R v Glazbrook & Heyes No. DCCRM-98-550 Judgment No. D58

[1999] SADC 58

R v GARY BRUCE GLAZBROOK and CHRISTOPHER MARK HEYES
[1999] SADC 58

Judge Lunn
Criminal

VOIR DIRE RULINGS

Background

1. As a result of attending late in the afternoon on Wednesday, 18 February 1998 at a bushfire in scrub land about 20 kilometres from Warooka on York Peninsular police discovered a recently abandoned campsite at which there were 9,912 jiffy pots which contained moist soil.  In a few of the pots it was observed that seeds had germinated and small sprouts had appeared above the surface of the soil.  The police then suspected, but had no evidence, that the jiffy pots had been planted with cannabis seeds.  On the morning of Thursday, 19 February Senior Constable Drage, a crime scene examiner attached to the Kadina CIB, attended at the campsite.  He selected thirty six jiffy pots at random as a sample of the pots for the purpose of identifying whether cannabis had been planted in those pots.  In less than twelve of them were there any visible sprouts.

2. Detectives at the scene on 19 February appreciated that if they watered the jiffy pots they would be at risk of committing an offence of taking part in the production of cannabis contrary to Section 32 of the Controlled Substances Act 1984 (“the CSA”). However, on that day the thirty six pots were watered at the campsite by police. Later in the day Senior Constable Drage took the thirty six pots to the Kadina CIB office where he placed them in the exhibit room which was a locked room to which only he had access. Thereafter he watered the thirty six pots almost daily.

3. On about 20 February Detective Superintendent Edmonds, who was in charge of the Drug Task Force in Adelaide, was approached by Detective Foulis, a member of the Drug Squad, who had been liaising with detectives from the Kadina CIB about the matter. Detective Superintendent Edmonds telephoned Mr Draysey at the South Australian Health Commission and discussed obtaining a permit under s56 of the CSA for the purposes of allowing what was planted in the thirty six jiffy pots to grow. It was generally understood by the police involved that once any cannabis seeds had germinated it was impossible to identify whether the resultant plant was a cannabis plant until it was several centimetres high. In general terms Detective Superintendent Edmonds sought a permit from the Health Commission to authorise the police to water and care for the thirty six jiffy pots and to grow any cannabis plants in them until they reached a stage at which they could be positively identified as cannabis or not by a botanist. On that day he signed a written application to the Health Commission seeking such a permit. That application was considered by Mr Draysey and referred to his superior Mr McKellar who endorsed it on that day as approved. After Mr McKellar had approved it there was some communication to this effect back to the Police Department, although its precise terms were not established on the evidence. Mr Cooper of the Health Commission had the task of preparing a written permit. There was a draft prepared which contained five conditions which were ultimately approved by Mr McKellar. A written permit dated 2 March 1998 was issued by the Health Commission and sent to Detective Superintendent Edmonds shortly afterwards. The permit was in the following terms:

“PERMIT TO PRODUCE AND POSSESS POISONS AND PROHIBITED SUBSTANCES

DENNIS GEORGE EDMONDS

SOUTH AUSTRALIAN POLICE

30 FLINDERS STREET

ADELAIDE5000

is hereby permitted, in accordance with Section 56 of the Controlled Substances Act, to produce and be in possession of certain substances at the following address:

KADINA POLICE STATION 58 GRAVES RD, KADINA, 5554

and subject to the following conditions:

(1)... The substances approved to be produced or in the possession of the permit holder are plant specimens containing substances controlled by the Act;

(2)The substances shall be used only for research purposes;

(3)... Storage of the substances shall be in a locked room or safe to which access is restricted to;

GORDON LEONARD DRAGE  BRIAN SPENCER;

(4)... a register shall be kept as required by Regulations 47 to 54 inclusive and this permit shall be fixed in the front of such register;

(5)The permit holder shall notify the Commission of any proposed amendments to this permit:

THIS LICENCE WILL EXPIRE ON 30/9/98

Dated at Adelaide this  02/03/98

(Signed)

ISSUED BY THE SOUTH AUSTRALIAN HEALTH COMMISSION”

1. There was some evidence that on 20 February detectives at the campsite had thought it necessary to grow what was in the thirty six jiffy pots in order to establish whether it was cannabis but only if there was no evidence available that cannabis seeds could be found in the jiffy pots.  The balance of the jiffy pots had been taken to the Yorktown Police Station.  Constable Dummin there had been able to obtain fifty three seeds from fifty of the other jiffy pots selected at random and these seeds were delivered to Senior Constable Drage on 23 February.  The detectives in charge of the investigation, who did not give evidence on the voir dire, apparently changed their minds and decided that even though they had what could positively be identified as cannabis seeds from other jiffy pots they still wanted to ascertain whether what had been planted in the thirty six pots could be identified as cannabis.  That was not an unreasonable course to adopt.

2. Senior Constable Drage had no direct communications with the Health Commission or the Drug Task Force.  I accept that on about 20 February he was told by other Kadina CIB detectives that the necessary authority had been obtained from the Health Commission to grow any cannabis plants in the thirty six jiffy pots to a stage where they could be positively identified.  He himself did not verify whether what he had been told in general terms was correct or acquaint himself with the terms of the permit when it was received.  No register as envisaged by condition (4) to the permit was ever established or kept.

3. On 25 February Senior Constable Drage took the thirty six jiffy pots to Adelaide for examination by Mr Webber, a botanist.  Mr Webber reported that the seedlings were too small to be positively identified, but several had cannabis seed coatings present.  Senior Constable Drage then returned the thirty six jiffy pots to the exhibit room at Kadina where he continued to water them on most days.  On 5 March he went on holidays and Senior Sergeant Draper took over the watering duties.  Senior Constable Drage returned on 1 April.  By then plants had germinated in most of the pots, but many had died due to lack of light and/or over-watering.  On 8 April he again took the thirty six jiffy pots to Adelaide where they were examined by Mr Webber.  He identified four seedlings as having grown sufficiently to be identified as cannabis, but he could not identify the others apparently because they had died.  The thirty six pots were then returned to the Kadina exhibit room.  They were not further watered and the four living plants also died shortly afterwards.

The course of the proceedings

1. The two accused have been jointly charged with taking part in the production of cannabis.  The cases against each of them associating them with the jiffy pots found at the campsite are entirely circumstantial.  Each brought an application to have various voir dire orders made concerning the trial.  Paragraphs 1, 3, 6.1, 6.2 and 7 of the notice by Heyes were abandoned.  Although they were not all contained within his written application, orders were sought by Glazbrook in similar terms to the remaining applications of Heyes.  I now deal with each of the paragraphs of the voir dire applications which require determination.

Illegality point

1. By an amended notice lodged on the first morning of trial Heyes sought the exclusion of any identification of the plants in the thirty six jiffy pots as cannabis.  He contended that the police had acted illegally in growing those plants to the stage where they could be identified as cannabis and that their actions were not protected by the permit given by the Health Commission.

2. Apart from any immunity conferred on them by s56(2) of the CSA it is clear that both Senior Constable Drage and Senior Sergeant Spencer were guilty of offences under s32 of the CSA of taking part in the production of a prohibited substance by their actions in watering and tending to the thirty six cannabis plants in the jiffy pots. Other police officers involved in the matter may also well have committed ancillary offences.

3. Section 56 of the CSA provides:

   “(1)   The Health Commission may issue a permit authorising, subject to such conditions as may be specified in the permit, the person named in the permit to manufacture, produce, sell, supply or have in his possession a poison, prohibited substance, therapeutic substance or therapeutic device for the purposes of research, instruction or training.

   (2)    Notwithstanding any other provision of this Act, the holder of a permit issued under this section shall not be guilty of an offence against this Act in respect of anything done by him pursuant to and in accordance with the permit.”

4. The accused contended that what the police did was not “research”, and therefore could not be either within the protection granted by s56 or within the terms of the permit. There is no definition or judicial exposition of “research”. No assistance in its interpretation can be obtained from Hansard.

5. The Macquarie Dictionary defines “research” to mean “diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.” The actions here of the police were an enquiry or investigation in order to discover a fact, namely whether whatever had been planted in the jiffy pots was cannabis or not. The crux of the issue is whether what the police did can be categorised as “diligent and systematic” so as to satisfy the other part of the definition. Not every enquiry or investigation into a subject in order to discover facts would so qualify as research. However, the term “research” in the Act is not confined to either scientific or formal “research”. Although it is not clear cut, I consider that in the context of what was here sought to be discovered what the police did can be properly categorised as an “diligent and systematic enquiry or investigation.” They had a thesis which they wished to test to see if it was valid or not. The test was to facilitate the continuation of the growing process of whatever had been planted in the jiffy pots until it reached a stage where there was sufficient development so that a botanist could ascertain if the identifying characteristics of cannabis plants were present. However, the research project as a whole included the involvement of the botanist. Merely to have grown the plants without submitting them for botanical examination would not have been research because it could not have discovered any relevant fact about them. Accordingly, I find that the permit was validly issued under s56 of the Act for the purposes of research. There is nothing in the context or the purpose of the CSA which is inconsistent with this conclusion. I need not go into the question of whether s56(2) could confer protection if the Commission had acted ultra vires in granting the permit.

6. The written permit on its face only took effect from when it was signed and issued on 2 March 1998. It did not purport to have any retrospective operation. (I need not go into the question of whether it is possible in law for it to have had a retrospective operation if it had purported to do so.) The approval endorsed by Mr McKellar on the application form on 20 February 1998 did not in itself grant any permit under s56. It merely indicated that a permit would be issued. The five conditions were not formulated and finalised until some days after 20 February. It could not be that an oral permit, if that is allowable under the Act, could have operated from 20 February without conditions and then have been replaced on 2 March by another different permit which was subject to conditions. Accordingly, s56(2) of the CSA could not protect Senior Constable Drage and other police from liability for offences committed prior to 2 March 1998.

7. Section 56(2) only confers protection “in respect of anything done .... pursuant to and in accordance with the permit.” The failure to set up and keep the register required by condition (4) meant that in growing the plants Senior Constable Drage and Senior Sergeant Spencer were not acting in accordance with the permit in a significant way. The taking of the thirty six pots to Adelaide on 8 April was also a significant breach of condition (3). Accordingly, s56(2) does not confer protection in respect of what was done by the police which was otherwise in breach of the CSA after 2 March 1998.

8. Furthermore, s56(2) only confers protection on the holder of the permit. That was Detective Superintendent Edmonds. Neither Senior Constable Drage nor Senior Sergeant Spencer were the holders of the permit. On its face they merely had a right of access to the prohibited substance under condition (3). I need not determine whether s56(2) could confer protection on persons acting under the immediate control and supervision of the holder of the permit. Here there is no evidence that Detective Superintendent Edmonds as the head of the Drug Task Force had any authority or control over Senior Constable Drage or Senior Sergeant Spencer who were members of the Kadina CIB.

9. The illegal actions of the police in growing the cannabis plants in the thirty six jiffy pots gives rise to a discretion in the Court to exclude the evidence of the identification of those plants as a matter of public policy: Ridgeway v R (1995) 184 CLR 19. In exercising this discretion the Court must look to whether the public interest is best served by the admission of the evidence notwithstanding that it was obtained by unlawful conduct of the police and the onus is on the prosecution to show that the discretion should not be exercised against it: R v Salem (1997) 96 A Crim R 421; R v Haughbro (1997) 135 ACTR 15 particularly at 28. The offence charged, if proved, is a very serious one as it involves an apparently commercial crop of potentially many thousands of cannabis plants. It is undoubtedly in the public interest that anyone found guilty of being involved in the production of such a large crop should be brought to justice. The police officers at least took some steps to make their actions in growing the plants legitimate, although they were not as careful or thorough in this as they should have been. Neither Senior Constable Drage nor Senior Sergeant Draper consciously believed that they were acting illegally in growing the thirty six plants. The public would not be morally outraged at the actions of the police in so growing the plants, and indeed would probably think that there was a good deal of commonsense in enabling the plants to grow a few centimetres so that they could be identified as cannabis or not. Hence I am persuaded that in spite of the unlawful activities of the police the evidence should not be excluded in the circumstances on public policy grounds.

Evidence relating to Curtis

1. Shortly after the bush fire a car was observed in the vicinity of the campsite which was registered in the name of Ian Curtis.  In the possessions of the accused Glazbrook was found a business card bearing the name of Ian Curtis and a diary which contained his name and address.  Curtis is the brother-in-law of the accused Heyes.  The prosecution is not adducing any other evidence about Curtis or his association with either accused or with the campsite.

2. It is likely that a number of persons were involved in the production of the crop in question.  The prosecution cases to prove that each accused was a person involved in the production of the crop are entirely circumstantial.  There are a number of other strands of circumstantial evidence which might link each accused with the crop which do not involve Curtis.  In respect of each accused the prosecution seeks to put forward an additional strand of circumstantial evidence based on the evidence relating to that accused’s other possible association with Curtis.  While in each case it is a fairly weak and tenuous strand of circumstantial evidence, it might be significant in the eyes of the jury in deciding what has been proved insofar as they accept it in combination with the other strands of circumstantial evidence in relation to each accused.  While careful directions will need to be given to the jury about the limited use which they can make of such evidence concerning Curtis, it may have significant probative value depending on their views of the other strands of circumstantial evidence.  In whether Heyes is shown to have any connection with the campsite it is probative that a car registered in the name of his brother-in-law, and thus a person with whom he may have some association, was seen in the vicinity of the campsite.  I was referred to what was said by Cox J in R v Romeo (1982) 30 SASR 243 at 260-1 about showing links through family relationships, but there the link to the accused was far more tenuous than here and is distinguishable from the situation here. In the case against Glazbrook and any connection of him with the campsite it is probative that a car seen in the vicinity was registered in a name which appears in documents in his possession. I do not consider that the probative value of this evidence is so low and its prejudicial effect sufficiently great that it should be excluded in fairness to each accused.

Evidence about the gas cylinder

1. At the campsite the police found a gas cylinder on which was written the name “Hayes”.  There is no other evidence to associate this gas cylinder with the accused Heyes.  The prosecution contend that the jury may view the name “Hayes” as a misspelling of “Heyes”.  This is a reasonable possibility.  Thus the existence of the name on the gas cylinder can be a strand of circumstantial evidence, albeit a tenuous and weak one, which may insofar as it is accepted by the jury have a combined effect with other circumstantial evidence to prove that the accused Heyes was a person involved in the production of the crop.  I do not find that its probative weight is so low and its prejudicial effect so great that it should be excluded in fairness to the accused Heyes.

2. Accordingly, all the voir dire applications are dismissed.