R v GALGEY - [2010] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALGEY
[2010] SASC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice David)
26 February 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
Appellant found guilty by verdict of a jury of one count of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) - and appeals on two grounds: (1) that the trial judge erred in failing to exclude as evidence before the jury the search of the premises and the material located as a result of this search on the basis that the search was unlawful; and (2) that the trial judge erred in refusing to exercise his discretion to exclude evidence of all conversations between the appellant and the police – whether the trial judge erred when exercising his discretion not to exclude this evidence.
Held: the trial judge did not err when exercising his discretion not to exclude the evidence – appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e); Summary Offences Act 1953 (SA) s 67, s 79A, referred to.

R v GALGEY
[2010] SASC 35
Court of Criminal Appeal: Gray, Layton and David JJ
GRAY J.

I would dismiss this appeal. I do not wish to add to the reasons of David J.
LAYTON J. I would dismiss the appeal for the reasons given by David J.
DAVID J. The appellant was found guilty by verdict of a jury of one count of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA). The particulars of the offence for which she was convicted were that on 4 January 2007, at premises at Magill, she knowingly had methylamphetamine, a drug of dependence, in her possession for the purposes of selling it to another person.
The appellant appeals on two grounds, one for which she has been granted permission, and another for which she now seeks permission. The arguments on appeal focus on the judge’s decisions after a hearing on the voir dire:
·to allow evidence of the search of the premises occupied by the appellant, in which incriminating evidence was found; and
·to allow evidence of a conversation between the appellant and an arresting police officer, in which the appellant admitted possession of the drugs which were the basis of the charge.
Background facts
On the morning of 4 January 2007, two uniformed police officers (Constables Townsend and Morgan) attended at premises immediately adjacent to the home of the appellant. They were advised that the property was damaged and that a door had been stolen and might be at the adjacent premises; namely, the premises of the appellant. As a result of receiving that information, both police officers looked over the fence into the rear yard of the appellant’s home and saw a door. They then went to the front door of the appellant’s house, which was opened by a young male (Christopher Eden). He then got the appellant whilst the police waited just inside the front door. Neither police officer had a search warrant.
The appellant came to the front of the house and allowed the police to go through the house to the rear of the property, where they saw the door that they had previously seen from the adjacent property, and also a number of cannabis plants.
As a result of seeing the cannabis plants, Constable Townsend called plain clothes police officers from Operation Mantle, who were responsible for investigating drug offences. No other search of the house was conducted.
The police officers from Operation Mantle arrived, and one of them (Constable Smith) had a general search warrant. That search warrant was used as an authority to search the premises, and Constable Smith had been made aware of the fact that possible stolen property was seen on the premises, as were six cannabis plants. The premises were then searched, and the methylamphetamine – which is the subject of the charge – was found in a black handbag in a bedroom. The appellant was then interviewed and admitted that the handbag containing the illegal drugs belonged to her, but said that she had found the methylamphetamine the day before when she was out.
Before the trial commenced, the trial judge conducted a voir dire hearing in relation to the legality of the search. It was argued before the trial judge that the search was illegal, and the judge deemed it necessary to hear certain evidence on the voir dire to decide that issue.
The voir dire hearing
It was argued by the appellant on the voir dire that the search by the police was illegal and, therefore, the drugs which were the subject of the charge were discovered as a result of that illegal search, and should not have been led in evidence. The first basis of the challenge to the legality of the search was that police officers Townsend and Morgan did not have a search warrant, and entered the premises without permission. It was argued that they had entered initially, whilst waiting for Mr Eden to go and get the appellant, but also it was further argued, on the basis of the evidence of both the appellant and Mr Eden on the voir dire, that the police pretended that they had a search warrant and that is what they told Mr Eden. Both the appellant and Mr Eden gave evidence to that effect on the voir dire.
The trial judge did not accept the evidence of the appellant and Mr Eden to the effect that the police had told Mr Eden that they had a search warrant. He further found that, when Constables Townsend and Morgan went to the front door, the door was opened by Mr Eden and the two police officers waited inside the doorway with the implied consent of Mr Eden, who went to get the appellant. He also found that the appellant then invited the police to go through to the back of the house and “have a look”. As a result, he found that the search was legal.
The trial judge made it clear that if he had found, as a matter of fact, that the police had pretended that they had a search warrant in order to gain entry, as suggested by the appellant on the voir dire, the evidence following on from that search might well have been excluded. However, he found to the contrary.
It was also established on the voir dire that after Constables Townsend and Morgan discovered the six cannabis plants and the wooden door as a result of their observations, they asked the appellant and Mr Eden to move to the front of the premises to await the attendance of the plain clothes officers from Operation Mantle; namely, Constables Ruckert, Smith and Newton. The trial judge found that, during that period of time, the appellant was, in fact, under de facto arrest, even though Constable Townsend was ignorant of that fact. He found that, at that stage, her rights should have been administered to her by the police, pursuant to s 79A of the Summary Offences Act 1953 (SA) (“the Act”).
Grounds of appeal
Ground 1
The learned trial judge erred in failing to exclude as evidence before the jury the search of the premises and the material located as a result of this search on the basis that the search was unlawful.
This ground was argued with permission. The first argument presented by the appellant is that the trial judge erred in accepting the evidence of Constable Townsend (Constable Morgan was not called on the voir dire), in preference to the evidence of the appellant and Mr Eden, on the topic of whether the police pretended to have had a search warrant. The appellant now argues that there was no basis for such a finding. In particular, the appellant argues that not enough weight was given to a major inconsistency between what Constable Townsend said in evidence-in-chief and what he said when cross-examined. That is, in evidence‑in‑chief, Constable Townsend said that the appellant answered the door but, when cross‑examined, he agreed that the door had been originally opened by Mr Eden, and Mr Eden went to get the appellant whilst the police waited just inside the door. The appellant now argues that this inconsistency was ignored by the trial judge when accepting the evidence of Constable Townsend.
The trial judge provided reasons for his decision on the voir dire, and appended to those reasons was a document headed “Conclusions Regarding the Witnesses”. In that document he said:
I was impressed by Constable Townsend’s candour which manifested itself to me after a searching cross-examination. The Constable agreed that, in fact, the front door had been opened “by this other young fellow” and they were “standing in the doorway” and later “inside the premises” with permission. I accepted Constable Townsend as being truthful when he denied saying, at the accused’s premises, that he had a warrant to search the premises in circumstances in which he did not have one. He said (truthfully, I thought): “I never would have said that I had a warrant to search the premises … never.”
Constable Townsend frankly acknowledge [sic] an error on his part, in his witness statement, but that was, in my judgment, insufficient to make his sworn evidence unreliable.
I was not persuaded that Constable Townsend’s witness statement constituted, as was the defence submission, a deliberate lie “made with a consciousness that he had to cover his tracks as to the way he entered the premises.”
When dealing with the evidence of the appellant and Mr Eden, the trial judge, in his reasons, noted:
I did not believe the accused when she said that, in the past, the “last couple of times I’ve had police come in, they have just walked in.” I simply did not believe the accused when she said, in examination in chief, that the first indication she had, on the morning of 4^th January 2007, of the police being at her premises was hearing “the bashing on the door” and Christopher Eden yelling out to her: “Helen, the police are here and they’ve got a warrant.
[Emphasis in original.]
In my view, it is clear that with the advantage of observing the witnesses, the trial judge has taken into account the inconsistency of the evidence complained about, and there is no basis for disturbing his finding of fact.
It is also to be noted that the drugs which were found were found as a result of the search when the officers from Operation Mantle arrived. They were in possession of a search warrant pursuant to s 67 of the Act. Even if there were some form of illegality at the initial stages, that would have certainly been cured by the further search pursuant to the search warrant.
I would dismiss that ground of appeal.
Ground 2 – Amended ground
The learned trial judge erred in refusing to exercise his discretion to exclude evidence of all conversations between the appellant and the police.
This is a new ground of appeal for which permission is required. It was decided before this Court that the argument, nevertheless, should be heard in full.
The specific conversation which is complained about follows a sequence of events which I set out:
1.Constable Townsend, after being let into the house by Mr Eden, speaks briefly to the appellant. There are no admissions made.
2.Constable Townsend then finds the cannabis plants and the door at the rear of the property. There is no interview or admission at that stage.
3.Constable Townsend then remains outside of the house with the appellant and Mr Eden for about 40 minutes waiting for the officers from Operation Mantle to arrive. There is no interview or admission made at that point.
4.When the officers from Operation Mantle arrived, Constable Ruckert immediately cautions the appellant and remains outside of the house with her while the house is searched by other officers. That is a period of about two hours. There were no admissions made during this period of time.
5.Constable Ruckert then obtains a video camera. The appellant is then cautioned for a second time, on video. It is then that the handbag containing the drugs, which are the subject of the charge, is shown to her, and she admits that the handbag is hers, with the explanation that she found the drugs the day before.
6.Immediately after that admission, and still on video, she is formally arrested and given her rights pursuant to s 79A of the Act.
It is to be noted that the admission complained about was made after being cautioned twice, but before she had been given her rights, pursuant to s 79A of the Act.
The trial judge found that Constable Townsend failed to comply with s 79A of the Act, by not advising the appellant of her rights pursuant to s 79A of the Act, whilst she was waiting at the front of the house for the officers from Operation Mantle to arrive. However, the trial judge also found that there was no deliberate illegality, and that the appellant was under de facto arrest.
In considering his discretion whether or not to exclude the evidence, the trial judge ruled against exclusion because, although the appellant was not given her rights pursuant to s 79A she was, nevertheless, cautioned on two occasions before making admissions, and after she was given her 79A rights, she still made statements to the effect that she had found the drugs the previous day. I also note that, after being given her rights under s 79A, she was cautioned a third and a fourth time, after which she both volunteered information and repeated key admissions.
The appellant presents a further argument to this Court which was not presented to the trial judge; namely that even though a caution was given on a number of occasions before the admissions were made, once the drugs were found a more specific caution should have been given involving the finding of the methylamphetamine. In my view, having cautioned her twice, there was no reason for the police to give a more specific caution, as the original cautions were considered to be adequate.
In all the circumstances, I am of the view that the trial judge has not erred when exercising his discretion not to exclude the evidence. Important factors against exclusion were that the illegality was not deliberate, there were two cautions before the admissions were made and there was no suggestion of any question of unreliability.
I would refuse permission and dismiss that ground of appeal.
Conclusion
I would dismiss the appeal.