the same time, I ordered that the evidence of what was said by Diane Kazani about the runners should be excluded. I have been requested to provide my reasons; these are those reasons. An application for severance of the drug counts and the firearm counts was made later. I refused that application. I have not been asked to provide my reasons.
The Premises
The premises at 7 Parkview Drive Mawson Lakes are disposed as a relatively new home built in the Mawson Lakes development. In the course of the voir dire hearing, the Court was provided with an aerial photograph of the premises. The block on which the house sits is narrow and runs in a generally east-west direction. At the front of the house there is a portico or porch area which is set back only some three or four metres from the front entrance gate which fronts onto a relatively main road. At the rear of the premises is a further portico/porch with driveways contiguous with the garage to which I have earlier made mention. The photograph provided to the Court shows that cars are parked at the rear of the premises adjacent to Willowood Court, which is a no through road. Also visible in the photograph is a large open boat parked on the northern–most aspect of the driveway contiguous with the rear garage.
The Court has also been provided with a room plan of the home at 7 Parkview Drive. It is disposed as a four bedroom home with a lounge, kitchen, meals and family area. Adjacent to and to the north of the meals/family room area, there is a large open but roofed area described as a ‘pitched al fresco’. There is a roller door between that pitched al fresco area and the garage which is adjacent to bedroom 4 and across a hallway. The garage opens out onto the rear driveway to which I have earlier made reference. The main bedroom is bedroom 1 which has a walk-in-robe as well as an ensuite. There is a main bathroom between bedroom 2 and bedroom 3. At the rear of the premises, and so separated from the first three bedrooms at the front of the house, is bedroom 4. The rear porch/portico is adjacent to bedroom 4 and a door from that portico leads into bedroom 4 as a rear entrance. There is a doorway from the garage into a hallway leading into bedroom 4. Opposite that doorway is the laundry. The doorway into bedroom 4 is about 20 metres from the front door of the house.
Artur Daka and his wife Diane Kazani are the lessees of the property and have been so since at least 2013. David Daka and his wife Lucjana Daka have lived in the premises since 2013.
Alfred Kola
As at 13 October 2014, Mr Alfred Kola was a person of intense interest to the Australian Federal Police and to the South Australia Police. Mr Kola was suspected of being involved in the production, drying, storing and distribution in South Australia and other States and Territories of Australia of large commercial quantities of cannabis. As of 13 October 2014, the police had made at least two intercepts of couriers carrying very large quantities of dried cannabis in total of about 70kg to interstate destinations from South Australia. The police had also made nine arrests of persons involved with the Kola syndicate on drugs, weapons and other associated charges. The information possessed by police was that Mr Kola and a small number of others, totalling some seventeen people, were the primary architects of the arrangements for the production, storing, drying and distribution of the large commercial quantities of cannabis. At the time of the interception of the couriers, who were carrying the cannabis to interstate destinations, the police were aware of the involvement of Mr Kola in those activities. Upon the the arrest of a further nine persons, the police continued to observe the activities of Mr Kola. Mr Kola was suspected of being a controller of these operations and hence the police also took an intense interest in the contacts made between Mr Kola, an Albanian national, and all other persons in the background of these known facts.
Where a person such as Mr Kola is suspected of being involved in a serious criminal activity, those persons having a connection with Mr Kola, such as by phone or in face to face meetings, may attract a level of significance that they would not otherwise have. This is part of usual policing methods for the obtaining and sharing of intelligence. The information possessed by police disclosed that the production, packaging as well as the distribution of cannabis which involved Mr Kola and others had already commenced, couriers had been arrested and nine further persons arrested. That background must be understood in the context of what follows.
Operation Deluge
The South Australian Police commenced an operation called ‘Operation Deluge’ in February 2014. The written detail of that operation is contained within an operation order: Exhibit VDP2. The document shows that the operation targeted an Adelaide based criminal syndicate trafficking in large commercial quantities of cannabis both in South Australia and interstate. The operation involved the South Australia Police and a number of other interstate law enforcement agencies. As I described above, by 14 October 2014 there had been nine arrests for drug trafficking and/or firearms offences and approximately 150 pounds (70 kg) of dried cannabis had been seized both in South Australia and interstate. The police had by then prepared 27 shelf briefs and police intelligence had identified approximately 59 premises of interest in South Australia and interstate.
Alfred Kola and 17 of his associates had been identified as participating in a criminal organisation within the meaning of the Criminal Law Consolidation Act 1935 (SA). The police intended to charge Mr Kola with those offences. The police had also pursued an investigative focus of identifying instances of money laundering and opportunities for confiscation of assets across the Kola criminal organisation. The focus of the police enquiries and the arrest records disclose a broad approach and investigation by them into the alleged criminal activity.
There was a plan for action to be taken on 14 October 2014. Operation Deluge was planned to commence with raids on premises of interest in South Australia, Western Australia, New South Wales, Queensland and the Northern Territory. The police were seeking to make arrests. There was to be a post resolution phase which would comprise the extradition of four targets in Western Australia and another in the Northern Territory. There may also have been extra-territorial warrants in other jurisdictions.
The police intended for the operation to take place on Tuesday 14 October 2014 from about 7am. The mission was to arrest identified targets and search premises of interest for controlled drugs, cash, assets and other evidence associated with the trafficking of controlled drugs.
The operation order for Operation Deluge identified a general outline and particular phases. The first phase involved the compiling of intelligence on various target persons and premises. There were then to be deployment teams formed. A briefing was held for all command members and team leaders at 1pm on Monday 13 October 2014 at which roles and duties were to be outlined and team leaders were to be provided with target packages. Team leaders were then to ensure that they had briefed their team members prior to deployment at 0700 hours on Tuesday 14 October 2014. The following phases were then search and seizure and a contingency phase.
The duties specified for deployment teams required that all members be covertly deployed, that team leaders not act without prior approval from Deluge command and teams not act without instruction from their team leader. The team was made responsible for searching premises, seizure, transportation and handling of exhibits properly. They would also be responsible for any arrests.

In relation to the available police intelligence, field intelligence officers and analysts had prepared target packages on nominated target persons and premises. Each package contained intelligence gathered during the planning phase and set out details of the suspicions of police about offences committed against the Controlled Substances Act 1984 directed at those members who may decide to use general search warrants.
Each of the accused complain that on a proper reading, the Operation Deluge operation order (Exhibit VDP2) must be understood as a command to team leaders to search nominated premises within the tasks given to them so that the holder of a general search warrant would not exercise the discretion as required for the purposes of s67 of the Summary Offences Act 1953. Then, as the argument proceeded, there would be no basis for the holder of the general search warrant to have reasonable cause to suspect that an offence has been committed or is about to be committed, or that there is anything that may afford evidence as to the commission of an offence at the premises. This is because the operation order was to be understood as mandatory, leaving no room for the formation of a view and the exercise of a discretion.
The defendants further argue that because of its mandatory nature, there was no basis upon which the holder of the general search warrant (in the relevant case Detective Sergeant Santucci) could form any independent view, there was no evidence that he did form an independent view and therefore there was no basis for him to have formed any reasonable suspicion for s67(4) of the Summary Offences Act 1953. The prosecution called a number of witnesses, all of whom were cross-examined.
Evidence of Detective Brevet Sergeant Craig Glasson
The prosecution first called Detective Brevet Sergeant Craig Glasson. Detective Glasson was involved in the police operation called Operation Deluge. It began in February 2014 and the specific target was Alfred Kola whom the police believed was involved in the trafficking of cannabis both in South Australia and interstate.
The initial information about Kola was received from the Australian Federal Police, which had been investigating Kola for a series of separate offences. After the conclusion of those investigations, the AFP passed on to the South Australia Police all the information it had about Kola. This information confirmed to the South Australia Police that Kola was in company with a group of other people, involved in trafficking in cannabis. The AFP also provided the names of associates who were assisting Kola in that trafficking.
The cannabis being trafficked by Kola and his syndicate was in very large commercial quantities and it was being trafficked in South Australia, Western Australia and in the Northern Territory. The police had stopped two couriers carrying up to 70 kg of cannabis on interstate routes. That was part of an operation that had commenced in February 2014 involving police resources such as telephone intercepts, surveillance and other heavy intelligence gathering components.
Detective Glasson oversaw the investigation for the Drug and Organised Crime Task Force. He had the day-to-day role of controlling the investigation and he was involved in controlling the monitoring of telephone intercepts and identifying potential tactical opportunities to seize cannabis. He said that from the telephone intercepts, the police identified that a number of other people were assisting Kola in the syndicate operations both in South Australia and interstate. He also oversaw surveillance and determined when and where resources would be deployed as part of the operation.
In the course of this intelligence gathering operation, he was aware that there were intercepts of telephone calls made by Alfred Kola some of which were in the Albanian language. The police obtained the services of an Albanian translator who would listen to the calls and give verbal translations. It was from those translations that police could work out whether the calls were of interest. Where there was a call of interest, it would be flagged, interpreted and disseminated to the rest of the working group. Sometimes the information would be acted upon straight away. The police were aware of telephone calls being made between Alfred Kola and Artur or David Daka prior to 14 October 2014. The police identified some telephone calls of interest. They were in the Albanian language and those calls were translated. These translations did not provide any particular relevant information to the police. The focus appears to have been upon the fact of the telephone contacts.
Detective Glasson said that the resolution phase took place on 14 October 2014. At that time there was a coordinated search of premises within Western Australia, Northern Territory, Queensland and South Australia. Up to 59 houses were searched and the intention was that as far as possible, they be searched simultaneously in order to avoid the destruction of evidence and tip-offs to other persons involved in the activities.
On 13 October 2014, a formal briefing was held. Team leaders, including Detective Sergeant Santucci, attended and a Detective Senior Sergeant Halliday provided a briefing about the circumstances of the search. Each of the team leaders obtained an intelligence package that had been prepared by five officers involved in Operation Deluge with assistance from other intelligence officers. The provision of the intelligence package and the further information was directed towards whether the team leaders were prepared to exercise their general search warrants. Associated with that intelligence was the preparation of an Operation Order which is an administration document used to ensure that everyone in the meeting as a team leader is on the same page and has the same information.
Detective Glasson said that at the briefing on 13 October, there was a discussion about the telephone intercepts and there was nothing specific said in relation to Artur and David Daka. There was only a general discussion about the telephone intercepts having taken place. He had no specific discussion with Detective Sergeant Lidio Santucci on that day.
Detective Glasson said that the packages were handed to each team supervisor who was required to read the package, do their own due diligence, do their own background checks and to form their own view whether they were satisfied that there was sufficient information for the purposes of s67 of the Summary Offences Act 1953 for the holder of the general search warrant to form a view whether he or she had reasonable cause to suspect for that section. It was entirely up to each of the holders of the general search warrants. Therefore, each of the team leaders was left with the intelligence pack to deal with as they saw fit. He knew that team leaders were well aware that they needed to have sufficient facts to confirm whether they had a reasonable cause to suspect before they used a general search warrant. He was dealing with experienced senior police officers and it was not necessary to write down the requirements of s67 of the Summary Offences Act every time there was a consideration of the use of a general search warrant. Therefore, the intelligence was provided and it was up to the officers whether they used their general search warrant or not.
Cross-examining counsel appeared incredulous at this; I do not know why. Neither do I think that senior police officers should expect anything but that other senior police officers understand the limitations of their own authority, nor do I share cross-examining counsel’s incredulity.
Each of the holders of the general search warrant had to make their own decision as a completely independent exercise of their discretion. Team leaders were given time to form their own views. There were not sufficient teams to search all of the premises at one time as had been hoped. The intention was to commence the searches at 7am, however there needed to be a rolling search pattern adopted. That meant that some searches would not commence until about midday.
In relation to some of these packages, some of the team leaders did come back to Detective Glasson and his group and ask for some more information and clarification. I accept the whole of the evidence given by Detective Glasson as reliable and credible.
Evidence of Detective Sergeant Lidio Santucci
Detective Sergeant Lidio Santucci gave evidence. He attended the briefing on 13 October 2014. The meeting was related to Operation Deluge. He knew that the principal player was Alfred Kola and he was provided with an intelligence package at the meeting.
Detective Sergeant Santucci said that at the time he obtained this package, he understood that Alfred Kola had been in direct personal contact with David Daka and Artur Daka. This information was gleaned during the operations that the Drug and Organised Crime branch were conducting. The suspicion was that David Daka and Artur Daka both had connections with Kola in relation to the trafficking of large commercial quantities of cannabis. He gleaned that information from the contents of the package and then from discussions that he had with other officers in the Drug and Organised Crime Task Force at this meeting. He said that after receiving the package and the information, he returned to Port Adelaide and briefed his team in relation to the operation. He did not take notes. It is good practice to make notes and so it is advisable but the absence of the notes does not in any way strike at the credibility of this evidence of Detective Sergeant Santucci. I have found all of his evidence to be truthful, reliable and accurate.
He said that he arrived at 7 Parkview Drive Mawson Lakes at about 7am on 14 October 2014. He went to the front door of the premises which was only a short distance of some three to four metres away from the street entrance via an open front gate and there was no impediment in his way of getting to the front door. There was no evidence of any signage on the premises forbidding entry by anyone to the path up to the front door. He knocked on the door and the door was opened. As soon as the front door opened, he was struck by the overwhelming pungent odour of cannabis. As soon as he smelled the cannabis, he 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 said that at the time he arrived at the premises he had made the decision to execute upon his general search warrant because he was satisfied that from the whole of the information that he possessed, 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 was formed as a result of the information that he received at the briefing on 13 October 2014. This included the intelligence package as well as the whole of the information given to him on that day. Once he had received all of that information, he formed his own conclusion. Other information included that Alfred Kola was allegedly trafficking in cannabis and that an operation was being conducted in relation to him. During the operation’s intelligence gathering phase David and Artur Daka had been identified as having been in telephone and then personal contact with Kola. He also said that the intelligence package provided evidence to suggest that at least one of David or Artur Daka had Alfred Kola as an associate and that Artur Daka had been found guilty of being in possession of prescribed equipment for the cultivation of cannabis. Other information was that the operation was about trafficking in cannabis which was already occurring and about which courier intercepts had happened and arrests made, information gathered about telephone calls occurring and contact happening directly between the two Daka brothers and Kola. The panoply of all of these matters led him to form a suspicion for the purposes of s67 of the Summary Offences Act. He said that his suspicion had probably turned more to belief that offences were being committed at the time that the door was opened to the premises and he smelled the odour of cannabis coming from inside the house. And it was only then that he executed his general search warrant.
After entering the house, Detective Sergeant Santucci identified that in bedroom 4 there was a very large amount of cannabis (later weighed at 28 kg) drying under an electric fan. Before that time, the occupants of the house had been asked to sit in the lounge room. This was for control. No cautions were issued at that time; the reason was that Detective Sergeant Santucci did not know who was implicated and the information they had was too general. They had no information about whether bedroom 4 was a grow room, or whether what was found there was prepared cannabis grown elsewhere. He simply did not know enough about what was going on at the time.
He said that in relation to this search he has not been able to find a copy of a document called a PD271 which recorded the information he had leading to the search. In the usual course he would prepare this document after a search. He said he had not been able to find a copy and he could not explain why there is no copy to be found. He said he had earlier submitted the original and this evidence was not challenged.
Detective Sergeant Santucci agreed in cross-examination that he did not keep any note about the information he received at the briefing on 13 October 2014. He therefore did not keep a record of all of the information which led to him forming the view that he had reasonable cause to suspect an offence. All that he retained was the actual intelligence package (VDP2). He agreed that at the time that he went to the front door of 7 Parkview Drive Mawson Lakes, he had an intention to search the premises using his general search warrant. That was based upon all of the information that he had received on 13 October 2014.
When he searched the house, he did not use a video camera initially. This was despite him forming the intention to search. He went through the door first and did not operate a camera even though one was present. When he spoke to the occupants of the house, he had no idea who may have been involved in what was going on in the house. Therefore, he did not think it was necessary to operate the video camera at that time. There was no one person that in particular was suspected of anything at that point. All that he knew was that these people were present in a home that contained a very large amount of drying cannabis that emitted a strong pungent odour. It was therefore very difficult to put anything to anybody because he did not know what to put to people for the investigation. He also said that as a primary and tertiary entry premises, the police do not record every conversation had with every person until they start to identify things. That is why the occupants were asked to sit in one place and the police then go on and search. Once the people in the house were controlled, he then had to go and find what was in the house. Once that was done then the questions would be asked about who had been involved. All he did was obtain details from the people there about who they were.
Detective Sergeant Santucci agreed that when he formed the view that he had a basis to exercise his authority under the general search warrant, he did not have any specific information about the contents of the meetings or the conversations that linked Mr Kola to Artur and David Daka. He said that he was provided with information that Mr Kola was part of an Albanian syndicate but he was not aware that Daka was an Albanian name. He did not see any reason to question Detective Glasson about the information he had received. He said he based his suspicion on the information he received from the Drug and Organised Crime Task Force members who were conducting a dedicated operation against Mr Kola. During that investigation, the Daka brothers were identified as being in company with and in contact with Mr Kola. The intelligence package also provided information that Mr Kola was an associate of David Daka and that one of the brothers had previously been involved in cannabis offences. His memory was that one of the brothers had been guilty of possession of prescribed equipment for the cultivation of cannabis and that was in the intelligence package. Therefore, the information he possessed at the time he formed his view was not only limited to the information package itself but all of the information he received and the discussions that he heard at the briefing on 13 October 2014.
The running shoes
Detective Sergeant Santucci said that the smell of cannabis at the time that the front door was opened was unforgettable and overpowering. However, after investigating the rooms of the house, he did think that a particular adult within the house must have been involved. He thought that he started with the proposition that all people in the house may be involved in what was going on in the house.
He said that at the time that he saw the cannabis on the floor in bedroom 4, he knew that an indictable offence was being committed at the house and that in all likelihood, the adult members of the house were involved in committing that indictable offence. However, he did not then go back to the front room and issue a caution to them.
In the time that followed, he went to the garage and found a pair of women’s runners. These were covered in an oily sticky resin, cannabis leaf and other cannabis material. There was a similar type of material inside the shoes. The evidence was that what was found in bedroom 4 was newly harvested female cannabis head; in that form, cannabis is wet, sticky and needs to be dried for sale. In the drying process the cannabis loses a lot of its weight due to the loss of moisture in the head.
Detective Sergeant Santucci then picked up the shoes, brought them to the lounge room at the front of the house and then spoke to the assembled adults. He then asked them generally whose shoes he was holding. Diane Kazani identified them as her shoes. Ms Kazani seeks the exclusion of this evidence on the basis that in light of the views already then formed by Detective Sergeant Santucci, a caution should have been issued before she answered any questions Although not stated specifically by counsel, I understood this application was based upon an alleged failure to comply with s79A of the Summary Offences Act.
In R v Dolan (1992) 58 SASR 501 at 505, King CJ dealt with the issue of when a caution should be given and the consequences of a failure to give a caution. In the context of s79A of the Summary Offences Act 1953, King CJ held as follows (at 505):
The questioning of a suspect who is under arrest or who is otherwise in custody, tends naturally to the conclusion that he is not acting in the exercise of free choice in answering the questions. In such circumstances the caution is virtually an indispensable condition of the admissibility of the answers. The need for the caution is almost as compelling where, although the arrest has not actually been made, the police officer has decided to make the arrest. There are many cases which have insisted on the need for caution in these circumstances.
Later in his Honour’s reasons on the same page, King CJ held as follows:
It has always been accepted that while the investigation is at a stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of the omission of the caution. It seems to me, however, that where a police officer has reached the stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions…
Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.

At the time that Detective Sergeant Santucci brought the women’s runners to the front of the house, he could only be addressing two women, Diane Kazani and Lucjana Daka. These runners were found in the garage positioned with a cannabis head stripper, a heat sealing machine, a bag of cannabis leaf and stem material and outside of the room in which the cannabis was laid out and drying. There was a strong inference that whoever was wearing these shoes had been involved in the process of dealing in close contact with that cannabis such that the cannabis resin, leaf material and other cannabis material attached to the shoes.
I am satisfied that having collected the women’s shoes, and having seen the head stripper, a heat sealing machine, one or two bags of cannabis off-cuts and the shoes in the garage as well as the cannabis drying in bedroom 4 that Detective Sergeant Santucci had reached the stage in his investigation at which he had reasonable grounds for suspecting one of the two females in the house, of being involved in the production of the cannabis head material. It was incumbent upon Detective Sergeant Santucci to have administered the caution prior to asking any question of any person sitting in the lounge room about the ownership of the runners in light of the demonstrably strong connection between the person wearing the runners and the activities connected with the preparation of the cannabis head being dried in bedroom 4. I exclude that evidence because of that failure.
Evidence of Detective Paul O’Donnell
Detective Paul O’Donnell gave evidence. He was one of the detectives who attended at 7 Parkview Drive Mawson Lakes on 14 October 2014. He made notes which disclosed that he was attending in relation to a Serious and Organised Crime Branch operation called Operation Deluge. This concerned a cannabis trafficking syndicate. He recalls that there was some briefing and he recalls that the name Daka was mentioned.
He attended the premises at 7am with the other detectives.
One of the detectives knocked on the door and it was answered. He immediately noticed a very strong smell of cannabis coming from the premises. He cannot recall if he could smell it before the door was opened, but he definitely smelled it when the door was opened.
He interviewed Aldo Tusha, one of the occupants and arrested him at 9.04 am on that day. He had identified Tusha at 7.05 am but the video was not activated until 9.04 am. David Daka was later interviewed and arrested. The video in relation to David Daka was activated at 10.02 am; in that recorded interview David Daka refused to answer any questions.
He said that there was also an interview with Diane Kazani. The commencement of the recording of the interview was 11.15 am.
Detective O’Donnell could not explain why he did not video the search but he said that not all searches are videoed. He also had a change of role. He said that Detective Walker was initially the exhibits officer but he eventually became the exhibits officer.
He agreed that he was in the home for about three hours and in that time he spoke to the occupants of the house. He identified Mr Tusha at 7.05 am when he obtained (and recorded in his notes) Mr Tusha’s name, date of birth, telephone numbers and other personal things. He then spoke to David Daka and obtained his full name, address, date of birth and previous residences. All of this information was recorded in his notes.
It was two hours later when he spoke to Tusha and he had not spoken to the other occupants of the house prior to that time. This was because the occupants had some problems with English and he and the other police officers formed the view that interpreters were required. He then became involved in the logging of exhibits and the police were largely involved in the searching of the house. Therefore, he does not think that he had any conversation with any of the occupants of the house unless the video was on. His role was to be the exhibits officer and he was talking to the other officers.
His clear recollection was that the occupants sat quietly in the front room of the house whilst the police officers did their job. He cannot say for certain that there were no conversations with the occupants but on his observations, anything that was said to them was recorded on video. He was the person who activated the video camera for the interview with David Daka. He said he was well aware of his obligations under s74D of the Summary Offences Act 1953 but said that he did not interview anyone without using the camera.
He said that there were a number of police officers in the house. In those circumstances, in the absence of any interviews being conducted with the occupants, he would not have a video running. There also were (earlier) operational safety reasons. When they are going into a home, and particularly with drug jobs, an officer might be holding a sledge hammer or some other type of implement and the officer cannot operate the camera and hold such an implement at the same time. He thinks that there were such implements there at the time they approached the front door. It is often the case that people do not answer the door and the door has to be forced. This was not the case here. They were allowed into the house by the person who opened the door.
He said that the video camera is often not activated until a police officer is going to have a conversation with someone who is suspected of committing an offence. Sometimes the video camera is activated prior to knocking on the front door and prior to the searching beginning; that is not always the case.
Submissions
I turn then to the submissions of the parties. They are largely encapsulated within the application for direction of Artur Daka, however, there are also further issues raised by Ms Diane Kazani in her application concerning the status of the police officers at the front door of the accused’s premises. I will deal with those matters separately.
The contention of all defendants was that the search was part of Operation Deluge and the briefing documents gave team leaders no discretion about whether or not they would form a view for the purposes of s67 of the Summary Offences Act 1953. The defendants submit that, properly understood, the evidence discloses only that the team leaders (and the teams of police) were required to attend at various premises on 14 October 2014 and to perform the searches without having formed any independent view as required by law based upon any reasonable cause to suspect. The defendants contend that such an approach is contrary to well settled authority.
Alternatively, the defendants contend that there was no material within the depositions to indicate any basis upon which Detective Sergeant Santucci as the team leader had any information available to him upon which he could form a reasonable cause to suspect for s67 of the Summary Offences Act 1953. Criticisms were made of the absence of notes indicating any basis for the suspicion, the failure to complete the document called ‘PD271’ which sets out the basis of the search and the absence of a video notwithstanding the presence of a video camera. As a further alternative, the defendants complain that there was a failure to comply with s74D of the Summary Offences Act 1953 in that no notes of the conversations with occupants of the premises was taken, there were no videos of initial conversations with the defendants and all that the police could point to was really having stumbled across evidence. There could be no retrospective justification for the search.
I will deal with those arguments in turn. It is correct that the search was part of Operation Deluge and the Operations Order for that operation is part of the evidence before the Court. Contrary to the submission of the defendants, the evidence of Detective Sergeant Santucci is that he went to the briefing at 1300 hours on 13 October 2014 and there obtained both the documents and a number of pieces of information concerning the defendants. He was well aware of his obligations under s67 of the Summary Offences Act 1953 and the restrictions upon him, as the holder of the general search warrant, in exercising his powers under that warrant in the absence of a reasonable cause to suspect. Those things were clearly in his mind at the time of the briefing and afterwards.
At the time of the briefing, Detective Sergeant Santucci was made aware of the syndicate controlled by Alfred Kola comprising of Kola and a number of other persons involved in criminal activities connected with the production and sale of cannabis. At the briefing, he received information that there had already been a number of arrests of couriers made, those couriers carrying dried cannabis in packages of up to 70 kg in weight. He also learned of at least nine other arrests of persons involved in the syndicate on offences allegedly involving drugs and firearms. He learned there were a number of people involved in this syndicate, that the syndicate was operating from a number of premises, that, in effect, Kola was the controller of the syndicate and that he had used a number of sites throughout Adelaide as the places at which the syndicate operated.
At the briefing, Detective Sergeant Santucci learned that as a result of the intelligence gathering processes of the police with which he was well familiar, the police had identified a number of connections between Kola and David and Artur Daka. The first was telephone contacts between them, the second was face-to-face meetings between them. He also learned that Artur Daka had previously been prosecuted for offences relating to possession of prescribed equipment, namely lights, ballast boxes and hydroponic equipment. The information available to Detective Sergeant Santucci included the criminal record of Artur Daka, the fact of the telephonic connections between Artur Daka, David Daka and Mr Kola, the fact of the face-to-face meetings between Mr Kola, Artur Daka and David Daka and the implementation by Mr Kola and the syndicate of growing, processing, drying, packaging and transporting cannabis both within and outside of South Australia. As well, he had all of the information available to him on the face of the operations document. Detective Sergeant Santucci also possessed evidence which juxtaposed a number of facts. These were: the fact that the Kola syndicate was operating and couriers were being used to carry large amounts of dried cannabis; the interception of those couriers and seizure of about 70 kg of cannabis; the arrest of nine people on drugs and firearms charges who were connected with this syndicate; the fact of the connection between Kola and Artur and David Daka; the fact of the phone calls between them; the fact of the face to face meetings between them. I am satisfied that in accordance with authority[1] that Detective Sergeant Santucci possessed a state of surmise where proof was lacking but the facts could reasonably ground a suspicion even though they were insufficient reasonably to ground a belief. I am satisfied that this was a sufficient factual basis for the formation of the suspicion having regard to the culmination of all of these circumstances.
[1] R v Nguyen [2013] SASCFC 91 at [41]; R v Rockford [2015] SASCFC 51, (2015) 122 SASR 391; R v Nguyen [2015] SASCFC 7; George v Rockett (1990) 170 CLR 104.
I am unable to accept the fundamental proposition of the defendants. I am also unable to accept that the order received by Detective Sergeant Santucci operated in a mandatory sense upon him thereby removing his discretion. He formed an independent view. He was well aware of his obligations under s67 of the Summary Offences Act 1953 and of the need for him to independently form a view about whether there was a reasonable cause to suspect. He was satisfied from all of the information that he had received at the briefing on 13 October 2014 that he had a sufficient basis to form a reasonable cause to suspect in light of the culmination of all of the circumstances and the facts and materials that he received on that day. He was relying not only upon the content of the operation order but was relying upon a combination of other facts and information that were conveyed to him by other officers within the information briefing. At no time did he consider himself encumbered by the terms of the operation order such that it was mandatory, that it removed his discretion and therefore removed his ability to form any independent view. He considered all of the evidence before him and formed his own independent view.
I have earlier identified the advisability and good practice of keeping notes but I am unable to accept the proposition that a police officer must, in recorded notes, identify every integer or step along a process of reasoning leading to a conclusion. This proposition is akin to an artificial construct that pays no attention to the information possessed by police, the skills of police officers and the reality of the situations that confront police officers daily in the discharge of their duties in this area. The facts must reasonably ground a suspicion and those facts do not need to be sufficient reasonably to ground a belief. As long as there is a sufficient factual basis shown for the formation of the reasonable cause to suspect, that is all that is necessary. I am satisfied that there was sufficient factual information before Detective Sergeant Santucci to form a reasonable cause to suspect wrongdoing sufficient for him to exercise the powers given to him under s67 of the Summary Offences Act 1953. I consider that it is not necessary for him to specifically identify and then amplify in some written form, his exact process of reasoning. A state of conjecture or surmise where proof is lacking but based upon sufficient facts is not a precise scientific process; it is a matter of judgment requiring the application of experience and knowledge to the factual circumstances and the requirements of the task.
I am also unable to accept the proposition that Detective Sergeant Santucci’s statements do not indicate any basis for a suspicion, let alone a reasonable suspicion. I have set out above the information available to him. As the authorities suggest, the information must be such that the reasonable person thinking reasonably may form the suspicion. That reasonable person will have regard to the whole of the information then available. In my consideration, that was a reasonable basis. These materials must therefore also be read with the other information that was available to Detective Sergeant Santucci.
An allegation is made by Artur Daka and joined by the other defendants that Detective Sergeant Santucci did not complete the form PD271. The evidence is that Detective Sergeant Santucci has not been able to locate a copy of the completed form PD271 that he submitted. He invariably completed that document and lodged it; he would generally keep a copy. He is not able to find a copy in this instance. The evidence is that he did complete the PD271 form. I do not accept the assertion that Detective Sergeant Santucci did not complete the form. The evidence which I accept is to the opposite effect.
It is then submitted that there was no video of the search notwithstanding the presence of a video camera. There is evidence from two of the police officers who were present at the search that the search was conducted without the camera being operated. As Detective O’Donnell said, it would have been wonderful to have it all filmed on the camera, but there were many impracticalities about such a position. The first was that it was impossible to hold the camera and hold the other implements that the police had at the time that they knocked on the front door. Then there was an immediate detection of a very strong smell of cannabis which was overpowering. The police were therefore in a very different position once they had detected that smell. The cannabis, the source of the smell, was somewhere in the house and they were required to identify the cannabis, identify the process (for example growing, harvesting or drying) connected to the cannabis smell, attempt to identify who might have been involved in that process and then, later, to commence the process of interviewing the inhabitants of the house. The video camera was operated at the time when there was an interview with the occupants of the house.
That submission of the defendants was a forerunner to the submission that there was a failure to comply with s74D of the Summary Offences Act 1953 because no notes of the conversations with the occupants of the premises were taken and there were no videos of the initial conversations made. The first part of this submission is also factually inaccurate. The names and details of the suspects were taken and recorded in notes, copies of which were available to the defendants. The occupants were then placed in one room. There was also a complaint that there was a failure to put to the occupants the contents of any prior conversations. I am unable to accept this submission. Each of the police officers was well aware of their obligations under s74D of the Summary Offences Act 1953. That section requires that an investigating officer who suspects a person of having committed an indictable offence and who proposes to interview the suspect must ensure that the requirements of the section are complied with. The first is that if it is reasonably practicable to make an audio-visual record of the interview; secondly, if it is not practicable to make the audio-visual record, to provide an audio record. If it is not practicable to do one of those two things, then a written record must be made of the interview as soon as practicable after the interview. Under s74E, in proceedings for an indictable offence, the evidence of an interview between an investigating officer and a defendant is inadmissible unless the investigating officer has complied with this provision or the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s noncompliance. In relation to s74D, it is plain on the authorities that the necessary suspicion exists if a police officer apprehends that a defendant might possibly have committed an indictable offence. [2]
[2] R v Haydon (No 4) [2005] SASC 18.
The evidence before the Court indicates that leaving aside the conversation of Detective Sergeant Santucci with Diane Kazani that I have excluded, the only other contact between the police officers and the defendants was to ask them to sit in the lounge room and to give their personal details which were then recorded. As Detective O’Donnell said, the police immediately identified a problem of communication because English was not the first language of the defendants. As a result, there was no communication between the police officers and the defendants because of those language difficulties and because until such time as there were recorded interviews, there was nothing to discuss with them. The only interviews that did occur were recorded on video tape, and there is no complaint about the recording of those interviews. I am satisfied that there was nothing to read back to the defendants because there was no interview. I am therefore unable to accept the criticisms of the defendants in relation to the operation of s74D and therefore, in consequence, s74E of the Summary Offences Act. No occasion arises for there to be a criticism of anything done by the police in that regard. In reaching these conclusions, I have had full regard to the judgement of the Court of Criminal Appeal of South Australia in R v Partington.[3]
[3] [2018] SASCFC 113.
If I am wrong about any of the aspects of the formation of the reasonable cause to suspect, then I am also satisfied that once the front door of the house was opened, the police had reasonable cause to suspect, for s67 of the Summary Offences Act 1953 because of the overwhelming, pungent smell of cannabis emanating from the house. I reject the assertion of the defendants that there was any retrospective justification for the search. As I explain later, the police had an implied licence to be on the premises at 7 Parkview Drive Mawson Lakes on that day. Merely because they detected a very strong and pungent smell of cannabis on the opening of the door does not render the obtaining of evidence following that detection a retrospective justification for a search. Nor do I accept that in some way the decision of the Full Court of the Court of Criminal Appeal in Rockford[4] in any way informs this discussion.
[4] R v Rockford [2015] SASCFC 51.

The suggestion of some high public policy issue being in application here is misconceived. The police were on the property as implied licensees for the reasons which I will discuss later. The facts in Rockford are materially different. The facts in Rockford are described in [15] – [17] of the decision of Stanley J as follows:
On 13 February 2011 Detective Sergeant Hanssen and Detective Brevet Sergeant Moore, acting on information, attended at a number of properties near Lobethal Road, Ashton in the Adelaide Hills. They had been informed that the applicant was growing cannabis on a property in the area. They gave evidence of searching three properties in the vicinity before they came to a property on a dirt track off Lobethal Road which, unknown to them at the time, had been leased by the applicant.
At the entrance to the property there was a gate. It was locked using a chain and padlock or had the appearance of being locked. I will return to this topic. Nonetheless, the officers entered the property for the purpose of conducting their investigation into whether the applicant had committed any drug offence.
The officers walked up a track until they came to a residence and some sheds on the property. One of them knocked on the front door of the property. When no-one answered they proceeded to walk around the exterior of the house where they observed a motor vehicle and inspected a shed. Inside the shed they observed items which they identified as having the potential to be used in the hydroponic cultivation of cannabis. Outside the shed they heard a noise emanating from a locked shed which they associated with functioning hydroponic equipment. They broke into the locked shed and there located two hydroponic rooms each containing nine mature cannabis plants, 24 cannabis seedlings and two small cannabis plants in pots. They also located about 3.4 kilograms of dried cannabis as well as hydroponic and other prescribed equipment used to grow cannabis. [5]
[5] [2015] 122 SASR 391 at 395.
That is not this case. No high public policy issue arises by this or any other combination of circumstances as contended for by the defendants.
Arbitrariness argument
Diane Kazani made submissions on the topic separately although it appeared that the other defendants agreed with and joined in those submissions. Her first submission was that if the formation of the reasonable cause to suspect under s67 Summary Offences Act 1953 is not sound, then the fact that the police are on the premises is arbitrary. She then contended that this arbitrariness is exactly the thing which the legislation seeks to exclude by providing the protections within it. On this argument, as the presence of the police was alleged to be arbitrary, such arbitrariness would operate to prevent the legality of the presence of the police on the premises and, as a result, to preclude evidence of anything leading to or after they knocked on the front door. As an example, Ms Kazani submitted through her counsel:
…it would be like saying: ‘It’s okay for police every time you’re on Sunday shift go and knock on a door and you might get lucky and smell some cannabis’ and that is exactly the intrusion into civil liberties that is fought against. [6]
[6] T135.9-.12.
I asked for some indication of the limits of this argument as it’s logical extension was that no person could ever on a secondary basis have a reasonable cause to suspect or reasonably suspect. Ms Kazani’s answer was that it is the arbitrariness of knocking on the door that is the problem. However, I asked her to define the limits of her arbitrariness argument. She said that if a police officer was walking down the street and smelled or heard something which founded a reasonable cause to suspect, then you would have a lack of arbitrariness because the officer had valid and sound information before attending at the potential source of the crime. I then put to Ms Kazani’s counsel that the logical extension of that argument was that any police officer who is mistakenly on a property and who then becomes aware of the commission of a serious crime must remove himself or herself from the property and perhaps come back to the property once the arbitrariness problem had expired due to the effluxion of some “arbitrary” period of time. It was then submitted that the difference was that in the case of her example, there was no valid basis to bring the police to the front door of the house. If the police officer smelled the cannabis from the street then the police officer had other good reason to be at the front door. I am unable to accept that argument. I consider that it is contrary to authority and misapprehends the common law principle that there is an implied licensee for a person to be on a premises.
A discussion about the principles concerning the implied licence of police officers to be on private property requires a consideration of the decision of the High Court in Halliday v Nevill.[7] The facts of that case were that Halliday, an unlicensed driver, reversed a motor vehicle out of a driveway of a property which was not his home and onto a road. He was detected doing so by two police officers, one of whom recognised him as an unlicensed driver. When Halliday saw the police car coming down the street, he drove back into the driveway from which he had reversed and got out of the car. The police officers came onto the property by walking down the driveway and arrested him at the side of the car he had been driving. When he was being escorted back down the driveway, he broke free from the police, ran across the road and entered his own home. He was pursued into that home, a scuffle ensued and he was arrested.
[7] (1984) 155 CLR 1.
At first instance the Magistrate dismissed the Information finding that the arrest on the driveway of the home was unlawful as the police officers were trespassers at the time. On an order nisi to review those dismissals, Brooking J ordered that the orders nisi were to be made absolute. Halliday appealed to the High Court. The decision of the Court is to be found in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ. The majority held that the appeal must fail unless the police constable was a trespasser at the time he came onto the driveway of the property to arrest Halliday. The majority found that the evidence on the topic was sparse but that the police constable had an implied licence from the occupier of the premises to be upon the driveway. In so finding, the discussion of the applicable principles by the majority gives rise to the following propositions:
1.       Whether an occupier has granted a licence to another to enter upon property is a question of fact and 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 was revoked.[8]
[8]    Ibid at 7.
2.   The most common instances of an implied licence are connected with the means of access by paths, driveways or both leading to the entrance of the ordinary suburban dwelling house.
3.   If the path or driveway leading to the entrance of a dwelling house is unobstructed and with the entrance gate unlocked and there is no notice or other indication that entry by visitors generally or by particularly designated visitors is forbidden or unauthorised, the law will imply a licence in favour of any member of the public to go upon that path or driveway to the entrance of the dwelling for the purpose of lawful communication with … any person in the house.[9]
4.   Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.
5.   The question is not whether the occupier intended to give the licence; the appropriate question is whether it can be identified that the occupier has revoked the licence impliedly or expressly. Otherwise the licence will be implied.
6.   An implied licence will not ordinarily be restricted to presence on the open driveway or a path for the purpose of going to the entrance of a home and a passer-by may, by necessity, come onto the drive or path in order to avoid an obstruction, to retrieve a belonging or for such practical matters as to lead away an errant child.[10]
7.   A path or driveway is ordinarily held out by an occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the occupier, his or her guests or his or her property.[11]
8.   In the absence of a driveway or path being closed off or there being an obstruction or notice indicating that visitors generally or of a particular class are forbidden to come on the premises, then a variety of persons with a variety of legitimate purposes have, as a matter of law, an implied licence from the occupiers to go upon the premises.
9.   As a matter of common sense, and as a matter of public policy, a member of the police force has an implied or tacit licence from the occupier to set foot on the open driveway of a premises for the purpose of questioning or arresting a person whom he has observed committing an offence on a public street in the immediate vicinity of that driveway. This does not involve any derogation of the right of an occupier to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land.
10. In the absence of any indication to the contrary, the implied licence to persons to go upon the open driveway (or path) of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway (or path) in the ordinary course of his or her duties.
11. Neither a member of the public nor a police officer has an implied licence to go on to real property to commit a trespass.
[9]    Ibid at 7.
[10] Ibid at 7.
[11] Ibid at 7-8.
The appeal was dismissed. Brennan J dissented.
Different common law rules have application in other different factual circumstances. One includes where a police officer wishes to enter onto premises to arrest a person, holding the belief that the particular person is on those premises. In Police (SA) v Williams[12] Peek J said at [290]:
If a constable has the present power to arrest a particular person (pursuant to a warrant or statutory power) and intends to do so and has reasonable and probable grounds to believe that that particular person is then in a particular premises, the constable may enter upon those premises and arrest that person (emphasis as per judgement).
[12] [2014] SASC 177.
A police officer may not enter premises on the basis of a suspicion that an offender might be in those premises; the police officer must have reasonable and probable grounds for the belief that the person sought is actually within those premises. It is well accepted that a reasonable belief is a different test from a reasonable suspicion.[13]
[13] George v Rockett (1990) 170 CLR 104 at 115 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
In Lippl v Haines[14] Gleeson CJ said as follows:
If a police officer is authorised … to arrest a person without warrant then, according to common law principles, it may be lawful for him to engage in conduct that would otherwise amount to a trespass for the purpose of making, or endeavouring to make, such an arrest. His conduct will be lawful where the entry is reasonably necessary for the purpose mentioned but always provided two conditions are satisfied. First, he must believe on reasonable and probable grounds, prior to entry, that the person he is seeking to arrest is on the premises. Secondly … there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.
The above principles are stated in terms of forcible entry, because that is the problem which arises in the present case. Non-forcible entry may give rise to additional questions, such as questions of implied licence, which are not presently relevant: cf Halliday v Nevill…
[14] (1989) 18 NSWLR 620 at 622.
Gleeson CJ then confirmed that there is no common law power to enter private property in order to see if a particular person is there.[15]
[15] Ibid at 623.
In the case at bar, the police officers did not enter the property to make an arrest of a person who they may have thought was there or to see if a particular person was there. The police officers were on the property in order to assist Detective Sergeant Santucci in the exercise of his powers under his general search warrant, he having formed a reasonable cause to suspect.
On the application of the common law principles, it is irrelevant if Detective Sergeant Santucci wrongly formed that view or alternatively did not have a sufficient basis to form that view. There was no evidence of any basis upon which the occupiers of the home gave any indication such as by advising visitors generally or, for example, the police that intrusion upon the open pathway was forbidden. In those circumstances, the police were and remained invitees on the premises at the time that they approached the front door of the premises. That remains the case even if the police were mistaken about their belief as to why they were on the premises.
The rights of the police would be terminated if the implied license was revoked or the actions of the police constituted a trespass upon the premises. There is no evidence before the Court to show how it may be said that the police were trespassers upon the property. There is no evidence of any interference with the rights of any occupier at the time that they walked to the front door and there is certainly no evidence of any damage caused by them sufficient to constitute them as being trespassers upon the property. As there was no evidence of a trespass being committed or of a revocation, the police were permitted to enter the property. I am therefore unable to accept the submissions of Ms Diane Kazani. My researches have not been able to identify any concept or principle of ‘arbitrariness’ as she submitted. To the contrary, there is no such rule at common law and such a proposition runs counter to well established common law principles.
It therefore follows that at the time the police officers came onto the premises, they did so under an implied licence to be on the property, they being there for a proper purpose. Even accepting for the sake of argument the contentions put by the defendants in relation to the formation of the reasonable cause to suspect, there was no termination of that implied licence. This is because there was no evidence that the police were on the property except for their stated purpose and there is no evidence that the implied licence would be terminated by some action of the police sufficient to constitute a trespass.
The decision of Peek J in Williams turned on the necessity for the formation of a belief by police officers that an offender was on a property before they may come onto that property, announce their presence and pursue the person of interest on that property. It will be very rare that the implied license of police officers to come onto a property will arise in such circumstances because of the necessity for the officer to be in a position to form a belief. Generally, an implied licence is not involved with concepts relating to the formation of a belief. So much is clear from the decision of Gleeson CJ in Lippl.[16]
[16] See also Napier CJ in Dinan v Brereton [1960] SASR 101 and Dickson J in Eccles v Bourque (1974) 50 DLR (3d) 753 at 756-7.
I am therefore satisfied on all of the evidence that if I am wrong about the question of the application of s67 of the Summary Offences Act 1953 and the formation of a reasonable cause to suspect based upon the information available to Detective Sergeant Santucci, the detection of the very pungent odour of cannabis upon the opening of the door to the premises meant that there was reasonable cause to suspect sufficient for s67 of the Summary Offences Act 1953. This in turn meant that the subsequent execution of the search warrant, the entry on and the search of the premises in those circumstances was a valid exercise of power by Detective Sergeant Santucci.
Subject to the specific orders that I have made about the statements of Ms Diane Kazani, I would for all of these reasons dismiss the applications of the defendants