R v DURHAM (NO. 1) - [2025] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DURHAM (NO. 1)
Criminal Trial by Judge Alone
[2025] SADC 71
Reasons for Ruling of his Honour Judge Soulio
24 January 2025
CRIMINAL LAW
Accused charged on Information of 9 September 2022 with three counts of trafficking in a controlled drug, namely cannabis, 1,4-Butanediol, and methylamphetamine, one count of trafficking in a commercial quantity of 1,4-Butanediol, and two counts of money laundering.
Accused brought an application pursuant to Rule 39 JCR 2022 seeking an order that evidence of three police searches be excluded.
Held - Application dismissed.
Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 138; Joint Criminal Rules 2022 (SA) r 39, referred to.
State of New South Wales v James John Corbett & Anor [2007] HCA 32; Smethurst v Commissioner of Police [2020] HCA 14; George v Rockett [1990] HCA 26; Majzoub v Kepreokis & Ors (2009) 195 A Crim R 63; Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, considered.

R v DURHAM (NO. 1)
[2025] SADC 71
Introduction

The accused is charged on Information of 9 September 2022 with a number of drug offences and money laundering offences. He is charged with trafficking in cannabis at Beverley on 22 June 2021, a charge arising out of what I will call the first search, the storage unit search; a charge of trafficking in methylamphetamine on the same date at Findon, arising out of what I will call the second search, the granny flat search; and a series of charges said to have been committed on 29 September 2021 at Ottoway including trafficking in methylamphetamine, trafficking in a commercial quantity of 1,4-Butanediol, and two counts of money laundering, charges arising out of what I will call the third search, the Ottoway house search.
The Alleged Offending
The circumstances of the offending, briefly stated, are that just before 7.00 pm on 22 July 2021 police attended to execute a Controlled Substances Act search warrant, entering a storage unit within a storage facility at Beverley. That storage unit is said to have been leased by the accused.
There police found, amongst other things, a quantity of cannabis totalling just under 450 gm, which given the indicia of sale, is said to constitute the first count.
Thereafter at about 9.30 pm on 22 July 2021 police attended an address in Findon said to be the accused's home address, where police entered the premises under the authority of a general search warrant issued to one Detective Leaker. There police found, amongst other things, just under 60 gm of mixed weight material containing methylamphetamine, together with indicia of sale, said to constitute Count 2.
Quite separately, on 29 September 2021, exercising a general search warrant held by one Detective Winterfield, police searched an address at Ottoway, which address is said to have been associated with the accused, and there found a number of items including quantities of cash, which relate to the money laundering charges, a quantity of 1,4-Butanediol, and quantities of methylamphetamine constituting the trafficking in a commercial quantity, and trafficking, charges respectively.
Application to Exclude Evidence Resulting from the searches
The accused challenges the legality of the searches on the basis set out in his Rule 39 application of 28 September 2023.
In respect of the first search there was no challenge to the issuing of the Controlled Substances Act warrant. Rather the accused says that, on the face of the warrant, the search was unlawful as the warrant did not specify an offence.
Mr Aitken, who appeared for the accused, mounted an argument based, amongst other things, on State of New South Wales v Corbett[1] where Kirby J observed that:
… From its earliest days, this Court [that is the High Court] has insisted on a rule of strictness in expressing the law governing search warrants. It has done so, despite a recognition that, as Brennan J observed in Halliday v Nevill:
There is … a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement.
[1] State of New South Wales v James John Corbett & Anor [2007] HCA 32 p 5.
Kirby J went on to say:
In intermediate courts, opinions are sometimes expressed reflecting a perceived need to moderate to the rule of strictness. This has followed the inconvenience that the application of the rule can sometimes occasion and a sympathy for those who seek and execute search warrants (generally police officers) who are accountable in law for defaults when the rule of strictness is rigorously applied.
…
Notwithstanding such differences, intermediate courts in Australia have normally adhered to the rule of strictness. They have correctly interpreted that to be their duty of care, conforming to the unanimous reasons of seven Justices of this Court in George v Rockett. (citations omitted)
More recently in Smethurst v The Commissioner of Police the plurality of the High Court held that:[2]
The requirement that the offence to which a warrant relates be stated in the warrant has its origins in the common law's refusal to countenance the issue of general warrants and its strictly confining any exception to the principle that a person's home is inviolable. General warrants, as their name implies, contain no specification of the object of the search and purport to confer a free‑ranging power of search. They were described in Wilkes v Wood as a discretionary power given to messengers to search "wherever their suspicions may chance to fall" and as "totally subversive of the liberty of the subject". They were infamously used for the purposes of controlling the writing and printing of seditious and radical political works.
The power to search has always been regarded as an exceptional power, to be exercised only under certain justifying conditions. One essential condition, found in statutes authorising the issue of warrants for search and seizure, both Commonwealth and State and Territory, is that the object of the search be specified by reference to a particular offence.
[2] Smethurst v Commissioner of Police [2020] HCA 14 at [22].
In George v Rockett,[3] the court observed that in prescribing conditions governing the issue of search warrants the legislature has sought to balance the need for an effective criminal justice system, against the need to protect the individual from arbitrary invasion of their privacy. A person's interest in privacy is recognised in all modern bills of rights and it has achieved a status in international human rights law.
[3] George v Rockett [1990] HCA 26.
The court there said:
It may be accepted that the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes. Nevertheless it remains a concern of the legislature, in enacting provisions authorising warrants for search and seizure, to provide a measure of protection to persons affected by a warrant. It does so in large part by ensuring that the object of the warrant is identified by reference to a particular offence and that the limits of the authority to search may thereby be discerned. The courts' insistence on strict compliance with the statutory conditions for a warrant gives effect to this legislative purpose.
It may be readily envisaged that a search of a very different nature might ensue, for example, where the offence is one of possession for sale of paper sheets impregnated with LSD, as opposed to the search that might ensue where the offence is that of manufacturing methylamphetamine.
Counsel for the accused also relied on the decision of Hall J in Majzoub v Kepreokis & Ors.[4] There, Hall J said:
Where a section in a criminal statute provides for the commission of a somewhat indeterminate number of offences, the mere reference in a warrant to the section may be held to one which fails to describe the particular offences in relation to which the seizure is authorised, [and referred to Australian Broadcasting Corporation and Masters v Cloran].
[4] Majzoub v Kepreokis & Ors (2009) 195 A Crim R 63.
Hall J went on to describe the recital in that warrant and said:
However, the operative part of the warrant was silent as to the particular offence and did not refer to the description given in the recital. The warrant, accordingly, was held to be bad for failing to describe the particular offences.
Consideration
As I have observed, the warrant in the present case simply referred to “an offence under the Controlled Substances Act” (‘the Act’). On the face of it counsel's submission is attractive. However, I consider that I am bound by the decision of the Court of Criminal Appeal in Question of Law Reserved on Acquittal (No.5 of 1999).[5]
[5] Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356.
There, the court was considering a similar argument in respect of a Controlled Substances Act warrant expressed in relevantly identical terms to the warrant relied upon for the first search here. The Act was expressed in similar terms as it is today.
In Question of Law Reserved on Acquittal the court held that the issuing officer was not required by the statute to identify any particular offence. The court said:[6]
The authority conferred by s 52 is to enter and search premises. The specific nature of the suspected criminal activity under the Act may not be known when the warrant is sought. The issuing officer will not be required to take his or her scrutiny to the point of being suspicious of any specific identified offence. Police will be accustomed to following up intelligence reports as to illegal activity without having any exact appreciation of the precise nature of the suspected offending in the early stages. The language of s 52 contemplates that a warrant may be issued without the need to particularise an offence under the Act.
[6] Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356 at [140] per Mullighan J.
Having accepted, as I do, that I am bound by that decision, I consider that whatever may be the merits of an argument to the contrary, the application to exclude the evidence of the first search on the basis of a flaw on the face of the warrant must fail. I dismiss that part of the application.
The argument in relation to the second search is that it relies, in part at least, on the information resulting from the first search. The second search, as I have said, was a search conducted by Detective Leaker under the power of his general search warrant. I have regard to the reasons expressed in his record as to the use of his general search warrant.[7] The information available to him, including the information as to the presence of drugs and indicia of sale resulting from the first search, must have formed a reasonable suspicion for conducting the second search.
[7] Exhibit VDP12.
I pause to observe that may be so even if the first search was unlawful, given that Detective Leaker was proceeding in relation to information which he understood at the time was valid information, and may well have formed a legitimate basis for the formation of a reasonable suspicion. However, given my findings as to the lawfulness of the first search I do not need to decide that aspect.
In relation to the third search, I have had regard to the submissions of counsel and the evidence, both by way of documents received into evidence, and the evidence on oath and under cross-examination, from Detective Winterfield.
I bear in mind the test as to what constitutes reasonable suspicion. I accept Detective Winterfield as a witness of truth. He made appropriate concessions during the course of his cross-examination, and was unshaken as to the basis of his formation of a reasonable suspicion.
Whilst his record of use of a general search warrant[8] was expressed in relatively brief terms, I accept that the elucidation of his reasons contained in the subsequent affidavit were an appropriate and legitimate expansion of the basis for his formation of a reasonable suspicion, and that the factors he outlined, including the Crime Stopper's report, did in fact constitute a reasonable suspicion justifying the third search.
[8] Exhibit VDP2.
In making that finding I bear in mind that, although the Crime Stopper's report was an anonymous report, as Detective Winterfield said, another aspect of assessing the legitimacy of such information includes the detail relating to the subject matter of the report. It is apparent on the face of it that the Crime Stopper's report contained a number of details which suggested an esoteric knowledge of the alleged activities of the accused.
Accordingly, having dismissed the application insofar as it related to the first and second searches, I also dismiss the application in relation to the third search.