R v Hilfy
[2019] SADC 56
•8 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HILFY
[2019] SADC 56
Reasons for Rulings of His Honour Judge Barrett
8 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
The accused is charged with trafficking in methylamphetamine, cultivating a commercial quantity of controlled plants for sale, diverting electricity and possessing prescribed equipment. Police attended the property to investigate reports of drug offending at the house. There was no answer to their knocking on the front door. No one was home. They went to the backdoor to see if anyone was home. In doing so they trespassed into the backyard. In the backyard they made observations sufficient to authorise a search. They left the property and advised a warrant holder of their suspicions.
Held: The trespass was slight in the circumstances. Evidence of the proceeds of search is not excluded.
District Court Criminal Rules 2014 (SA) r 49(1)(h), referred to.
R v Rockford (2015) 122 SASR 391; [2015] SASCFC 51, considered.
R v HILFY
[2019] SADC 56
The accused is charged with drug offences arising from a search by police of a house she was renting at Pooraka.
On the 17th of January 2018 police found in the house 21 cannabis plants being grown hydroponically and 16.63g of methylamphetamine. The accused is charged with:-
1Trafficking in methylamphetamine;
2Cultivating a commercial quantity of controlled plants for sale;
3Diverting electricity from a power system;
4Possessing prescribed equipment.
The accused has filed a notice pursuant to rule 49(1)(h) of the District Court Criminal Rules 2014 (SA) seeking the exclusion of the evidence of the fruits of the police search on the basis that the search was unlawful. The accused submits that insofar as the police formed a suspicion that there were drugs in the house, that suspicion was formed when the police were trespassing on the property. The proceeds of the search were tainted by that unlawful trespass.
On the 15th of March 2019 a voir dire was conducted without witnesses giving oral evidence. The factual basis for the voir dire was contained in a summary of Agreed Facts dated the 15th of March 2019. At the end of the voir dire I ruled that the evidence of the fruits of the search would not be excluded. I now provide my reasons for that finding.
Entry into the house was effected on the 17th of January 2018 by a police officer in possession of a general search warrant. That entry followed observations made about the property by Constables Daniel Wauchope and Scott Tampalini when those two officers went to the house earlier in the day.
At about 6pm on the 17th of January, Wauchope and Tampalini went to the house to investigate information they had received that cannabis was being grown on the property. There was no answer when they knocked at the front door. The front windows of the house were completely covered so that nothing could be seen of the interior from the outside. There was a Renault Sedan parked in a carport in the driveway.
The officers walked down the driveway to a fence and a gate which separated the carport from the backyard. The fence and the gate were barely higher than the car so that an adult could easily look into the backyard (see photos).
Wauchope looked over the fence. He saw a garden hose running from a tap to underneath the rear wooden door of the house. Wauchope opened the gate by lifting the latch. Both officers went into the backyard. They walked 13 to 14 metres from the gate to the backdoor of the house at the other end of the rear of the property from the gate. There was no answer when they knocked on the backdoor. The officers noticed that a curtain covered the inside of a room at the back of the house (bedroom 2). Notwithstanding the curtain a bright yellow light was emanating from the room. Tampalini looked through a gap in the curtain but could see no one inside.
From the rear door Wauchope could see into a shed (marked as ‘study’ on the annexure to the Agreed Facts) through the door of the shed which was ajar. Inside the shed Wauchope could see large white lightshades, light globes and empty black pots. These are items commonly used in the cultivation of cannabis. While the items in the shed could be seen by Wauchope at the back door they could not have been seen from the gate.
Tampalini walked from the bedroom window to the shed and saw the contents for himself. Neither officer entered the shed. Both officers then left the property. It is agreed that neither officer formed any suspicion about drug offences being committed at the property until they went through the gate into the backyard. There they each formed such a suspicion upon noticing:-
·The water hose going under the backdoor;
·The bright light coming from the bedroom window;
·The contents of the shed.
It is agreed that the officers entered the backyard to investigate whether anyone was at the premises.
The statement of Agreed Facts includes the concession by the prosecution that the entry by the officers into the backyard was a trespass, not being authorised by any police power, warrant or authority to open the back gate and enter the yard. It is agreed that while the police did not deliberately intend to trespass in the backyard they were reckless as to whether they were authorised to enter it. It is agreed that the police officers’ entry onto the front of the property and knocking on the front door was permitted by implied licence.
Neither Wauchope nor Tampalini was the holder of a general search warrant.
Brevet Sergeant Matthew Hudson was the holder of a general search warrant. At the request of Wauchope and Tampalini, Hudson went to the house at Pooraka. At the front driveway he met up with the two Constables who told him of their observations. In addition Hudson either saw, or was told about, a rental agreement relating to the property which disclosed that the tenant was Ms Myriam Hilfy, the mother of the accused.
Hudson went with Wauchope and Tampalini into the backyard and made the same observations as they had made. Hudson thereupon had the requisite suspicion empowering him to exercise his general search warrant to search the house. However he deferred entering the house until Ms Myriam Hilfy could be contacted so that she could open the house without the need for there being any damage to the property.
Shortly afterwards the accused, not her mother, arrived at the house in a black BMW Sedan. Hudson asked her if there was anything in the house that would give rise to an offence. The accused told him that there was cannabis growing inside.
While it is not an agreed fact, Hudson says in his witness statement of the 22nd of July 2018 that the accused told him that she did not have keys to the house but she could crawl under the house to get into it. Hudson told her that he would enter the house under the authority of his general search warrant that he showed her. Police forced entry through the rear door of the house. The method of entry into the house is not part of the grounds for exclusion of the evidence.
Inside the house two rooms contained 21 cannabis plants growing hydroponically. On a bedside table in the front bedroom was 16.63g of methylamphetamine.
Issues on voir dire
The question for determination is whether the search of the house is unlawful because the suspicions sufficient to authorise it were formed by the police when they were trespassing in the backyard. Hudson’s suspicions were formed on the basis of what Wauchope and Tampalini told him about what they had seen while they were trespassing in the backyard. It was orally agreed between counsel for the prosecution and the defence that Hudson did not believe that Wauchope and Tampalini trespassed by entering the backyard. It is further agreed that Hudson acknowledges that there is no special police power for officers to enter the backyard.
Submissions by the defence
Mr Watson for the accused submits that the trespass into the backyard by the police was deliberate conduct. The officers were reckless as to the limits of their powers of entry. The court should not countenance such recklessness. The conduct of the three police officers should be corrected by the exclusion of the evidence produced by the search.
Mr Watson referred to the case of R v Rockford (2015) 122 SASR 391, [2015] SASCFC 51 which was, in part, an appeal from what was said to be an error by the trial judge in declining to exclude evidence of drugs obtained by a police search of a property in the Adelaide Hills. In that case two police officers were investigating information that the accused was growing cannabis on a property somewhere in the area. The police were trying to locate the property. They accessed a rural gate.[1] They got no answer when they knocked on the front door of the house. They walked around the property. They inspected a shed where they found hydroponic equipment. They broke the lock of another shed where they heard what they suspected, correctly, was functioning hydroponic equipment.
[1] There was contrary evidence about whether the police jumped over the locked gate or secured and then re-secured the chain.
The trial judge found that the entry by the police onto the property and the later search was unlawful. The trial judge declined to exclude the evidence, finding that the officers held an honest but mistaken view about the limits of their powers of entry.
Stanley J, with whom Kourakis CJ and Sulan J agreed, upheld the appeal finding the exercise of the discretion to admit the evidence was erroneous. Stanley J found that ‘from the moment of their entry onto the property the police were engaged in a search.’ His Honour held that the erroneous views of the police about the scope of their powers of entry represented ‘a view which, if tolerated by the courts, is calculated to lead to wide-spread and arbitrary infringements on civil liberties. It is those limitations on police powers of search and entry which constitute a fundamental safeguard of those civil liberties.[2]
[2] [41].
Mr Watson submitted that the police entry into the backyard to the applicant’s house was not an isolated, accidental failure to comply with civil liberties but was reckless, a reckless practice which requires the correction of the court.
Submissions by the prosecution
Mr Lodge for the prosecution submitted that the search of the house which began with the forced entry into the backdoor was not itself unlawful. By that time the police had the requisite suspicion to search the house. The exclusory discretion arises not from the unlawfulness of the search but from the forming of the requisite suspicion while committing a trespass in the backyard. In the circumstances of this case the trespass was, he submitted, slight. The purpose of the entry into the backyard was not to search but to see if anyone was home. That motivation is Agreed fact 35. By the time he got to the backdoor, Constable Wauchope had already noticed the hose going under the back door and he had seen the bright light coming from the back bedroom window. From where he was standing at the backdoor he could see through the partly open shed door to the hydroponic equipment within. Having made these observations the two officers left the property and contacted Brevet Sergeant Hudson, the holder of the general search warrant.
Mr Lodge submits that it is relevant in weighing up the approach of the police to note what the warrant holder Brevet Sergeant Hudson did when he arrived at the scene. Although he had formed the requisite suspicion to exercise the powers of the warrant he chose not to do so until the tenant could be given an opportunity to let the police into the house without there being a forced entry.
Mr Lodge sought to distinguish Rockford. In that case the security of the apparently locked gate was breached. Either the police jumped over the gate or they unsecured then re-secured the chain. In the present case the gate was not locked.
Further, in Rockford, the Supreme Court found that the police were engaged in the search from the moment they entered the gate. They entered the property to see if it belonged to the accused. When they got no answer at the front door they walked around the property inspecting it. The entry into that property was to search. The entry in the present case was to see if someone was home.
Conclusion
The statement of principle in Rockford emphasises the importance of police being aware of the limits of their powers, in this case the powers of entry into private property. The case also emphasises the importance of police strictly observing those limits. Recklessness by police as to those limits can, for the most part, only be corrected by the exclusion of the evidence found. The facts of Rockford are similar to the facts here.
However, I think there is a material difference which distinguishes the cases. In this case the police were not in my view trespassing in the backyard for the purpose of a search. They exceeded the licence permitting them to knock on the front door to see if someone was home by knocking on the backdoor for the same purpose. In the process of getting to the backdoor they saw all the things which aroused their suspicion that the information they took with them to the premises in the first place was correct – drugs were possibly being grown in the house. By the time they knocked on the backdoor the police had seen the hose going under the backdoor, the bright yellow light coming from the back bedroom window and, through the partly open shed door, the hydroponic equipment inside. The police had not gone through or over an apparently locked gate. They had simply opened one which was fitted with an ordinary latch.
In my view the trespass was slight. The police were not acting in a cavalier disregard of the occupier’s right to privacy. They delayed entry into the house to see if the occupier could be contacted so as to avoid a forced entry. The probity of the evidence, as in Rockford, is unaffected by the trespass. As with Rockford serious offending was discovered.
For these reasons I decline to exclude the evidence of the fruits of the search. The evidence will be admitted.
The trial is set for the 16th September 2019.
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