R v Golja - [2017] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GOLJA
[2017] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
5 June 2017
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY - REASONABLE GROUNDS
Appeal against conviction for one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).
In June 2014 a male was arrested following a complaint that he had been trying to break into a property occupied by his former partner. His van was searched. Amongst other indicia of drug activity, police found within the van quantities of methylamphetamine and MDMA, a class H firearm and $2,635 in cash. He was taken to a police station where an officer took part in an unrecorded conversation with the man regarding a potential bail address. Using Google Maps, he identified an address at which the appellant resided.
Thereafter that officer explained to another officer what had occurred and the potential bail address. The evidence of both officers as to this conversation was inconsistent. The second officer said that as a result of the information given by the first officer and information she had obtained from the SAPOL database concerning that address and the appellant, she formed a suspicion that evidence of drug trafficking may be located at that address. On that basis she executed a general search warrant to search the premises.
At issue was the lawfulness of the search. On the voir dire the appellant unsuccessfully sought the exclusion of evidence obtained as a result of the search of her residence at Parafield Gardens.
On appeal the appellant submitted that the judge erred in admitting evidence obtained as a result of the search on the basis that there had been no grounds to suspect, and that the judge had erred in failing to exercise the discretion to exclude the evidence obtained.
Held: Appeal dismissed.
1. It is implicit in the judge’s reasons that he accepted a genuine suspicion was held that a search of the appellant’s home might lead to the discovery of evidence of drug-related offending. There was no proper basis to interfere with that conclusion. That suspicion was objectively reasonable (at [28]).
2. In any event, the Court would have upheld the exercise of the judge’s discretion not to exclude evidence obtained as a result of the search (at [32]). It is significant that the judge found there was no conscious impropriety by the police. Neither could this be categorised as an instance of a widespread misunderstanding by the police of the conditions governing the exercise of the search power. This would have been a case of unlawful conduct resulting from a mistake (at [36]). It involved serious offending and there is a strong public interest in the detection and prosecution of such cases. Further, this offending would have been in the category of unlawfully procured evidence regarding offending which had already occurred, rather than in the category of offending which would not have occurred but for the unlawful conduct of the police (at [37]).
Controlled Substances Act 1984 (SA) s 32; Summary Offences Act 1953 (SA) s 41, s 67, s 74D, referred to.
Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 185 CLR 19; R v Colenso [2016] SASC 128; R v Nguyen (2013) 117 SASR 432; R v Rogers (2011) 109 SASR 307; Manley v Tucs (1984) 40 SASR 1; R v Rockford (2015) 122 SASR 391, considered.

R v GOLJA
[2017] SASCFC 61
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: I would dismiss the appeal. I would hold that the search was not unlawful for the reasons given by Stanley J. I prefer not to comment on how I would have exercised the discretion had the search been found to be unlawful because the result would critically depend on the nature of the illegality. For example if it had been established that Detective Walker had deliberately misled Detective Vance I would have excluded the evidence of the search.
The powers authorised by a warrant issued pursuant to s 67 of the Summary Offences Act 1953 (SA) are wide and intrusive. The conflicting testimony of the police officers in this case exposes how important it is that police officers exercising those powers make a record of the information they receive and the grounds on which the warrant was issued. It is a matter the Commissioner of Police may wish to consider.
STANLEY J.
Introduction
This is an appeal against conviction.
The appellant was found guilty after a trial by judge alone of one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA) and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA) (SOA). The controlled drug was methylamphetamine. The unlawful possession concerned cash totalling $23,370 which was reasonably suspected of having been obtained by unlawful means. The appellant was jointly charged with Adam Watts with having committed these offences on 17 June 2014 at Parafield Gardens. On the voir dire at her trial the appellant unsuccessfully sought the exclusion of evidence obtained as a result of a search of her residence at Parafield Gardens. At issue was the lawfulness of the search.
The appellant advances a single ground of appeal, namely, that the trial judge erred in admitting evidence obtained as a result of the search on the basis that the judge was wrong in finding police had reasonable grounds to suspect in order to search the premises and wrongfully failed to exercise the discretion to exclude the evidence obtained as a consequence of that unlawful search.
In order to understand the ground of appeal it is necessary to set out in some detail the factual background to the search and the evidence on the voir dire.
Factual background to the search
On 17 June 2014 police undertook a search of a house at Parafield Gardens which was the appellant’s residence. Earlier that day the co-accused, Watts, had been arrested by police at Manningham. That followed a complaint to police that Watts had been trying to break into a property at Manningham occupied by his partner. Following his arrest, Watts was conveyed to the Holden Hill police station. He was interviewed by Senior Constable Walker. A van belonging to Watts was left at the Manningham property. Later that day police officers returned to search the van for the purpose of investigating whether it contained any evidence of implements that may have been used in the attempted break in. During the search of the van police found quantities of methylamphetamine and MDMA, a class H firearm and $2,635 in cash. In addition police located other indicia of drug trafficking, including digital scales, resealable plastic bags, glass pipes and a tick list.
At the Holden Hill police station, Senior Constable Walker discussed the question of bail in an unrecorded conversation. Senior Constable Walker enquired whether there was an address to which Watts could be bailed. Watts nominated as a potential bail address the home of a friend he named as Bernadette where he had previously stayed. Watts indicated that he did not know the street name or number where Bernadette resided but he could locate it on a map. Senior Constable Walker used his telephone to permit Watts to navigate to the address using Google Maps. It was by the use of Google Maps that Watts was able to identify the precise address at which Bernadette resided. This was the appellant’s house at Parafield Gardens. Following this interview, Senior Constable Walker was advised by other officers of the result of the search of Watts’ van.
Subsequently Senior Constable Walker approached Detective Vance to explain what had occurred in relation to Watts. He informed Detective Vance of the items located in Watts’ van. There was a discussion about Watts and the address at Parafield Gardens. Each officer gave conflicting evidence on the voir dire concerning this discussion.
Following this discussion Detective Vance interrogated the SAPOL database for information in relation to the Parafield Gardens address. She said that as a result of the information conveyed to her by Senior Constable Walker and the information she had obtained from the SAPOL database concerning the Parafield Gardens address and the appellant, she formed a suspicion that evidence of drug trafficking may be located at the Parafield Gardens address. On that basis she exercised a general search warrant to search the Parafield Gardens premises.
At the appellant’s trial the prosecution sought to tender evidence obtained as a result of that search.
The voir dire
On the voir dire, the appellant contended that the search was unlawful on the basis that there was insufficient information available to Detective Vance to establish reasonable cause to suspect an offence had been committed.
Senior Constable Walker gave evidence that as a result of his interview with Watts he did not think that Watts currently resided at the Parafield Gardens address but had done so previously.
He gave evidence that he told Detective Vance that Watts had been arrested for attempted serious criminal trespass and assault which were alleged to have occurred at Manningham. He told Detective Vance he had discussed with Watts a proposed bail address and Watts had nominated an address at Parafield Gardens where he had stayed previously although he was not living there at this time.
Detective Vance gave evidence that she was told by Senior Constable Walker that Watts was residing at the Parafield Gardens address. It was not put to her in cross-examination that she had been told that Watts was not residing at the appellant’s house at that time. On the contrary, before the judge the appellant contended that Senior Constable Walker had deliberately misled Detective Vance by informing her that Watts was living at the appellant’s address at Parafield Gardens. Perplexingly, that was not put to Senior Constable Walker in cross-examination either.
Detective Vance gave evidence that, on the basis of the contents of the van, her belief that Watts was residing at the appellant’s address, that the address was a place of interest to police in relation to prior drug activity, and that Watts was a person involved with drugs a suspicion was created in her mind that evidence of offending may be located by a search of the Parafield Gardens premises.
The judge’s ruling on the voir dire
The trial judge admitted the evidence of the search of the appellant’s home at Parafield Gardens over the objection of the appellant.
The judge identified the factors Detective Vance had relied upon to found her suspicion, being:
(i)the fact that she had been told that Watts had been residing at the appellant’s Parafield Gardens address;
(ii)the contents of the search of the van belonging to Watts at Manningham;
(iii)the house at Parafield Gardens being itself a place of interest;
(iv)its occupant, the appellant, being a person of interest; and
(v)Watts being involved in drugs.
The judge held that Detective Vance was either mistaken about being told by Senior Constable Walker that Watts had been residing at the appellant’s home at Parafield Gardens as a result of misinterpreting what she was told, or Senior Constable Walker spoke “loosely” in conveying information concerning the address and, thereby, innocently misled her. The judge said:
Either way I am quite satisfied that there was no conscious impropriety in the provision of this information to Sergeant Vance. However, given that, in truth, Watts had only stayed there previously rather than being a current resident, if this were the only information, I would not have regarded it as sufficient to found a reasonable suspicion.
The judge, however, identified the further factors to which Detective Vance had regard in forming her suspicion. The judge said:
These factors, in combination with the provision of the bail address, are sufficient to constitute a reasonable cause to suspect. Accordingly, although the information upon which Sergeant Vance based her decision to search the properly [sic] is tainted in part by the same illegality, which surrounds the impugned bail conversation, I am satisfied for similar reasons, that the factors in favour of admitting the results of the search outweigh those in favour of its exclusion.
The reference to “the same illegality” is a reference to the judge’s finding that the interview between Watts and Senior Constable Walker at the Holden Hill Police Station was in breach of s 74D of the SOA which required the recording of the interview with Watts who was at that time a suspect. Nonetheless, the judge, in the exercise of his discretion, admitted the evidence on the basis that it was important evidence to the prosecution case and that the contravention of s 74D occurred as a result of an erroneous belief on the part of the officer that, because the interview related only to the issue of bail, it was not an interview for the purposes of s 74D, and was not the result of a conscious decision on the part of the officer to disregard the requirements of s 74D. That reasoning was not challenged on appeal.
Submissions of the appellant
The appellant submits that the judge erred in finding that Detective Vance had reasonable grounds to suspect that evidence of an offence might be located by a search of the Parafield Gardens premises. She submits that it was not open to the judge to find that Detective Vance was either mistaken as to what she had been told by Senior Constable Walker concerning where Watts was living, or that Officer Walker had, in effect, misspoken so as to innocently mislead Detective Vance into believing that Watts was residing at the appellant’s address. Further, she submits that the other factors relied upon by the judge for establishing reasonable grounds to suspect, even in combination, were insufficient to do so. Accordingly, the search was unlawful.
In the circumstances, the Court should exercise the discretion afresh and exclude the evidence obtained as a result of the search of the appellant’s residence to ensure that the excesses of power by which the evidence was procured is censured in order in future to better secure compliance by police with the lawful requirements conditioning the exercise of police powers of search.
Submissions of the respondent
The respondent submits that there was no error in the approach taken by the judge. The evidence establishes that Detective Vance had a genuine suspicion in relation to the appellant’s place of residence at Parafield Gardens. The objective circumstances support that suspicion. Accordingly, the suspicion was reasonable. The combination of the result of the search of Watts’ van, the genuine belief of Detective Vance that he resided at the Parafield Gardens address, and the information contained in the SAPOL database that the address was a place of interest in relation to drugs was sufficient to establish a reasonable ground to suspect. Accordingly, this was not an occasion for the exercise of the Bunning v Cross discretion. If it had been, the discretion should have been exercised to admit the evidence in any event. This was not a case of a widespread misunderstanding by police of the extent of their powers or of a deliberate decision to exercise powers in contravention of the limits upon them. The evidence obtained was highly probative in relation to a crime which had already been committed. It was not a case in which the crime would never have been committed but for the unlawful conduct of the police.
Reasonable suspicion
Section 67(4)(a)(iii) of the SOA confers on a police officer, who is the holder of a search warrant, power to search premises where the officer has reasonable cause to suspect there is anything there that may afford evidence as to the commission of an offence.
Whether or not reasonable suspicion attaches to certain conduct or circumstances is a factual question.[1] The law in relation to reasonable suspicion was considered in R v Nguyen[2] where the Court said:[3]
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
Importantly, … more than an actual suspicion [is required]; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[Citations omitted].
[1] R v Colenso [2016] SASCFC 128 at [32].
[2] [2013] SASCFC 91, (2013) 117 SASR 432.
[3] [2013] SASCFC 91 at [21] – [22], (2013) 117 SASR 432 at 437.
A suspicion founded on information subsequently discovered to be wrong does not negative the existence of the suspicion or its reasonableness.[4] As was observed in Manley v Tucs,[5] a suspicion does not have to be well founded or factually correct to be reasonable.
[4] R v Rogers [2011] SASC 40 at [26], (2011) 109 SASR 307 at 312.
[5] (1984) 40 SASR 1 at 9.
Was the search lawful?
It is implicit in the reasons of the judge that he accepted Detective Vance held a genuine suspicion that a search of the appellant’s premises might lead to the discovery of evidence of drug-related offending. There was no proper basis to interfere with that conclusion. That suspicion was objectively reasonable on the basis of the following: the evidence of the items discovered in Watts’ van which indicated involvement in drug trafficking; the information conveyed by an interrogation of the SAPOL database that the appellant’s address was a place of interest; and Detective Vance’s mistaken understanding that Watts resided at the appellant’s address. It is not open on appeal to challenge the evidence of Detective Vance that she believed Watts was currently resident at the appellant’s address given that there was no challenge to her evidence on this topic on the voir dire. Whether the information relied upon by Detective Vance was factually accurate or admissible in evidence is not relevant to whether she suspected on reasonable grounds that a search might elicit evidence of the commission of an offence. When evaluated objectively all of those matters in combination provided reasonable grounds to suspect.

I do not accept the alternative submission of the appellant that there was an insufficient basis to suspect that evidence of the commission of an offence might be found upon a search of Watts’ residence on the basis of items found in his van which aroused a suspicion of Watts’ involvement in drug trafficking. The appellant submits there is not a sufficient nexus between the evidence located in the van and Watts’ place of residence. In my view a police officer who discovers incriminating evidence of drug trafficking as a result of a search of a person’s motor vehicle might reasonably suspect that further evidence may be found at other places, including where applicable, a safe house, a storage unit, a workplace or that person’s residence. Experience suggests that persons involved in drug trafficking do sometimes use their residence for storage and safekeeping of drugs. There is no error demonstrated in the judge finding that, if the appellant’s residence was also Watts’ residence, there was a sufficient basis to suspect evidence of drug trafficking might be found at his place of residence given the evidence found in his van.
Contrary to the submission of the appellant, Detective Vance’s suspicion was not based upon flimsy material or a process of reasoning which relies on tenuous connections.
For these reasons the resulting search was not unlawful as the police conducted it on the basis of a reasonable suspicion. That being the position, no occasion arose for the exercise of the Bunning v Cross discretion.
In any event, had I formed a different view as to whether the police had reasonable grounds to suspect that a search of the appellant’s premises might disclose evidence of offending, I would nonetheless have upheld the exercise of the judge’s discretion not to exclude the evidence obtained as a result of the search.
Bunning v Cross discretion
In R v Rockford[6] I undertook an analysis of the principles relevant to the Bunning v Cross discretion.[7] I said:[8]
[6] [2015] SASCFC 51, (2015) 122 SASR 391.
[7]    Kourakis CJ and Sulan J agreeing.
[8] [2015] SASCFC 51 at [29] – [36], (2015) 122 SASR 391 at 397 - 400.
The so-called rule in Bunning v Cross confers upon a court a discretion to exclude relevant and admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally. The Bunning v Cross discretion has its roots in R v Ireland where Barwick CJ considered that a trial judge had a discretion to reject real evidence that was unlawfully obtained. He said:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
In Bunning v Cross Stephen and Aickin JJ, delivering the leading judgment for the court, said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law… [T]he discretionary process called for by Ireland … [is] concerned with broader questions of higher public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
Their Honours explained the considerations underpinning the competing principles which inform the exercise of the discretion as follows:
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards, its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.… [T]he courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law … [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to admissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
In Cleland v The Queen Deane J extended the field of operation of the public policy discretion to include impropriety in addition to unlawfulness. He stressed the balance which had to be struck in exercising the discretion in the following terms:
The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law.
In Pollard v The Queen Deane J further explained the application of the Bunning v Cross discretion in the following way:
[T]he principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
Ridgeway v The Queen was a further extension of the public policy discretion. The unlawfulness in Ridgeway was not in the conduct of police in obtaining evidence of a crime committed but in the conduct of law enforcement officers who themselves committed a crime in order to establish an element of a further offence which they anticipated would be committed by the accused. Ridgeway is a case of entrapment. The exclusion of the evidence obtained by way of the sting in Ridgeway reflected the Court’s duty to ensure that it did not, by the failure to exercise its discretionary powers, achieve an objective which flagrant and deliberate breaches of the law by law enforcement officers was designed to achieve. Mason CJ, Deane and Dawson JJ said:
[T]he considerations of “high public policy” which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
(Citations omitted).
In R v Swaffield Kirby J identified the considerations relevant to the exercise of the public policy discretion in Bunning v Cross as follows:
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charged. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i)      whether the conduct was deliberate, or resulted from a mistake;
(ii)     whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii)    the ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv)    the legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson JJ in Ridgeway added an additional consideration:
(v)     “whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”
(Citations omitted).
In R v Lobban this Court held that the public policy discretion in Bunning v Cross is enlivened only when the evidence sought to be excluded is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. The Bunning v Cross discretion does not operate to punish unlawful, improper or unfair conduct on the part of law enforcement authorities. That is a matter for police disciplinary procedures or the invocation of separate criminal proceedings. It is only when such conduct results in the obtaining of relevant and admissible evidence that the Court is required to exercise its discretion whether to exclude such evidence obtained by such means. The discretion to exclude does not extend to subsequent conduct on the part of law enforcement authorities, unless the subsequent conduct is closely connected with the earlier conduct. For example, the discretion does not apply where police officers give false evidence as to how material was obtained, where the material itself was not illegally or improperly obtained. The unlawful or improper conduct must be the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.
[Citations omitted].
The appellant submits that the court should exclude the search evidence on the basis that reasonable grounds to suspect did not exist. Accordingly, the evidence having been unlawfully obtained, it must be excluded to censure the excess of power by which the evidence was procured in order to better secure compliance by police with the limits on their search powers.
The discretion is enlivened by unlawful or improper police conduct. Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations. Those considerations focus on competing aspects of the public interest. While the court must be careful to protect the citizen from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power.
In that regard, it is significant that the judge found there was no conscious impropriety by Senior Constable Walker in the provision of information to Detective Vance. On the appeal there was no challenge by the appellant to that finding. Further, the action of Detective Vance in interrogating the SAPOL database, in response to the information she received from Senior Constable Walker, indicates that her decision to undertake the search was not impulsive or ill considered. The judge’s finding that she genuinely suspected that evidence of drug trafficking might be located at his residence contraindicates this being an example of the deliberate abuse of the search power as a result of a disregard of the limitations upon the exercise of that power. Neither could this be categorised as an instance of a widespread misunderstanding by police of the conditions governing the exercise of the search power as occurred in Rockford. This would have been a case of unlawful conduct resulting from a mistake.
In addition to those factors, this case involved serious offending involving trafficking in methylamphetamine and the unlawful possession of approximately $23,000. There is a strong public interest in the detection and prosecution of such offending. Further, the offending in this case would have been in the category of unlawfully procured evidence relating to offending which had already occurred, rather than the category discussed in Ridgeway of offending which would never have occurred but for the unlawful conduct of the police. The factors favouring the exclusion of such evidence is not as strong in the former category as in the latter category.
The administration of justice would not have been demeaned in this case by the admission of the evidence procured by the search if the search had been unlawful.
In these circumstances, had I been required to exercise the discretion afresh, I would not have excluded the evidence.
Conclusion
I would dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of Stanley J.