R v Greenwood - [2017] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GREENWOOD
[2017] SADC 81
Ruling of Her Honour Judge McIntyre
27 July 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused has applied under Rule 49 of the District Criminal Court Rules for a declaration that a search of her residence on 6 June 2015 was unlawful and for orders excluding the evidence seized during the search and in any event an order that the prosecution not be permitted to lead evidence of the location of drugs and drug paraphernalia.
Held: The search conducted was not unlawful. Application dismissed.
District Criminal Court Rules R49; Summary Offences Act 1953 s67(4), referred to.
R v Nguyen (2013) 117 SASR 432, 437.; Crowley v Murphy (1981) 52 FLR 123.; R v Willingham (No.2) [2012] N [SASCFC] 104; R v Golja [2017] SASCFC 61; Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70; R v Rogers (2011) 109 SASR 307.; Bunning v Cross (1978) 141 CLR 54, considered.

R v GREENWOOD
[2017] SADC 81
Introduction

The accused has been charged with four counts of trafficking in a controlled substance, methylamphetamine. She has applied under Rule 49 of the District Criminal Court Rules for a declaration that a search of her residence on 6 June 2015 was unlawful. She further seeks orders excluding the evidence seized during the search and orders that the prosecution not be permitted to lead evidence of the location of drugs and drug paraphernalia.
The search was conducted under a general search warrant held by Detective Brevet Sergeant Banfield. The defence argument, in summary, is that Detective Banfield did not have a reasonable suspicion for the purposes of Section 67(4) of the Summary Offences Act 1953 (“the Act”) to enable her to lawfully carry out the search of the accused’s residence. In the alternative, the defence argue that even if Detective Banfield had the requisite reasonable suspicion, the Bunning v Cross[1] discretion ought to be exercised to deem the evidence obtained during the search inadmissible.
[1] (1978) 141 CLR 54
For the reasons that follow I decline to make the declaration or the orders sought by the accused.
Evidence
Detective Brevet Sergeant Banfield is an experienced police officer, having served for 3 years with the Police Anti-Corruption Branch, and prior to that for 12 years in the Elizabeth CIB. She was designated a detective in March 2013. She was at the relevant time, the holder of a General Search Warrant (GSW)
The South Australian Independent Commission Against Corruption (ICAC) sent a letter to the Commissioner of Police on 28 April 2015. The letter contained a number of allegations by an anonymous source concerning the accused; a serving police officer. The ICAC letter was therefore forwarded to the Police Anti-Corruption Branch (“ACB”) where Detective Banfield was assigned the investigation on 30 April 2015.
The ICAC letter contained allegations that:
(a) the accused is a heavy alcohol and drug user, often attending work while “high and coming down off ice”;
(b) the accused purchases drugs from Chris Allford;
(c) the accused was supplying Allford with information about police activity to assist him in moving his drugs;
On 5 May 2015 Detective Banfield received further details in an email from ICAC as to the allegations made by the anonymous source. She was told, amongst other things, that:
(a)   the accused began using methylamphetamine after Christmas 2014;
(b) prior to using methylamphetamine the accused would drink heavily, and consequently call in sick to work;
(c)   after the accused ‘swapped’ to methylamphetamine the accused no longer called in sick as much;
(d) the accused also buys drugs from an Aaron Smith; and
(e)   Smith and Allford (inaccurately referred to as Orford in this email) are associated;
(f)    the accused was also associated with a person called “Rob” or “Robbo” through Smith and Allford;
(g) the accused told Smith that she could provide Allford with information relating to police patrol cars, for cash or drugs, if Allford was to move drugs or cash;
(h) Allford was recently imprisoned from 6 March 2015 to 8 April 2015, and that during this time he called the accused, on her mobile phone. Allford has a ‘crush’ on the accused.
Detective Banfield said that she immediately began investigations to either confirm or negate the allegations from the anonymous source.
Detective Banfield confirmed that the accused was a serving police officer and that she had recently moved to CIB as asserted by the informant. She suspected that the accused may have abused alcohol in the past because of two incidents of driving whilst exceeding the prescribed concentration of alcohol. The accused’s leave records indicated a number of absences in 2012, 2013 and 2014 but only one absence in 2015 consistent with the information provided by the informant.
Detective Banfield obtained details of the accused’s mobile telephone number and home address.
On 5 May 2015 Detective Banfield determined that Allford had a criminal history including for drug offences. Consistent with information provided by the anonymous source, Detective Banfield established that Allford had been imprisoned at the Adelaide Remand Centre between 26 February 2015 and 9 April 2015. A police check on Smith also established that, whilst he had no prior convictions, ancillary reports indicated his involvement with illicit substances. Detective Banfield located mobile phone numbers that may be used by Allford and Smith.
On 8 May 2015 Detective Banfield completed a request to preserve stored communications in respect of the accused’s mobile telephone service inter alia on the basis that call charge records confirmed information that she contacted Allford and Smith on a significant number of occasions in March and April 2015. Detective Banfield indicated in her request that she was investigating the accused in respect of the offences of abuse of public office and trafficking in controlled drugs.
The anonymous source alleged that the accused had contact with Allford whilst he was in gaol. On 8 May 2015 Detective Banfield obtained and, over the course of a number of days, reviewed recordings of calls made by Allford whilst he was in gaol. As she listened to the calls she made notes in a schedule.[2] After reviewing the calls, considered that they substantiated a number of allegations made by the anonymous source.
[2] Exhibit VD-P5
On about 10 occasions Allford contacted the mobile telephone service associated with the accused. The name recorded against this mobile service on Allford’s prison contact list was “Hayley Stanzel (friend).” Aaron Smith was also on Allford’s contact list and the mobile phone number recorded against his name was the same as the number the anonymous source had provided for Smith. Allford also had a contact said to be “Rob Scaetry” a friend on his call list. Detective Banfield believed that Hayley Stanzel was the accused and that Rob Scaetry may be Roberto Scuteri. A check of police records on Scuteri by Detective Banfield located ancillary reports that he had been involved with illicit substances. The calls indicated that “Scaetry” knew Hayley Stanzel.
Throughout the first month of her investigation Detective Banfield obtained and reviewed a number of call charge records of the accused and her associates. Detective Banfield considered that these records further substantiated allegations made by the anonymous source including confirmation of contact between the accused, Allford, Smith and Scuteri. In addition, the call records established contact between the accused and two further men Booth and Buder. Detective Banfield determined that both Booth and Buder were known to have involvement in illicit drugs. From surveillance undertaken on the accused, Detective Banfield believed that the accused’s contact with Booth and Buder went beyond telephone contact. She also observed that the accused’s call charge records indicated extended periods of wakefulness which Detective Banfield regarded as consistent with the accused being a user of illicit substances as asserted by the anonymous source.
Detective Banfield also investigated whether the accused’s contact with the various people named may have occurred in the course of her official duties. There was no evidence that it had nor was there any declaration by the accused concerning those associates.
Detective Banfield’s investigation did not reveal any evidence that negated or was inconsistent with the allegations made by the anonymous source. In consequence, by 6 June 2015 and before the discovery of a handbag, Detective Banfield gave evidence that she suspected that:
·the accused was associating with Allford, Smith and Scuteri as asserted by the anonymous source;
·she was also associating with Booth and Buder;
·all 5 men had past criminal and/or drug convictions;
·the accused was aware of Allford’s dealing in illicit substances and was involved in his dealings; and was potentially associated with others involved in the illicit drug trade.
Detective Banfield suspected that the accused was committing or had committed criminal offences specifically that she was involved in the trafficking of illicit substances and that she had abused her public office by providing information to Allford to assist him in his trafficking activities as alleged by the anonymous source. Further the accused’s association with people who had criminal backgrounds or who appeared to be engaging in criminal activities led Detective Banfield to question the accused’s association with those people. She said this factor was relevant to her suspicion that the accused was abusing her public office.
At around 10:00am on 6 June 2015 Detective Banfield was presented with a handbag by Detective Brevet Sergeant Andrew Mensforth at Police Headquarters. The bag had been handed into police after being found near Krispy Kreme on Gouger Street in the city. Notably, the bag contained the Driver’s License, Police Badge and Police Identification of the accused, various receipts, a small black case with a sponge, glass pipe, ten empty clear plastic resealable bags and another plastic bag containing three tablets and others with powdery residue. Detective Banfield considered the unused empty plastic bags to be paraphernalia associated with the sale of drugs. She further considered the pipe consistent with the consumption of methylamphetamine and the pills to be very likely an illicit substance.
Detective Banfield believed that the handbag, the illicit substances and drug paraphernalia belonged to the accused. In view of the contents of the handbag, the information from the anonymous source that she believed to be reliable and the investigation she had already undertaken, she said that she suspected that the accused may be involved in the trafficking of illicit substances and that she was abusing her public office. Detective Banfield said that she further suspected that there may be something that may afford evidence as to the commission of those offences at the accused’s home and therefore decided to search the accused’s premises under the authority of her general search warrant.
At about 1:15 pm on 6 June 2015 Detective Banfield attended at the accused’s home address with other officers and executed her general search warrant. She entered the premises using a set of keys located in the handbag.
The Law
The onus is on the accused to establish on the balance of probabilities that the search was unlawful.
The GSW is a powerful tool entrusted to the Commissioner of Police, it enables police to act immediately on a reasonable suspicion, and without judicial oversight. This is a significant intrusion into civil liberties, and as such when the exercise of a GSW does come under judicial review it must be subject to close scrutiny.
Section 67(4) of the Act is enlivened if the exercising officer holds a current reasonable suspicion that:
(i)        an offence has been recently committed, or is about to be committed;
(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;
The Court of Criminal Appeal in Nguyen has said that a suspicion is less than a belief, but is “a working hypothesis for which there is some supporting material.”[3] A suspicion is reasonable if there is an objectively “rational connection between the supporting material and the suspicion”,[4] and if the facts and circumstances relied upon are ostensibly credible.[5]
[3] R v Nguyen (2013) 117 SASR 432, 437.
[4] Ibid.
[5] Crowley v Murphy (1981) 52 FLR 123.
The general approach to be taken when assessing the reasonableness of a police officer’s suspicion is to first ascertain whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable.[6] The suspicion must be entertained at the time the search is undertaken, it must attach to the specific premises and there must be a rational connection between the supporting material and the suspicion “in the mind of a person thinking reasonably about the information upon which the suspicion is based.”[7]
[6] R v Willingham (No.2) [2012] N [SASCFC] 104
[7] R v Nguyen (2013)117 SASR 432, 437
The Accused’s contentions
The accused says that Detective Banfield failed to make any contemporaneous record of her suspicions prior to the execution of the search warrant and says that her explanation for this failure was not credible in the light of the various matters outlined in the accused’s outline of argument. The accused further contends that Detective Banfield’s evidence that she entertained a suspicion that the accused had committed the offences of abuse of public officer and or trafficking in a controlled drug and that there was likely to be evidence of the commission of those offences at the accused’s home address was undermined by a number of matters:
·Proof of prior inconsistent statements.
·Her evidence was internally inconsistent and at times wholly contradictory.
·Her evidence was contradicted by other reliable evidence.
·Her attitude towards compliance with important statutory and policing requirement was at best slip shod and at worse a deliberate disregard of the general order.
The accused further says that even if I accept that Detective Banfield did have a genuine suspicion at the time of the exercise of the search warrant it was not a reasonable suspicion based upon the material that she had at the time.
Did Detective Banfield have a genuine suspicion?
An assessment of this issue requires a consideration of the evidence of Detective Banfield. In essence, the accused invites me to reject her evidence as unreliable and untruthful. I decline to do so. I found Detective Banfield to be a careful and compelling witness who gave cogent evidence about relevant matters. Her evidence was, moreover, consistent with the materials produced in court. I have no reservation in accepting Detective Banfield as a witness of truth.
It is undoubtedly important that police officers exercising the wide powers authorised by a warrant under s.67 make a record of the information they receive and the grounds upon which the warrant was issued.[8] Detective Banfield made meticulous notes of her investigations and was able to give evidence of these investigations by reference to those notes.
[8] R v Golja [2017] SASCFC 61
The accused relies upon what are said to be prior inconsistent statements by omission. Detective Banfield completed a declaration 27 April 2017 in relation to charges of abuse of public office against the accused. There is no reference in that statement to the fact that Detective Banfield entertained any suspicion that the accused had committed the offence of trafficking and abuse of public office prior to the discovery of the handbag. In her evidence before me Detective Banfield said she held such a suspicion as early as 8 May 2015. The statement further does not contain a reference to a conclusion that she said that she drew from the ARC calls; specifically, her evidence that she concluded that the accused had knowledge of the circumstances in which Allford was asking Smith to collect money on his behalf. I do not regard either of these omissions as demonstrating unreliability in the account that Detective Banfield gave in Court.
Whilst it is undoubtedly true that there is no list of suspicions in her notes this does not in my view mean that Detective Banfield did not have a suspicion. She made extensive notes concerning her investigations including what material she obtained, what she reviewed and what she had at relevant times. It is clear, from the contemporaneous notes and documents that she was, as she said, investigating the offences of abuse of public office and trafficking in controlled drugs; indeed, she included information to that effect in her request for preservation of stored communications dated 8 May 2015.
The conclusion Detective Banfield says she drew from the ARC calls namely that the accused was aware of Smith collecting money on behalf of the accused is amply supported by the content of the calls. Detective Banfield commenced noting those calls on 8 May 2015 and concluded her schedule of those calls by 12 May 2015.
The nature and extent of the information Detective Banfield had gathered over the course of her investigation and the finding of the handbag on the morning of the search is more than sufficient in my view to support Detective Banfield’s evidence that she had formed those suspicions prior to undertaking the search. Whilst the finding of the handbag may have been as the accused contends, ‘fortuitous’ it supported the conclusions and suspicions that Detective Banfield says that she entertained during the course of her investigation. There is a substantial volume of material that supports what Detective Banfield says her suspicions were and I accept her evidence that she did entertain such suspicions. Indeed, I consider it is implausible that an experienced police officer such as Detective Banfield did not hold such suspicions given the material she had gathered.
The Commissioner of Police has issued a general order dealing with the use of search warrants. The accused contends that Detective Banfield failed to comply with the relevant general order[9] by failing to complete a PD23A which recorded her suspicions prior to the execution of the search warrant. It is said that her explanation for her failure to do this was not credible and demonstrated a complete disregard of the requirements of the general order. It is said that her evidence on this topic was internally inconsistent and implausible.
[9] Exhibit VD-D14
The general order is not an instrument of a legislative character; rather it is administrative in nature.[10] Compliance with the general order is not required by s67 of the Act and is not therefore required for lawful execution of powers under that section. The accused suggested that Detective Banfield’s failure to comply with the order demonstrated that she did not genuinely hold the suspicion she claimed to have prior to the search and that the suspicion was a subsequent fabrication based upon what was discovered in the search.
[10] Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70.

Detective Banfield did not complete a PD23A prior to the execution of the search warrant. This is unfortunate as it would likely have avoided the necessity for the lengthy voir dire in this matter. I do not however consider that the failure to complete the PD23A prior to the search, of itself, means that Detective Banfield did not hold the requisite suspicion prior to the search.
I have carefully considered the transcript and the evidence to which I was referred during the course of submissions. I did not consider Detective Banfield’s evidence either implausible or internally inconsistent as contended by the accused.
Taken as a whole I consider that Detective Banfield was aware of her obligations. She turned her mind to the relevant questions about executing the general search warrant. Detective Banfield’s evidence further demonstrates that she turned her mind to the fact that the PD23A would need to be completed. I do not accept the submission that her evidence establishes that it was her practice not to comply with the terms of the general order rather it was that, in the circumstances of this particular case, she did not do so. The general order contemplates that operational needs will be put ahead of an administrative task such as completing the PD23A. Detective Banfield’s notes and her evidence demonstrate that she was attending to a number of investigative tasks following the discovery of the handbag. She gave evidence of the urgency to get to the accused’s premises and she said she considered it impractical to complete the PD23A. She conceded in cross examination that there was potentially time to fill out the form before she executed the warrant but qualified this by saying that it could not be filled out until the decision to search was made. She said that the decision to search was probably not made long before leaving.
Assessing whether Detective Banfield held a suspicion is to be undertaken by inference from all of the facts, not just an administrative instrument such as the PD23A. I note that when Detective Banfield did complete that form some days following the search she did so by reference to the notes of her investigation and the documents that she had gathered. She did not list any suspicions. She said that she did not consider that she had to do so because it was her belief that her notes and records sufficiently detailed her suspicions. As it happens they did not but if she had, as suggested by the accused, fabricated the suspicion following the search one would have expected a more detailed completion of the form to bolster that fabrication.
I have no hesitation in accepting Detective Banfield’s evidence as to her state of mind on 6 June 2015. She had been investigating the accused for abuse of public office and trafficking in controlled drugs from at least 8 May 2015. She had gathered considerable information during the course of her investigation which rationally gave rise to a suspicion that the accused may have committed one or both of those offences. The finding of the handbag provided additional evidence supporting a genuine suspicion that a search of the accused’s premises might afford evidence as to the commission of an offence. Detective Banfield said that she was concerned that if the warrant was not executed before the accused returned home evidence of previous offending might be disposed of.
I reject the accused’s submission that the detective did not hold a genuine suspicion at the time of the execution of the warrant.
Was Detective Banfield’s suspicion reasonable?
The accused says that Detective Banfield’s suspicion was not reasonable because a fundamental plank in her suspicion was without foundation. This submission relates to the transcription of a prison call between Allford and the accused which occurred on the 4 April 2015, file number 3015852. Detective Banfield’s interpretation of recording 3015852 substantiated the accusation that the accused was selling police information to Allford because it was evidence of an intended exchange of money. It was the only evidence of an exchange of money.
Detective Banfield transcribed the following portion:
Allford: “Like I told him to give you some of it but, you know, I’m in fucking jail man. I need money in here you know”.
Accused: “Yeah it’s a bit of a booster”
This same recording was given to Auscript by the accused. Auscript transcribed the relevant portion as:
Allford: “Well, I told him he could use some of it, but, you know, well, I’m in fucking jail, man. I need money in here, you know?”
Accused: Yeah, to be able to do stuff.
Another ACB officer was tasked with transcribing this recording, they transcribed it as follows:
Allford: “Well I told him he could use some of it but you know. I am in fucking gaol man, I need money in here you know.”
The accused’s response was not transcribed as it was said to be incomprehensible.
The accused contends that the ACB and Auscript produce the same or substantially the same, transcript of the crucial passage and should be preferred to that of Detective Banfield. Further, the content of earlier calls confirm that Smith was being permitted by Allford to spend or use some of the money he was collected on Allford’s behalf. This context in the absence of any prior call in which there was a discussion about Smith giving money to Greenwood is said to make the version of the crucial passages as transcribed by ACB and Auscript more likely to be the accurate version. It is further said that if the court concludes that Detective Banfield mis-transcribed the relevant passages, a number of conclusions can be drawn. First, that she did not listen to the call as carefully or as many times as she deposed to in evidence. Second, that her interpretation was influenced by investigation bias and she approached her task by looking for evidence supporting the informant’s allegations and ignoring evidence that negated it. Third that she did not listen to other calls as carefully as she said and failed to consider the crucial call in context.
It is said that if the court finds that Detective Banfield’s transcription of the call was incorrect then a fundamental plank in her suspicion was without foundation. Without her version of that call, the balance of the calls and the other evidence was a foundation for no more than a suspicion that the accused was a drug user and was aware of the drug dealing activities of Allford and Smith but could not found a further suspicion that she was taking part in those activities. This is said to undermine any suspicion as to trafficking or as to abuse of public office.
I accept Detective Banfield genuinely believed that during the prison call she heard Smith say to the accused when discussing money being collected by Smith ‘I told him to give you some of it’. I accept that she approached her task of reviewing the calls carefully and with an open mind. The content of her schedule[11] evidences her belief. She said that if on a subsequent occasion she had heard something different she would have produced a new schedule or recorded a correction. She did not make any such change as she maintains that her version is correct.
[11] VDP5.
I have carefully listened to the disputed portion of the telephone recording. The recording is not clear. Either interpretation is plausible. Whilst the prior conversations between Smith and Allford might suggest that the interpretation for which the accused contends is more likely, I cannot say that the interpretation placed upon the recording by Detective Banfield is plainly wrong. I decline to draw the conclusions urged upon me by the accused that Detective Banfield did not listen to the calls as carefully as she said, nor do I accept that her interpretation was influenced by investigation bias. She did not rely upon the call to immediately search the accused’s premises. Despite her suspicions Detective Banfield did not consider that the call justified the use of the general search warrant at that point in time. She did not execute the warrant until about three weeks later following further investigations and the discovery of the handbag. I conclude that Detective Banfield genuinely believed that she heard the words transcribed.
Even if Detective Banfield was mistaken as to the existence of a fact, namely that Allford said money was to be given to the accused, that does not render her suspicions unreasonable and her subsequent actions unlawful. Retrospectively determining or discovering information upon which he relied was wrong does not undermine either the finding that she held a suspicion or that it was reasonable.[12] Even if that call was not part of the factual matrix Detective Banfield still suspected the accused of abusing her public office and trafficking in a controlled drug because of the reliability of the anonymous source.
[12] R v Rogers (2011) 109 SASR 307.
Whilst I am on the topic of the telephone call, Detective Banfield was criticised for evidence that she gave about her recollection of her getting another officer who she believed was Detective Dawson to listen to that call. She described the process as informal. Detective Dawson gave evidence that he had not heard that call previously. The accused has urged me to find this a significant inconsistency between the two police officers. I do not consider that it undermines the credibility or reliability of either witness. Detective Banfield may be mistaken as to which of her colleagues she asked to listen to the call. It may have occurred informally without her pointing out the significance of the call or only a portion of the call was played such that Detective Dawson did make a note and now has no memory of the call. He may not have been prompted to make a note particularly given the stage of the investigation.
Conclusion
I conclude that on 6 July 2015, Detective Banfield had reasonable cause to suspect that a search of the accused’s premises may afford evidence of the commission of an offence. Her suspicion was based upon information from the anonymous source, associations established through call charge records and surveillance, the prison calls, only one of which was disputed by the accused and the contents of the handbag. It was a genuine suspicion, the objective circumstances supported the suspicion and the suspicion was reasonable. I therefore conclude that the search conducted was not unlawful. In those circumstances, I do not need to consider the exercise of the Bunning & Cross discretion.