R v Davis
[2015] SADC 42
•19 March 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v DAVIS
[2015] SADC 42
Reasons for Ruling of Her Honour Judge Davey
19 March 2015
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
The accused applied to exclude evidence of a search of premises pursuant to a General Search Warrant.
Held: Application dismissed.
Controlled Substances Act 1984 ; Summary Offences Act 1953 s 67, referred to.
R v Rogers (2011) 109 SASR 307; R v Willingham (No 2) [2012] SASCFC 104; Bain v Police (2011) 112 SASR 10, considered.
R v DAVIS
[2015] SADC 42
William Carl Davis was charged with Possessing a Firearm without a Licence and Failing to Store Ammunition. Before a jury was empanelled I heard an application for an order to not permit the prosecution to lead certain evidence. I dismissed the application and admitted the evidence. These are the reasons for that decision.
The accused applied for an order that the prosecution not be permitted to lead evidence of the items seized as a result of a police search of premises at Unit 4/2 Russell Terrace Edwardstown on 16 December 2012. The grounds relied upon in support of the application were that the police did not have reasonable cause to exercise the powers of search pursuant to the General Search Warrant and that the evidence should be excluded in the exercise of the court’s discretion.
At about 7.00 pm on Sunday 16 December 2012 the police attended at Unit 4/2 Russell Terrace Edwardstown. No one was present within the unit when the police arrived. The police conducted a search of the unit pursuant to the authority of a General Search Warrant held by Detective Brevet Sergeant Naomi Maidment. The police located two working firearms and a quantity of live ammunition capable of being used in those weapons. One weapon was a Winchester .22 calibre pump action rifle which was loaded with five bullets and was concealed under a cushion on the couch in the lounge area. The accused pleaded guilty to an offence in relation to possession of this firearm. Nine .22 calibre bullets were found in the kitchen and those bullets could be used in the pump action rifle found under the cushion. The second firearm was a Winchester sawn-off shotgun and ammunition which was located inside a blue cooler bag in the roof space of the unit. Entry to the roof space was effected by a manhole accessible from the unit. Within the cooler bag were 13 live shotgun shells suitable for use in the shotgun. A black ammunition belt was also found in that same cooler bag. The trial was in respect of the firearm in the roof space.
The prosecution alleged that as at the date of the police search the accused was a tenant of the unit and had been since 9 July 2012. When the accused was subsequently arrested on 11 January 2013, he told police that his home address was Unit 4/2 Russell Terrace Edwardstown. Six days prior to the police search, a rental inspection was conducted by a property manager and the accused was present. Paperwork within the unit also bore the accused’s name including a receipt dated 8 December 2012.
Section 67(4) of the Summary Offences Act, 1953 sets out the powers conferred by a General Search Warrant issued pursuant to the Summary Offences Act. That provision provides:
67—General search warrants
…
(4) The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)the officer may seize any such goods or things to be dealt with according to law.
The term ‘reasonable cause to suspect’ has a similar meaning to the term ‘reasonable suspicion’ within the Controlled Substances Act, 1984 (CSA). The meaning of the words ‘reasonable suspicion’ was discussed by Duggan J in R v Rogers.[1]His Honour said:[2]
[1] (2011) 109 SASR 307.
[2] Ibid at [18]-[22].
18.In George v Rockett, the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”
The court went on to draw a distinction between suspicion and belief:
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
19.The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor. His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:
According to the plain meaning of the words there is therefore a clear distinction between things that are “suspected” of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
20.McHugh J also quoted from the judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield where their Honours said:
Suspicion lives in the consciousness of uncertainty.
21.It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer. As Jacobs J observed in Manley v Tucs:
Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
22.The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
(citations omitted)
In R v Willingham (No 2)[3] the court discussed the general approach to be taken where the issue to be determined is whether a police officer’s suspicion was reasonable. The court (Gray, Sulan and Stanley JJ) said:[4]
10.The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
[3] [2012] SASCFC 104.
[4] Ibid at [10].
In Bain v Police,[5] after referring to R v Rogers, White J said:[6]
28.… It is sufficient to note that some factual basis for the suspicion must be shown; that a suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, and accordingly that the facts which can give rise to a reasonable suspicion may be insufficient to give rise to an actual belief. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment.
29.The suspicion in a given case may be based upon a police officer’s observations together with what the police officer has learnt from other sources. The requirement of reasonableness may require police officers to assess the reliability of any information provided to them.
(citations omitted)
[5] (2011) 112 SASR 10.
[6] Ibid at [28]-[29].
In respect of the application, defence counsel sought a voir dire hearing; there was no opposition and I agreed to that application. The prosecution called Detective Maidment and tendered a number of declarations prepared by Detective Maidment. The declarations included annexures referred to by Detective Maidment relevant to her investigation and the foundation for her suspicion. Detective Maidment confirmed that at the time of the search she was a holder of a general search warrant.
On 26 November 2012 Detective Maidment was made aware of an Intelligence Report which had been received at the Crime Gangs Task Force (where she was stationed at the time). The relevant Intelligence Report was produced to the court.[7] The Intelligence Report referred to a person, DJ,[8] as an affiliate of the Hells Angels North Crew and who was currently dealing in ‘large quantities of ice in conjunction with a male known only as ‘P’[9] and another male known only as ‘Billy’. Further information was given about DJ and P in the body of the Intelligence Report. The task for Detective Maidment was to ascertain the identity of and investigate the person referred to as ‘Billy’.
[7] Appendix A referred to in the declaration of Naomi Elizabeth Maidment dated 11 July 2014.
[8] I have used initials.
[9] Also named in the intelligence report but I have used initial.
Detective Maidment gave evidence that she conducted enquiries as to known associates of DJ and P who had the name ‘Billy’ or ‘William’ and she produced two police ancillary reports, annexed to her declaration, showing instances of a connection between the accused and one or other of the named persons.
One name used by the accused was William Carl Goldner. He was shown to be an associate of DJ and P. Detective Maidment made enquiries about the identity of the accused (who was previously unknown to her) and obtained an arrest photograph of him. A subsequent search on Facebook revealed a photograph of the accused wearing a top with the words ‘North Crew’ (a reference to a group of Hells Angels) emblazoned across it, together with DJ who had his arm around the accused. That photograph had been uploaded to Facebook under a false name and dated 19 August 2012.
During her evidence Detective Maidment acknowledged that her enquiries pertaining to the accused were based on the assumption that ‘Billy’ was a derivative or nickname of the name ‘William’. Detective Maidment also said that at about December 2012 there were about 40 persons classified as members, prospects or supporters of the Hells Angels North Crew and that she was unaware of any other persons within that group who had a Christian name of William or Billy. Detective Maidment generally described the nature of the Hells Angels outlaw motorcycle gang, the gangs then operating in Adelaide and in South Australia and her belief as to the nature of their activities.
After making the enquiries about the accused and his links to DJ and P, Detective Maidment made enquiries about the whereabouts of the accused and in particular his home address. Those enquiries revealed the address at Unit 4/2 Russell Terrace, Edwardstown.
On or about 29 November 2012, Detective Maidment became aware that police officers had searched the home address of P and that at that address the police had located suspected drugs and $7,540 in cash. Once Detective Maidment became aware of the defendant’s home address, the arrangements for the search of his home were made. Detective Maidment asserted that at the time when she attended at that premises she had a reasonable cause to suspect that the accused was involved in the trafficking of controlled drugs.
Having heard and considered the evidence of Detective Maidment I found her to be an excellent, honest witness. I have no doubt that she genuinely suspected that the accused was engaged in the trafficking of controlled drugs and for the reasons that she described. There was no serious challenge to the integrity of Detective Maidment nor the genuineness of her belief.
It was strongly submitted that Detective Maidment’s suspicion was unreasonable. It was argued that the intelligence report provided to Detective Maidment did not specify that ‘Billy’ was affiliated to the Hells Angels North Crew and that, in effect, it was unreasonable to assume that the ‘Billy’ therein referred was so affiliated. I do not agree. That the person ‘Billy’ named in the Intelligence Report was likely to be associated with the Hells Angels North Crew was a reasonable assumption given that organisation’s involvement in drug trafficking and JH’s alleged affiliation with the Hells Angels North Crew. In my view, in light of all of the circumstances, Detective Maidment’s suspicions were reasonable and she had a proper basis to invoke the powers given to her pursuant to the general search warrant.
When Detective Maidment and the other police officers arrived at the unit, they knocked at the front door and when no-one answered, they went around to the rear of the unit where entry was effected via a kitchen window. The location of the kitchen window is apparent from the photographs tendered to me.
When she looked through the kitchen window, Detective Maidment saw a number of plastic containers consistent with those used for the distribution and sale of methylamphetamine; they were visible in an open drawer and a cupboard above the stove. Detective Maidment said that the cupboard doors above the stove were closed but that she could see the containers in the drawer and also scales on the kitchen bench. The observations made at that stage by Detective Maidment in all likelihood afforded proper grounds for entry and search pursuant to the provisions of the CSA. During her evidence, Detective Maidment made it plain that she had already determined to enter the premises at that stage and that she did not rely on the powers under the CSA. In my view, this evidence enhanced Detective Maidment’s credibility. In the event that I found that Detective Maidment had not formed the requisite state of mind required to invoke the general search warrant, then this matter would have been relevant to the exercise of my discretion.
The accused did not give or call evidence on the voir dire.
Having regard to the evidence and declarations of Detective Maidment together with the relevant exhibits, I found that at the date of the search Detective Brevet Sergeant Maidment suspected that the accused was involved in the trafficking of illicit drugs and that her suspicion was reasonable. Accordingly, I dismissed the application and ruled that the evidence may be led by the prosecution.
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