R v Ioannidis
[2015] SASCFC 158
•4 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IOANNIDIS
[2015] SASCFC 158
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
4 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Application for permission to appeal against conviction and sentence. The applicant, subject to a firearms prohibition order issued by the Registrar of Firearms, was convicted of possessing ammunition by a judge of the District Court following a trial by judge alone. She was sentenced to 12 months imprisonment with a non-parole period of eight months.
In the early hours of 29 December 2013, two police officers were on patrol in Campbelltown. They observed a vehicle pull away from the kerb outside premises where they understood that the applicant resided. They were aware that the defendant was regularly in trouble with the law. They proceeded to follow the vehicle. One officer conducted a registration check and noted that the registered owner was flagged as being wanted for questioning in relation to traffic matters. On the receipt of this information, the other officer activated the lights on the patrol car and pulled over the pursued car.
One of the officers approached the passenger side of the vehicle. He recognised the applicant in the front passenger seat. He asked her for identification. The applicant retrieved her driver’s licence from a purse in her handbag, which was between her feet in the foot well of the vehicle. The officer confirmed on the police system that the firearms prohibition order was current. The officer requested that the applicant get out of the vehicle. He intended to utilise his powers, as he understood them under the Firearms Act 1977 (SA), to search in relation to the firearms prohibition order. Two other officers arrived and assisted in the search. One officer searched the applicant’s handbag, within which he found three rounds of ammunition, the subject of the charge.
Section 32(3a) of the Firearms Act 1977 confers on a police officer broad powers of detention, search and seizure “as reasonably required for the purpose of ensuring compliance with a firearms prohibition order”.
Whether the exercise of the powers was reasonably required for the purpose of ensuring compliance with a firearms prohibition order. Whether the trial Judge should have excluded the evidence of the search. Whether the Judge erred in finding that the defendant was knowingly in possession of the ammunition. Whether the Judge should have exercised her discretion to suspend the sentence of imprisonment. Whether the Judge should have taken into account time spent in custody when fixing the sentence of imprisonment.
Held per Kourakis CJ (granting permission to appeal and dismissing the appeal against conviction and sentence):
1. The power to conduct a search of a person with a Firearms Prohibition Order must extend beyond the power exercisable by a police officer who reasonably suspects that a person, who is the subject of a FPO, is in possession of a firearm or firearm accessory. It is sufficient to conduct a search to ensure compliance with a FPO.
2. The reasonableness limitation of s 32(3a) is concerned with the proportionate use of the power to monitor compliance with a FPO. The exercising of the power to search a person subject to a FPO must be conducted in a proportionate manner that is reasonable required to ensure compliance.
3. The factual findings of the Judge as to the defendant’s knowledge of the ammunition were open on the evidence.
4. The sentence imposed was well within the Judge’s discretion. The Judge was entitled to have the time the defendant had spent in custody brought into account in other proceedings rather than the present proceedings.
Held per Gray J (granting permission to appeal and dismissing the appeal against conviction and sentence):
1. The Judge was correct to conclude that the applicant remained in possession of the handbag at all relevant times. The search of the handbag constituted a search of the defendant and was reasonably required for the purposes of section 32(3a) of the Firearms Act 1977 (SA).
2. The factual findings of the Judge as to the applicant’s knowledge of the ammunition were open on the evidence.
3. The sentence imposed was well within the Judge’s discretion. The Judge was entitled to have the time the applicant had spent in custody brought into account in other proceedings rather than the present proceedings.
Held per Peek J (dissenting):
1. The broad powers highly invasive of liberty and privacy which are conferred by s 32(3a) are subject to an express statutory condition precedent to be satisfied before their lawful exercise. The condition precedent will only be satisfied if, as a matter of objective assessment, the circumstances as known to the police officer positively require the performance of the proposed act of detention or search in order to effectuate the designated statutory purpose. A positive rational connection between the act and the effectuation of the statutory purpose is required.
2. A construction in accordance with the principle of legality strongly supports the above construction. The common law, when construing statutes which interfere with fundamental rights and freedoms, resolves ambiguity in favour of the subject. The choice by Parliament to use this condition precedent confirms that it intended the retention of fundamental rights as far as possible in the enforcement of the legislation.
3. The trial Judge failed to exercise the discretion on a correct construction of the legislation and took into account matters not relevant to the exercise of the discretion.
4. The discretion should be re-exercised. The condition precedent was not satisfied. Evidence of the finding of ammunition should be excluded to emphasise the Court’s concern that police officers entrusted with powers abrogating fundamental liberties be properly trained concerning, and pay close attention to, the conditions that must be positively satisfied before such powers are exercised.
5. Permission to appeal should be granted, the appeal allowed, the conviction quashed and a verdict and judgment of acquittal entered.
Firearms Act 1977 (SA) s 10B(1), s 10B(5), s 10C(3), s 10C(4), s 32 and s 32(3a); Acts Interpretation Act 1915 (SA) s 22, referred to.
R v Keyte (2000) 78 SASR 68; Trobridge v Hardy (1955) 94 CLR 147; Bunning v Cross (1978) 141 CLR 54; Baker v Campbell (1983) 153 CLR 52; Kruger v The Commonwealth (1997) 190 CLR 1; R v Kola (2002) 83 SASR 477; Webster v McIntosh (1980) 49 FLR 317; Donaldson v Broomby (1982) 60 FLR 124; George v Rockett (1990) 170 CLR 104; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Zheng v Cai (2009) 239 CLR 446; Lacey v Attorney-General of Queensland (2011) 242 CLR 573; R v Bolton; Ex parte Beane (1987) 162 CLR 514; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Carr v Western Australia (2007) 232 CLR 138; South Australia v Totani (2010) 242 CLR 1; Walsh v Tattersall (1996) 188 CLR 77; Lawrie v Muir [1950] SLT 37; Cleland v The Queen (1982) 151 CLR 1; Ridgeway v The Queen (1995) 184 CLR 19; Nicholas v The Queen (1998) 193 CLR 173; R v Rockford (2015) 122 SASR 391; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; He Kaw The v R (1985) 157 CLR 523, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"as reasonably required for the purpose of"
R v IOANNIDIS
[2015] SASCFC 158Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ
KOURAKIS CJ. I gratefully adopt the summary of the evidence appearing in the judgment of Peek J.
For the reasons which I give below, I would hold that the search of the appellant’s handbag was lawful and dismiss the appeal on that ground.
I would also dismiss the other grounds of appeal and the appeal against sentence for the reasons given by Gray J. On the conviction appeal, I would add the following on the question of the proper construction of s 10C(14)(a) of the Firearms Act 1977 (SA) (the Firearms Act). I would read it literally and more narrowly than the Judge did. I would hold that the presumption does not apply in the circumstances of this case. The Judge construed s 10C(14)(a) of the Firearms Act as if it were amended to read “if a person is in a vehicle [in which] a firearm etc is found”. That construction reads out the word “when” and replaces it with a more expansive connection with the premises. It can be accepted that the Judge’s construction makes the provision a much more useful evidentiary presumption for the prosecution but it does so by significantly expanding the statutory abrogation of the criminal onus of proof it effects. A literal construction of s 10C(14)(a) better preserves that fundamental evidentiary rule of Ango-Australian criminal procedure[1] without frustrating the purpose of the provision. Most searches of vehicles and premises can be conducted whilst the subject of the Firearms Prohibition Order (FPO) remains present in them.
[1] See Lee v New South Wales Crime Commission [2013] HCA 39 at [174]-[193] per Kiefel J.
Be that as it may the Judge did not rely on the s10(14)(a). The Judge was satisfied beyond reasonable doubt that the applicant was in knowing possession of the ammunition. That finding is plainly correct given:
·the location of the ammunition in a pocket of the appellant’s handbag;
·the nature of the use of a handbag;
·the inherent improbability that the appellant had used the handbag for the first time in months on 28 December 2013;
·the absence of any reason for any other person to put ammunition in her handbag;
·the improbability that another person had put ammunition in the appellant’s handbag without her knowledge and in so doing lose effective control of the ammunition; and
·the rejection of the appellant’s testimony.
On the sentence appeal, I add that the circumstances of this offence called for both personal and general deterrence to be given substantial weight.
The Legislation
The FPOs on which s 32 of the Firearms Act operate are, as Peek J observes, the final FPOs which are made by the Registrar or by a Court. In the former case the Registrar is only empowered to make an FPOs if satisfied of the prescribed criteria. It is of some significance to the proper construction of s 32 of the Firearms Act that it is one of the condition precedents to the making of FPOs by the Registrar that he or she is satisfied that possession of a firearm by the person concerned would be likely to result in undue danger to life or property and that it is in the public interest to prohibit that person from possessing or using a firearm. A person aggrieved by that administrative decision of the Registrar may appeal to the District Court pursuant to s 26C of the Firearms Act. That appeal is heard in the Administrative and Disciplinary Division of the District Court. It is a merits review conducted in accordance with equity, good conscience and the substantial merits of the case.[2]
[2] District Court Act 1991 (SA) s 42E.
Turning to the judicial power to make FPOs, the safety of the community is a relevant and important criterion for the purposes of s 299A of the Criminal Law Consolidation Act 1935 (SA) which confers that power.
It can be concluded from the conditions and considerations controlling the administrative and judicial powers to make FPOs, that possession of a firearm or firearm accessory by a person who is the subject of an FPO creates a material risk to the safety of the community.
Section 10C(4) of the Firearms Act addresses that risk by requiring a person who is subjected to an FPO to surrender all of the firearms, firearm parts and ammunition (hereinafter referred to as firearms and firearm accessories) that he or she owns. It is a serious criminal offence to fail to do so. Section 10C(3) of the Firearms Act prohibits the subject of an FPO from acquiring, possessing or using a firearm or firearm accessories. The offence so created is punishable by up to 15 years imprisonment in the case of a firearm and seven years in the case of ammunition.
Two observations can be made about those provisions. First, because it is an offence for a person who is the subject of an FPO to possess a firearm or firearm accessory, a police officer who reasonably suspects that a person is both the subject of an FPO, and in possession a firearm or firearm accessory, will have reasonable cause to search him or her. Secondly, it is plain that by creating the offence, and providing for the penalties, to which I have referred, Parliament has deemed the risk arising from the possession of a firearm or firearms accessory by a person who is the subject of an FPO to be a serious one.
Turning to s 32 of the Firearms Act it follows from the effect of the provisions that I have just mentioned that pursuant to s 32(1aa) and s 32(1ab) of that Act a police officer may seize any firearm or firearm accessory in the possession of a person whom the police officer suspects to be the subject of an FPO. It follows too that a police officer may therefore stop, detain and search any person whom the police officer reasonably suspects both to be subject to an FPO and in possession of a firearm or firearm accessory.
It is plain therefore that the powers conferred by s 32(3a) and (3b) of the Firearms Act must, if they are to be given material work to do, extend beyond the powers exercisable by a police officer who reasonably suspects that a person who is the subject of an FPO is in possession of a firearm or firearm accessory. The text of s 32(3a) of the Firearms Act so provides. The power to detain and search a person for a firearm or firearm accessory is exercisable “as reasonably required for the purpose of ensuring compliance with a firearms prohibition order”. To ensure means to make certain or sure. The purpose of the power is therefore to effectuate the legislative intent, evident in the earlier provisions to which I have referred, to protect the community by monitoring compliance with FPOs. The power to monitor compliance with FPOs is limited to those searches which are “reasonably required”. That limitation adopts a “reasonableness” standard which is commonplace in both the common law and statutory law. The “reasonableness” standard allows for the judicial development and imposition of a normative rule which reflects a community standard. However, the content and function of the reasonableness standard in s 32(3a) of the Firearms Act differs markedly from its function when it governs the strength of the requisite suspicion for the purposes of s 32 (1aa) and (1ab) of the Firearms Act. I described the “reasonable grounds to suspect” standard, albeit in a different statutory content, in R v Nguyen in this way:[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.[4]
Importantly, s 52(6) and s 52(9) of the CSA require more than an actual suspicion; 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.[5] 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.
[3] (2013) 117 SASR 432 at
[4] Bain v Police (2011) 121 SASR 10, [28]-[29]; R v Rogers (2011) 109 SASR 307, [22].
[5] R v Davidson (1991) 54 SASR 580, 584.
In contrast the reasonableness limitation in s 32(3a) of the Firearms Act is concerned not with the strength of a suspicion but with the proportionate use of the power to monitor. It is necessary to elaborate on the distinction I make. When a police power to stop, detain and search is conditioned on a reasonable suspicion that evidence of the commission of an offence will be discovered, questions of proportionality do not usually arise. As a general proposition, the power to search can, and should, be exercised whenever there is a reasonable suspicion that a search will reveal the commission of an offence. There are relatively few circumstances when considerations like the rights to personal liberty or privacy would outweigh the public interest in the detection of offences. It is therefore not surprising that Parliament has generally seen no reason to add any additional limit on a power to search which is conditioned on the existence of a reasonable suspicion of offending.
On the other hand, when the conferral of a power is not conditioned on a reasonable suspicion that a search will reveal evidence of offending, questions of proportionality and abuse of the power are likely to arise. For example, is it a proportionate exercise of a monitoring power to stop, detain and search again a motor vehicle just minutes after an earlier search? Is it a proportionate exercise of a monitoring power to enter and search a house at 3.00am in the absence of any suspicion that firearms are kept within the house by a person who is the subject of an FPO? Should the subject of an FPO be searched in his or her place of work, or whilst engaging in a sporting activity or attending a religious service? A search purely for monitoring purposes might be considered a disproportionate exercise of the power in the absence of reasons which outweigh the substantial intrusion into the subject’s personal life contemplated by the questions I have posed. It is questions of that kind which are addressed by the “reasonably required” standard. The standard calls for an evaluation of competing considerations of the kind I have identified.
Plainly, if there are reasonable grounds to suspect that the subject of an FPO is in possession of a firearm or a firearm accessory, questions of proportionality and the use of the power in s 32(3a) will simply not arise. A police officer holding that suspicion will exercise the powers in s 32(1aa) or s 32(1ab).
I do not accept that there must be a rational, or at least genuine, reason, albeit one falling short of reasonable suspicion, for thinking there has been a contravention of an FPO to enliven the exercise of the power in s 32(3a) of the Firearms Act. If Parliament had so intended it would have conditioned the more intrusive power to search the subject of an FPO on the existence of a bare suspicion of a contravention. More fundamentally, I am unable to accept that proposition because the purpose of the power is, as the section itself proclaims, to ensure that FPOs are complied with. Compliance can only be ensured if persons who are subject to FPOs are searched from time to time even when there is no apparent reason to think that they are not complying. Compliance cannot be ensured if only those persons about whom there is a rational suspicion are searched. The very reasons for imposing FPO’s suggest that there is a risk that those persons on whom they are imposed may have a tendency to breach them and that if they are so minded they are likely to take steps to avoid detection. It is for that reason that searches without cause will, speaking generally, be reasonably required, subject to countervailing circumstances of the kind which I earlier mentioned.
I accept, and it is not inconsistent with what I have just said that a genuine, but yet not “reasonable” suspicion, that an FPO is being contravened may affect the balance of considerations and justify a search which would otherwise have not been “reasonably required”. For example, if further information is received after an initial search that the subject of an FPO does have a firearm, a second search shortly after the first search may well be reasonably required. Similarly a search of the subject in the early hours of the morning or whilst attending a religious service may well be reasonably required if there is at least a bare suspicion that the subject possesses firearms.
I accept that the principle of legality requires that the power conferred by s 32(3a) of the Firearms Act be read as narrowly as its text and context allows. In my view, to require a positive and rational connection between the proposed search and the effectuation of the statutory purpose of ensuring compliance with an FPO, beyond the obvious need to search without cause to make compliance certain, transforms the “reasonably required” limitation to one of “rational but not reasonable suspicion of contravention”. I would not attribute to Parliament an intention to enact a distinction of such subtlety, between ss 32(1aa) and 32(1ab) of the Firearms Act on the one hand and s 32(3a) on the other, to address a risk to community safety of such obvious concern and importance. Moreover, it must be remembered that the principle of legality is a principle of statutory construction and not a clause in a constitutional or statutory human rights charter. Section 32(3a) of the Firearms Act does not authorise searches of the public at large but only of those individuals who, under judicial oversight, have been found to pose an unacceptable risk to the safety of the community when in possession of firearms or firearms accessories. In terms of the qualification which is often made to human rights charters, the temporary denial of personal liberty and privacy by the search authorised by s 32(3a) of the Firearms Act can be “demonstrably justified in a free and democratic society based on human dignity, equality and freedom”.[6] The justification is found in the need to ensure compliance with FPO’s in order to protect the community from the risk which the possession of firearms by those persons poses. There is little reason to think that Parliament did not intend to authorise searches without cause for that purpose.
[6] See Charter of Human Rights and Responsibilities Act 2006 (VIC).
Turning to the evidence in this case, I agree with Peek J that the circumstances mentioned by the Judge do not have any bearing one way or another on the “reasonably required” limitation. The fact that the applicant was in a car at 2.00am in the morning does not give any reason to think that she may have been in possession of a firearm or firearm accessory. On the other hand, nor is the time of the morning a material reason for not exercising the search given that the applicant was out and about in a car at that time and that the motor vehicle had been lawfully stopped in order to question KK, who was the driver of the vehicle, about a traffic matter.
The circumstance that the applicant was in a car with a person “wanted for questioning” is also immaterial in that it gives no ground, reasonable or otherwise, for thinking that the applicant might have a firearm or firearm accessory in her possession and does not affect the proportionality consideration in any way.
However, I would not treat the references in para [9] of the Judge’s reasons to the time of the morning and the presence of a person who was wanted for questioning as suggesting that the Judge concluded that that was a reason for thinking that a firearm or firearm accessory might be found. If they were, then it was for the reasons I have given not necessary to make such a connection. They were circumstances to be taken into account to show that there is nothing disproportionate, or any abuse of the power, in searching the appellant on that particular occasion.
The following passage of the Judge’s reasons is impugned on the ground that it fails to identify the known circumstances why the search was required to ensure compliance by the appellant with the FPO:
However, there is no reason to think that the search was not reasonably required given the circumstances that [the police] encountered at that time to ensure compliance with the order. The police have not acted in any to abuse their powers in relation to the search of her person.
I do not agree. I understand that passage to make the point that there were no circumstances which brought into question the proportionality of the search, or to, in any other way suggest, that the search was an abuse of the power. I understand the concept of abuse of power in these circumstances to refer to the use of the power for a collateral purpose. The Judge’s reasons proceed on the same construction that I would give s 32(3a) of the Firearms Act. It empowers police to search persons who are subject to FPOs whenever a search is reasonably required and a search will in the absence of countervailing circumstances generally be reasonably required for no other cause than to check compliance with the FPO.
Conclusion
I grant permission to appeal and, would dismiss the appeal against conviction and the appeal against sentence.
GRAY J.
This is an application for permission to appeal against conviction and sentence.
The defendant and applicant, Natalie Ioannidis, was charged with the offence of possessing ammunition contrary to a firearms prohibition order.[7] The Information was in the following terms:
Natalie Ioannidis on the 29th day of December 2013 at Campbelltown, had in her possession ammunition, namely a three rounds of .32 calibre ammunition, whilst subject to a firearms prohibition order.
[7] Firearms Act 1977 (SA) section 10C(3).
The defendant pleaded not guilty and elected for trial by judge alone. The trial proceeded in October 2014 and the trial Judge’s verdict, and the reasons for the verdict, were delivered on 21 November 2014. The defendant was found guilty as charged.[8]
[8] R v Ioannidis [2014] SADC 198.
On 19 December 2014, the defendant was sentenced to a term of imprisonment of 12 months. A non-parole period of eight months was fixed. The sentence commenced on 21 November 2014.
Background
On 12 April 2012, the defendant was subjected to a firearms prohibition order issued by a delegate of the Registrar of Firearms pursuant to section 10B of the Firearms Act 1977 (SA). The prohibition order decreed that the delegate of the Registrar was satisfied that the defendant was not a fit and proper person to possess a firearm and that it was in the public interest to prohibit the defendant from possessing and using a firearm. In accordance with the Firearms Act and the Firearms Regulations 2008 (SA), the delegate of the Registrar imposed 12 conditions under his authority. One of those conditions was that the defendant must not possess ammunition.
In the early hours of Sunday 29 December 2013, Senior Constable Rusak and Constable Rogers were on patrol in the Campbelltown area. At about 2.00 am they were making general observations on Florentine and Alan Avenues in Campbelltown. They observed a vehicle pull away from the kerb outside premises where they understood that the defendant resided. They were aware that the defendant was regularly in trouble with the law. They proceeded to follow the vehicle. Constable Rogers conducted a registration check using the mobile data terminal in the patrol car and noted that the registered owner was flagged as being wanted for questioning in relation to traffic matters. The registered owner was recorded as Kayne Kluse. On receipt of this information, Senior Constable Rusak activated the lights on the patrol car and pulled the motor vehicle over in Spencer Street, Campbelltown.
Senior Constable Rusak had a conversation with Mr Kluse, who was driving the motor vehicle. Having recorded his personal details, Senior Constable Rusak then conducted a record of interview with Mr Kluse, which led to Mr Kluse being reported for the offence of failing to provide details of the driver of a motor vehicle on an earlier occasion. While Senior Constable Rusak was talking to Mr Kluse, Constable Rogers approached the passenger, who was seated in the front passenger seat. He recognised the passenger as the defendant. He requested the defendant produce identification as he wanted to confirm whether she was the person the subject of a firearms prohibition order. Constable Rogers observed that the defendant retrieved her driver’s licence from a handbag that was between her feet in the foot well of the vehicle. She took the licence from her purse which was in the handbag. Constable Rogers returned to the patrol car to confirm whether the firearms prohibition order was still in effect and also to check any bail conditions that may have been in existence. He confirmed that the firearms prohibition order remained in effect and then returned and requested that the defendant get out of the vehicle. Constable Rogers intended to conduct a search of the defendant and the vehicle. He wished to utilise his powers, as he understood them, under the Firearms Act to search in relation to the firearms prohibition order.
The defendant alighted and went to the footpath. By this time another patrol had arrived. Constable Rogers asked Constable Windsor to assist in the search of the defendant. He requested Constables Said and Carcuro search the vehicle. A short time later Constable Said requested Constable Rogers come to the vehicle. At that time Constable Said was at the rear of the vehicle with the defendant’s handbag on the boot. Constable Said opened the handbag and showed Constable Rogers three rounds of ammunition. The ammunition was seized. The defendant was arrested. An interview was conducted and the defendant was taken to the city watch house. She was later released on bail. Photographs were taken of the handbag and the ammunition.
The trial commenced with the taking of evidence on a voir dire as the defendant challenged the assertion that the police had power to stop the vehicle. The defendant further argued that, even if the stopping of the vehicle had been lawful, it was not lawful to search a handbag that had been in the possession of the defendant and had been left in the motor vehicle when she alighted. At the conclusion of the hearing of the voir dire, the Judge delivered the following ex tempore ruling:
In respect of the application for the exclusion of the evidence of the search I find that the search of the handbag was a part, and a lawful part, of the search of the applicant pursuant to s 32(3a) and that that search was reasonably required for the purpose of ensuring compliance with the FPO that was in place at that time.
Further, I find that in the circumstances of this case s 10C(14)(a) has application, and that if there is a finding of ammunition in the vehicle then it is presumed to be in the possession of the applicant unless she proves otherwise.
The Judge later provided detailed reasons for her voir dire ruling as part of her reasons for verdict delivered on 21 November 2014.
The parties agreed that the evidence given by Constables Rogers and Said on the voir dire would be received as evidence in the trial. As a result, the evidence tendered on the voir dire was tendered at the trial. The exhibits tendered included the three rounds of ammunition seized by the police; ten photographs, a number of which depicted the defendant’s handbag; and the firearms prohibition order dated 3 April 2012. The parties agreed that the ammunition seized was .32 calibre ammunition. These matters completed the prosecution case.
Evidence from the defendant and her father was led in the defence case. The defendant said that she was unaware that the three rounds of ammunition were in her handbag. The defendant gave evidence about the handbag and its use from time to time. Counsel for the defendant submitted that her account allowed for the opportunity for others to have placed ammunition in the handbag.
The Judge in her reasons for verdict identified the real question in the trial in the following terms:
In this case there is no dispute that the accused was subject to a FPO. That FPO had been served upon the accused on 12 April 2012 and was in force as at 29 December 2013. There is no dispute that the handbag that she had in her possession in the vehicle was found to have within it three .32 calibre bullets. This offence is committed if a person against whom a FPO is in force possesses ammunition. This offence necessarily involves an element of knowledge.
There are potentially three ways to approach this matter. The first is to consider whether I am satisfied that the prosecution have proved each of the elements beyond reasonable doubt including the element that the accused knowingly possessed the ammunition in contravention of the FPO.
The second, is in relation to the presumption in s 10C (14)(a) of the Act. It only arises if I am unable to be satisfied of the mental element beyond reasonable doubt and the prosecution have proven that she was in the vehicle when the ammunition was found. If this is so, the prosecution have the benefit of this presumption and the onus falls on the accused. If I accept, on the balance of probabilities, that the accused did not have knowledge that the ammunition was in her handbag at the relevant time and that this did not result from any failure on her part to take reasonable care to avoid the commission of the offence, she has a defence to the charge and must be acquitted.
The third, relates to the general defence in s 36A of the Act.
There is no dispute in this case that three .32 calibre rounds of ammunition were found in the accused’s handbag in the early hours of 29 December 2013. The accused admits possession of the handbag. She was a person subject to a FPO at that time; one of the conditions of the FPO was that she not possess ammunition. The only real question in this trial is her state of mind. Did she knowingly possess the ammunition which was in her handbag at that time? Possession in law means the power and the intention to exercise control over something to the exclusion of others, except those that are in joint possession of it.
[Footnote omitted. Emphasis added.]
The Judge concluded that the evidence given by the defendant lacked cogency, credibility and coherence. She described the evidence as glib and designed to fit the circumstances as the defendant perceived them. The Judge rejected as a reasonable possibility that the ammunition could have been a relic from time spent in Melbourne. The Judge rejected as a reasonable possibility that someone known or unknown to the defendant put the ammunition into her handbag shortly prior to 29 December 2013.
The Judge, when considering the question of possession and the issue of the defendant’s knowledge, summarised the relevant evidence and her conclusions as follows:
I have had regard to all the evidence and the addresses in this matter. The handbag contained a significant amount of personal possessions including a purse, keys, papers and cards. The ammunition was located in an inside fabric pocket that was not sealed and could have been used to put a mobile phone or cigarette lighter in so that it could be easily accessed by the user. The bullets although not large are very hard. They could be felt in the handbag through the fabric when the user looked for other items in the handbag. It is not clear exactly when the ammunition was placed into the handbag but there is no suggestion that it was placed into the handbag by another person whilst she was in the motor vehicle. There would have been no opportunity for Mr Kluse to have done this and the accused be unaware of it after they left the house at 2.00am. If it had occurred with her knowledge she would have been in possession in the relevant sense when it was located. Despite the fact that the ammunition is small, I find that it would have been apparent to a user of the handbag that it was in the pocket where it was located by the police. This is especially so when a person such as the accused had looked for her purse in the handbag in the dark and had to obtain her purse to produce her identification to the police when they asked for it in the early hours of 29 December 2013. The pocket from which this ammunition was retrieved was not a secret pocket, it was not in the lining. The ammunition was not secreted within the handbag.
I accept that Ms Ioannidis had been stopped by the police on many occasions and had been searched by the police on other occasions. I do not accept the assertion of her and her counsel that this means that she necessarily would have disposed of the ammunition on this morning in the ways that were suggested either by throwing it under the seat of the car or out of the window or any other way. At the time this vehicle was being followed, Mr Kluse the driver of the vehicle was in fact wanted by the police. In all likelihood there was a degree of anxiety in relation to the stopping of this vehicle by Mr Kluse and perhaps also by Ms Ioannidis. There may have been an air of resignation in relation to the inevitable finding of this ammunition in her handbag or the vehicle in the circumstances of the stopping by the police on this morning. I can think of no reason why someone in Mr Kluse’s position would have planted this ammunition upon her and neither has any explanation been given for why anyone else would have done so.
The Judge reached the following ultimate conclusion:
... I am satisfied beyond reasonable doubt that the accused was knowingly in possession of the ammunition on 29 December 2013 and that was in contravention of the Firearms Prohibition Order to which she was subject, for the reasons I have given.
The Judge considered the position if there was error in her above conclusion and reasoned:
If I am wrong about that, I am satisfied that the accused was in the vehicle in which the ammunition was located and I am not satisfied that the accused has discharged the onus to satisfy me, on the balance of probabilities, that she did not know or could not reasonably have known that the ammunition was in her handbag in the vehicle in the early hours of 29 December 2013. Nor am I satisfied that she has discharged her onus to satisfy me on the balance of probabilities that she has not committed this offence intentionally and that it did not result from any failure on the part of her to take reasonable care to avoid the commission of the offence thereby giving rise to a defence pursuant to s 36A of the Act.
Conviction Appeal
Counsel for the defendant contended that the search by the police resulting in the discovery of the three rounds of ammunition was unlawful. A challenge was made to the Judge’s conclusion on the voir dire that the search of the handbag was part of the search of the defendant, and further, to the Judge’s finding that the search was reasonably required for the purpose of ensuring compliance with the firearms prohibition order.
Counsel for the defendant took issue with factual findings made by the Judge. One finding concerned the handbag and the position of the ammunition within the handbag. The other complaint related to the finding that the defendant displayed a level of anxiety in relation to being pulled over by the police. Finally, it was contended that the Judge gave insufficient reasons for rejecting the evidence of the defendant. It was said these matters gave rise to the Judge’s erroneous conclusion that the defendant was knowingly in possession of the ammunition.
The Legality of the Search
The unchallenged evidence in the trial established that when the vehicle driven by Mr Kluse was stopped, the defendant was a front seat passenger and her handbag was between her feet. When asked for identification she reached into her handbag and retrieved her driver’s licence from a purse within the handbag. When she was directed to alight from the vehicle, she left her handbag in the vehicle.
Possession in law means the power and intention to exercise control over something to the exclusion of others, except those who are in joint possession of it.[9] The defendant was in possession of her handbag while in the car. She had the power and intention to exercise control over her handbag. When she alighted from the car at the direction of the police officer, she did not relinquish her power or her intention to exercise control over the handbag. She remained in possession of the handbag in law. The Judge was correct to conclude in these circumstances that the defendant remained in possession of her handbag at all relevant times. As a consequence, the search of the handbag was the search of the defendant and an item of property carried with her over which she had power and intention to exercise control. During the course of submissions on the appeal, counsel for the defendant accepted that the search of the defendant included the search of her handbag.
[9] He Kaw The v R (1985) 157 CLR 523.
Section 32 of the Firearms Act is headed “Power to inspect or seize firearms etc”. Subsection (1ab) provides that, where a police officer suspects upon reasonable grounds that a person has possession of ammunition that has been acquired or is held in contravention of the Act, the police officer may seize the ammunition. After conducting their search, the police were authorised to seize the three rounds of ammunition pursuant to that section. The reasonable grounds arose as a consequence of the police officer’s awareness that the defendant was subject to a firearms prohibition order and that the three rounds of ammunition were found in her handbag.
The search of the handbag was said to have been authorised by section 32(3a). That subsection provides:
A police officer may, as reasonably required for the purpose of ensuring compliance with a firearms prohibition order issued by the Registrar or to which a person is subject by order of a court—
(a) detain a person to whom this subsection applies and search the person for any firearm, licence, firearm part or ammunition liable to seizure under this section; and
(b) stop and detain a vehicle, vessel or aircraft to which this subsection applies and search the vehicle, vessel or aircraft for any firearm, licence, firearm part or ammunition liable to seizure under this section; and
(c) enter premises to which this subsection applies and search the premises for any firearm, licence, firearm part or ammunition liable to seizure under this section.
[Emphasis added].
It is to be noted that there is no requirement that the police officer “suspects on reasonable grounds”. The powers identified in subsection (3a) are conditioned differently to the other police powers under section 32 of the Firearms Act. The express statutory requirement is emboldened above.
The context of subsection 32(3a) includes section 10 of the Firearms Act. Relevantly section 10B(1) provides:
The Registrar may issue a firearms prohibition order against a person if satisfied that—
(a) —
(i)possession of a firearm by the person would be likely to result in undue danger to life or property; or
(ii) the person is not a fit and proper person to possess a firearm; and
(b)it is in the public interest to prohibit the person from possessing and using a firearm.
The power to issue a prohibition order may only be exercised in respect of a person who either is in the possession of a firearm in circumstances that give rise to a risk of undue danger to life or property, or alternatively, where the person is not a fit and proper person to possess a firearm. Further, once one of these qualifications has been satisfied, the Registrar must also be satisfied that it is in the public interest to prohibit the person from possessing and using a firearm. Section 10B(5) addresses the circumstance of the Registrar acting on criminal intelligence and provides:
If the decision to issue the order was made because of information that is classified by the Registrar as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.
It is relevant to have regard to the second reading speech, where the Minister introducing the Bill made the following observation:[10]
... [T]he Firearms (Firearms Prohibition Orders) Amendment Bill 2008 is the first step in the refocusing of firearms regulation in South Australia. It provides for increasing the powers of police in relation to violent crime involving firearms, and provides police strong powers for taking pre-emptive and compliance authority over persons who, through their own actions and history, have shown they are a menace to society and a threat to public safety. Such strong powers are complemented by development of judicial review process, and are targeted against those who have shown a propensity for the use of violence for their own ends, rather than against the legitimate legal firearms community. The bill will introduce the strongest powers available nationwide to police in South Australia to combat violent firearms related crime.
[10] South Australia, Parliamentary Debates, Legislative Council, 5 March 2008, 2057 (The Hon. P. Holloway).
Having regard to the foregoing, it may be understood that Parliament intended that police officers be able to detain and search a person for the purposes of ensuring compliance with the firearms prohibition order. Parliament provided that any police officer seeking to exercise this power could only do so in circumstances where the detention and search was reasonably required for the aforesaid purpose.
A police officer exercising the power to detain and search a person subject to a firearms prohibition order to ensure compliance may be expected to exercise the power without notice and on random occasions. However, the police officer must act reasonably. To seek to detain and search in circumstances that amounted to harassment would be unauthorised.
The Trial Judge
As extracted above, the Judge noted that the possession element of the offence necessarily requires an element of knowledge and she was “satisfied beyond reasonable doubt that the accused was knowingly in possession of the ammunition”. The Judge rejected defence counsel’s submission that the defendant was not aware of the ammunition being in her handbag and that someone could have planted it.
On appeal, counsel for the defendant submitted that the Judge erred in her findings concerning the handbag. Counsel contended that as the handbag was not in evidence it was not open to the Judge to make the inferences she did, including as to the fact that the ammunition could be felt while looking for other items in the bag. Counsel noted that the only evidence as to the handbag was to be found in the photographs and in the evidence of the defendant. Counsel submitted that the Judge failed to provide adequate reasons for rejecting the defendant’s evidence. Counsel further contended that there was no evidence to support the finding that Mr Kluse or the defendant were anxious about the police presence.
Counsel for the Director submitted that the Judge made no factual errors and that the alleged errors as to the handbag and the probable anxiety of the defendant were not crucial findings in any event.
In my view, the Director is correct in his submission. The findings made by the Judge merely added support to her overall rejection of the defendant’s case that she was not aware of the ammunition being in her bag. This overall finding was supported by other factual findings based on the defendant’s father’s evidence and the Judge’s rejection of the defendant’s evidence. It was open to the Judge to reject the defendant’s submissions that the ammunition could have been a relic from her time in Melbourne, especially considering the evidence of the defendant’s father that he checked the defendant’s items when she was taken into custody upon her return from Melbourne. It was further open to the Judge to reject the suggestion of defence counsel that the defendant, had she known she was in possession of the ammunition, would have disposed of it by throwing it under the seat or out the window of the car upon realising she was being followed by the police. The Judge was entitled to conclude that there “may have been an air of resignation in relation to the inevitable finding of this ammunition in her handbag or the vehicle”. Further, having reviewed the photographic evidence of the handbag and the evidence of Constable Said, I consider that it was open to the Judge to make the findings that she did in respect of the handbag.
In my view, there is no substance to the complaint that the Judge failed to provide reasons for the rejection of the defendant’s evidence. In Keyte,[11] when considering the reasons a Judge must provide upon hearing a criminal trial alone, Doyle CJ held:[12]
... I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[11] R v Keyte (2000) 78 SASR 68.
[12] R v Keyte (2000) 78 SASR 68, 81.
Counsel for the defendant submitted that the Judge provided no insight into the reasoning “I did not find the accused an impressive witness. I found her evidence totally lacking in cogency, credibility and coherence.” The Judge, having had the advantage of witnessing the defendant’s demeanour, was entitled to make a determination as to her credibility as a jury would. The reasons provided by the Judge were sufficient in the circumstances. Further, as counsel for the Director correctly pointed out, the Judge noted that the defendant’s evidence that she used a bumbag was contradicted by her father’s evidence.
In respect of the legality of the search as argued on the voir dire, the Judge considered that the detention and search of the defendant was lawful. In particular the Judge reasoned:
The precondition to the search is that it must be ‘reasonably required’. ‘Required’ may be defined as ‘needed’. It must be reasonable not just in the mind of the police officer but also engender that requirement in the mind of a person thinking reasonably about the need, bearing in mind the context of the powers and the civil liberties abrogated by their exercise.
The FPO includes the condition that the accused ‘not acquire, possess or use any firearm, firearm part or ammunition’. This is a standard condition of such an order. Firearms, firearms parts and ammunition are all capable of being easily concealed on the person or in bags. Indeed it might be said these are the most common ways that these items are transported.
The powers in relation to search are drawn in a very wide way in order to ensure that the police have the capacity to ensure compliance with such an order. What is “reasonably required” will be determined by the circumstances as they existed at the time.
In my view the search that was conducted on the person of Ms Ioannidis in the early hours of that morning was reasonably required for ensuring compliance with the order. Not only was it 2 o’clock in the morning but the accused was in a car with a person wanted for questioning. There was no other way for the police to ensure that she did not have possession of items contrary to the FPO other than to search her and her belongings. There is no requirement that the police have a reasonable suspicion that she is in breach of the FPO prior to searching her. Indeed to interpret the section in this way would frustrate the very intent of the legislation.
The Police acted on very limited information at the time the search was conducted. However, there is no reason to think that this search was not reasonably required given the circumstances that they encountered at that time to ensure compliance with the order. The police have not acted in any way to abuse their powers in relation to the search of her person.
[Footnotes omitted.]
I do not consider that this reasoning is open to criticism. The Judge’s conclusions were fully justified. I would grant permission to appeal and dismiss the appeal against conviction.
Sentence Appeal
The consequences of a breach of a firearms prohibition order are serious. The penalties for breaches range from maximum terms of imprisonment of between two years and 15 years. A person in breach of a prohibition order by possession of ammunition faces a maximum term of imprisonment of seven years.
When sentencing, the Judge pointed out that the firearms prohibition order was issued on 12 April 2012 following the defendant’s convictions for a number of offences. It is convenient to extract the history of that offending as referred to by the Judge:
... The first was in 2005 when you were sentenced for the offences of common assault and attempting to dissuade a witness.
On that occasion you and your co-accused went to the home of the victim. You both went into her house. The co-accused came outside at a later stage. You were inside and you punched her on a number of occasions. Whilst your victim was outside with the co-accused your co-accused also assaulted her.
These acts were all done in front of victim’s children, and the reason for this assault was apparently that this victim had made some derogatory comments about your co-accused’s partner, and that provoked you and her into doing what you did.
The other count was dissuading a witness. That related to you and two other people going to the home of the victim’s mother. You threatened that if the victim did not drop the charges, she would be killed. The victim was obviously intimidated and fearful. For these offences you were given a term of imprisonment that was suspended.
In 2009 you were convicted of the offence of possessing cannabis for sale. You and Mr Simpson were staying at a home in Elizabeth Vale. In that bedroom, a bedroom both of you occupied, a firearm was found and a large quantity of cannabis.
The cannabis was found in three large shopping bags. The three bags contained a total of 39 plastic bags, each of which contained cannabis weighing 454 g, or a pound. The police also seized a heat sealing machine, plastic bags and $535 in cash.
Although you were originally charged with the firearms offence, the DPP did not proceed against you in relation to that matter. Mr Simpson pleaded guilty to all of those matters. I have had a look at the sentencing remarks of the judge on that occasion. That refers to a very violent relationship that you had with a 28-year-old man who was associated with the bikies. He is the father of your daughter, who was aged 7 at that time. You said he was very violent towards you as well as her.
On that occasion the judge considered that a term of imprisonment was appropriate. You were given a sentence of 15 months imprisonment with a non-parole period of eight months. It was not suspended.
In addition to this you have offences of dishonesty and driving offences.
Relevant to me in relation to my penalty, you have two previous offences that relate to ammunition. The first was in 2005 when you were convicted of failing to store ammunition in a locked container. I was told that in relation to that matter you were in possession of 83 rounds of long rifle ammunition.
On 1 November 2005 you were convicted of acquiring and possessing ammunition. I was told that related to being in a vehicle and having in your handbag a single [round.]
The Judge addressed the defendant’s personal antecedents as follows:
You are now 35 years old. As I referred to earlier, you have a daughter. She is aged 12 years old. You also have had the care, to some extent, of your brother’s child, Kayla. Both of these children are presently living with your child’s father.
I was told by [counsel for the defendant] that your mother and father had engaged in a relationship, that your mother had two boys by a previous relationship when she came to live with your father. She and your father had three girls together, and of course you were one of them. You are the middle of those children.
The father of your two half-brothers was a violent man who spent lengthy periods in custody. It appears that one of your half-brothers engaged in criminal behaviour from a relatively early age and was a bad influence on you. Your brother, Mark, was involved in a car accident and was then on life support for many years before it was turned off. I have been told that this had a significant effect upon you and a significant effect in relation to the problem you later had with drugs.
You had a drug dependency over many years. You have, however, when it was possible to do so, worked. You have been involved in the construction industry and you also tried to establish a removalist business, although that was not successful after you were placed in custody in January of this year.
At the time of the offending that was before me in December 2013, you had consumed the drug fantasy, you said. It seems that you may have taken quite a large amount of it, given the effect you said it had upon you.
The Judge, having noted the maximum penalty for the offence and the important purposes of the firearms prohibition order and, having regard to the defendant’s antecedents, imposed a term of imprisonment of 12 months and fixed a non-parole period of eight months. The Judge then proceeded to address the question of suspension and in that respect the Judge reasoned:
There is no good reason for me to suspend that term of imprisonment. You have a lengthy criminal history. You have been convicted of serious offences in the past. You were well aware that the prohibition order required that you not possess any ammunition at all. You acted in blatant disregard of this order.
In the circumstances, I am not persuaded that there is good reason to suspend the term of imprisonment.
In my view, the sentence imposed was well within the sentencing Judge’s discretion. No basis has been shown to suggest that the decision to decline to order suspension should be reviewed.
As earlier noted, the defendant following her arrest on 29 December 2013 was granted police bail. However, in late January 2014 the defendant was arrested on charges relating to an aggravated serious criminal trespass. She was remanded in custody on this charge. On 17 April 2015, she entered a plea of guilty to the offence of aggravated serious criminal trespass. Sentencing submissions were to occur after the hearing of this appeal. In June 2014, the defendant was arrested and charged with the offence of blackmail. At the hearing of the appeal, this matter had been set for trial in 2016.
The defendant applied for bail in respect of the aggravated serious criminal trespass charge. The application was refused, first in the Magistrates Court, and then in the District Court, partly on the basis that at the time of the offence the defendant was subject to a bail agreement in respect of the offending the subject of these proceedings.
Counsel for the defendant referred to the fact that the defendant had been in custody since 20 January 2014. He acknowledged that her remand in custody was related to other offences. Counsel accepted that her bail in respect of the firearms offence continued. Notwithstanding these matters counsel said that the Judge erred when sentencing when not taking into account time spent in custody. In my view, there is no substance to this complaint. The Judge was entitled to have the time spent in custody since 20 January 2014 brought to account in other relevant proceedings.
Conclusion
I would grant permission to appeal against conviction and sentence and dismiss those appeals.
PEEK J. Application for permission to appeal against conviction and sentence.
The applicant was convicted after trial by Judge alone of an offence against s 10C(3)(b) of the Firearms Act 1977 (‘the Act’), being one count of possessing three rounds of ammunition contrary to a firearms prohibition order. The Judge imposed a sentence of imprisonment for 12 months, and fixed a non-parole period of eight months. The applicant seeks permission to appeal against conviction and sentence.
The facts giving rise to the voir dire hearing
In 2012, the Registrar of Firearms issued a firearms prohibition order (‘FPO’) pursuant to s 10B of the Act against the applicant who has since been subject to it.
Constable Rusak gave evidence that in the early hours of Sunday, 29 December 2013 he was driving a marked police car with his partner, Constable Rogers, in the Campbelltown area, north along the street near a house he knew to be the home of the applicant. He was aware “that she was regularly in trouble with the law” and was a person of interest. He stated that “throughout the evening if we are not directed to do anything specifically, as far as patrol tasking, we drive by addresses of interest”.[13] At about 2:00am, he saw a car pull away from outside the applicant’s house and he followed it simply because it had been at that address. Rogers then made checks which ascertained that the registered owner of the vehicle was one KK who police wished to question in relation to a traffic matter. He gave that information to Rusak who then stopped KK’s car.
[13] Officer Said who arrived in a second police car gave similar evidence.
Rusak gave evidence that his purpose in stopping the car was to ascertain if the driver was KK. He spoke to KK about the traffic matter and stated that while he was doing so he was aware that Rogers, at that same time, was talking to a passenger in the vehicle who he recognised to be the applicant, having once dealt with her previously; however, the searching of her was not his decision and he had nothing to do with it.
Constable Rogers gave evidence that he approached the passenger side of KK’s car and recognised the applicant from police photographs. He knew that she was subject to an FPO. He asked her for identification to confirm her identity. The applicant obtained her driver’s licence from her handbag between her feet in the footwell and gave it to him. He then checked her personal details on the police system and confirmed that the FPO was current.
Before Rogers asked the applicant to get out of the car, another police car arrived with two male officers, Said and Carcuro, and one female officer, Windsor. These officers had probably heard something on the radio and proceeded to the location to assist. After the arrival of the second police car, Rogers directed the applicant to exit KK’s car and asked the female officer, Officer Windsor, to search her. Officer Windsor said in cross-examination:
Q Were you asked to conduct a search of a person at that location?
A Yes, I was asked to search the female occupant of the vehicle.
Q Did you know her?
A I knew her, but I’ve never met her before.
Q You recognised her?
AYes, from photos. I don’t believe that I ever had anything to do with her before, I don’t think.
Q What was the purpose of conducting that search?
AConstable Rogers asked me to search her as she was under a firearms prohibition order.
Q Did you conduct that search?
A Yes, I did.
However, without waiting for that search to be completed, Officer Said took hold of the applicant’s handbag, searched it, and there found three .32 calibre cartridges. He later arrested the applicant. Officer Said gave the following evidence as to his search of the handbag:
QSo the other people there were going to search the car and you were just happy to go along with that?
AI can’t say for what they were doing. My intention was - when I was standing next to Rogers and he told Ms Ioannidis she was going to be subject to a search, I observed the handbag. Knowing she had an FPO, I took it upon myself to then search the handbag.
The purported justification for the search
Officer Rogers gave the following evidence in cross-examination as to the basis upon which he directed the search of the applicant:
QYou didn’t have her, at a point when you decided to search the car, under any suspicion that there were drugs in the car, did you?
A No.
Q You didn’t have any suspicion that there was a firearm in the car?
A No.
Q The only reason you searched was because of the firearms prohibition order?
A Yes.
QAt the time when you decided to search Ms Ioannidis, did you believe that there was any prerequisite that had to be met before she could be searched?
A No.
QSo your belief was that any time someone has a firearms prohibition order on them, you can just search them without anything more?
A Yes.
QIs it your practice each and every time you come across someone who has a firearms prohibition order on them to search that person?
A Yes, it is.
HER HONOUR
Q And why did do you do that?
A So to ensure they are complying with the order.
Q Is that why you searched, or had Constable Windsor search, Ms Ioannidis?
A Yes, it was.
MR GRAHAM
QWhen you asked Windsor to search Ms Ioannidis, did you know the last time that Ms Ioannidis had been searched?
A No, I didn’t.
Q So if Ms Ioannidis had been searched the day before, you wouldn’t have known?
A No.
Q If she had been searched six months before, you wouldn’t have known?
A No.
QI think you might have already answered this, but you didn’t have any information that she wasn’t complying with her firearms prohibition order?
A No.
QSo is it correct to say that you didn’t know anything about Ms Ioannidis other than she was a local person of interest and she had a firearms prohibition order?
A Yes.
Officer Rogers gave the following further evidence:
QAt the time you did that search was it your understanding that you could search as reasonably required for the purpose of ensuring compliance with the firearms prohibition order?
A Yes.
QSo at the time you believed that searching Ms Ioannidis was reasonably required for the purpose of ensuring compliance?
A Yes.
QWhen you were driving in that neighbourhood before you pulled over the car, was the reason you were in that immediate neighbourhood because Ms Ioannidis’s house was a location of interest?
A In that street, yes.
Q So the reason you were in that vicinity is because of Ms Ioannidis?
A In that street, yes.
QBefore you pulled over Ms Ioannidis’s car, did you intend to search her house for the purpose of ensuring compliance with the firearms prohibition order?
A No.
QWhilst the searching of Ms Ioannidis’s person was reasonably required for the purpose of ensuring compliance, but searching her house wasn’t?
AYes, at the time because I located her out and about in the early hours of the morning.
QYou said that you understood that you had the power to search both Ms Ioannidis and the car she was in?
A Yes.
QWhen did you get that understanding about your powers with respect to a firearms prohibition order?
A Just in general conversations with other work mates.
Q So you never had a training course on it or anything like that?
A Not since the academy.
Q When were you in the academy?
A Five years ago.
Q So 2009?
A Yep.
QIf you were taught about firearms prohibition orders, you can’t remember what was said about them then?
A It would have been a very brief thing. I can’t remember exactly, no.
QSo your understanding about what your search powers were were just from talking with other police officers?
A About the firearms prohibition order, yes.
Q Can you remember which police officers?
A No.
Q Just general chitchat amongst your work colleagues?
A Work colleagues, partners, sergeant.
Officer Said gave the following evidence as to his familiarity with the provisions of the Firearms Act 1977 concerning FPOs:
Q So you were aware Ms Ioannidis had a prohibition order against her?
A That’s correct.
QDo you know what power it was exactly that was going to be used to conduct that search?
A I just know that we can search persons under the firearms prohibition order.
Q You can search persons?
A Yes.
Q Can you search anything else?
A Yes, we can search the vehicle.
Q And anything else?
A And also a premise.
As to his understanding of his power under the Act to search a person subject to an FPO, Officer Said gave the following evidence in cross-examination:
QNow, when you searched the car was it your understanding that the car and Ms Ioannidis were able to be searched without anything more, just because you had a prohibition order?
A Yes.
QIt wasn’t your understanding that a search has to be reasonably required for the purpose of ensuring compliance with the prohibition order?
AI believed at the time if someone was - had a prohibition, firearms prohibition order against them that we could search them and the car that they were in.
QWhat about whether it needed to be reasonably required for the purpose of ensuring compliance with the order?
A Yes.
Q You understood that at the time when you did the search?
A Yes.
QYou’re not just agreeing with me because I’m putting those words to you, that it might need to be reasonably required?
AI may not have understood it in those exact terms. I knew we searched to make sure they were in compliance with the firearms prohibition order, they weren’t having any breaches against that.
QWhy was the search at that point, to require that Ms Ioannidis was complying with the order?
A Make sure she didn’t have anything, any ammunition or firearms in her possession.
QDid you have any reason to believe she might have any firearms on her at that point?
A No.
QDid you have any reason to believe she might have ammunition on her at that point?
A No.
Q You didn’t have any suspicion that she had drugs on her at that point?
A No.
QEvery time you come across someone who has a firearms prohibition order, is it your practice to search them?
A Yes.
Q You don’t check to see whether they have been searched the day before?
A No.
QOn this occasion you don’t know whether Ms Ioannidis had been searched the day before?
A No, I didn’t.
Q You wouldn’t have a clue if she had been searched in the past?
A No.
QSo the only reason you searched the car on this occasion was because you saw Ms Ioannidis get out of the car and you knew she had a firearms prohibition order?
A Yes.
Later, the Judge raised with Officer Said the question of there being any SAPOL policy in relation to this matter:
Q Is there a policy in SAPOL of searching people who have the prohibition order?
A There’s no policy that I’m aware of.
Officer Carcuro gave the following evidence in cross-examination:
QRogers told you to search the vehicle, which is why you searched the vehicle; is that correct?
AIn conversation with him I was aware Ms Ioannidis was subject to a firearm prohibition order.
Q You were aware Ms Ioannidis was the passenger in the car?
A Yes.
QDid you think that because Ms Ioannidis was a passenger in the car you were allowed to search the car under a firearms prohibition order?
A Yes, I did.
Q Why did you believe that?
AI was under the impression and I thought that’s what I could do through speaking with other police officers and through learning.
QIs it still your understanding that you can search a vehicle because a passenger in the car has a firearms prohibition order?
A Yes, it is.
The Judge’s ruling on the voir dire and verdict at trial
The Judge held that the search of the applicant and her handbag was carried out pursuant to s 32(3a) of the Act and was “reasonably required for the purpose of ensuring compliance with the FPO” applicable to the applicant. Her Honour admitted the evidence. I return to her Honour’s reasons below.
The Judge proceeded to hear the trial proper. The admission of the above evidence triggered the operation of a reverse onus provision pursuant to s 10C(14)(a) of the Act. The applicant gave evidence that she was unaware of the presence of the ammunition and that it was possible that another person had placed them in her handbag without her knowledge. The Judge disbelieved her, found that she was in possession of the ammunition and convicted her of the charge.
The appeal against conviction
There were eight grounds of appeal but I consider it necessary only to consider the first, which is as follows:
1. The Learned Trial Judge erred by finding that the search which resulted in discovery of the three rounds of ammunition was lawful and in particular:-
i.That the search of the handbag was part of the search of the appellant.
ii.That the search was reasonably required for the purpose of ensuring compliance with the firearms prohibition order.
This ground requires a close examination of the statutory powers to detain and search a person who is reasonably suspected of being subject to a firearms prohibition order and the correct approach to the exclusion of evidence procured by police conduct not justified by that power.
The making and imposition of a Firearms Prohibition Order
Under part 2A of the Act, a person may be made subject to an FPO in three ways. First, a police officer may issue an interim FPO pursuant to s 10A(1) of the Act.[14] Second, the Registrar of Firearms may issue an FPO pursuant to s 10B(1) of the Act which provides:
[14] Such an order expires after 28 days and the powers under s 32(3a) do not apply to an interim FPO.
10B—Firearms prohibition order issued by Registrar
(1) The Registrar may issue a firearms prohibition order against a person if satisfied that—
(a) —
(i)possession of a firearm by the person would be likely to result in undue danger to life or property; or
(ii) the person is not a fit and proper person to possess a firearm; and
(b)it is in the public interest to prohibit the person from possessing and using a firearm.
Third, a court may order that a person be subject to an FPO pursuant to s 299A(1)(g)(i) of the Criminal Law Consolidation Act 1935 which provides:
299A—Orders as to firearms and offensive weapons
(1) Where a court is satisfied by evidence adduced before it that—
(a)a firearm or other offensive weapon was used in the commission of an offence; or
(b)the commission of an offence was facilitated by the use of a firearm or other offensive weapon; or
(c)in the circumstances it is expedient that an order or orders be made under this section,
the court may make any one or more of the following orders:
...
(g) an order—
(i)that a specified person is subject to a firearms prohibition order under the Firearms Act 1977 until further order; or
...
The second and third categories of orders constitute the Firearms Prohibition Orders to which s 32(3a) of the Act applies.
The effect of the making and imposition of a firearms prohibition order
Section 10C of the Act specifies the effects of the imposition of a FPO thus:
(1) A person to whom a firearms prohibition order applies is disqualified from obtaining any licence or permit under this Act.
(2) While a firearms prohibition order is in force against a person—
(a)any licence or permit under this Act held by the person is suspended; and
(b) section 31A does not apply.
(3) A person against whom a firearms prohibition order is in force must not acquire, possess or use a firearm, firearm part or ammunition.
Maximum penalty:
(a) in the case of a firearm—$75 000 or imprisonment for 15 years;
(b)in the case of a firearm part or ammunition—$35 000 or imprisonment for 7 years.
(4) If a firearms prohibition order comes into force against a person, the person must forthwith surrender to the Registrar all firearms, firearm parts and ammunition owned by the person.
Maximum penalty:
(a) in the case of a firearm—$50 000 or imprisonment for 10 years;
(b)in the case of a firearm part or ammunition—$20 000 or imprisonment for 4 years.
Sub-sections 10C(5) to (13) create further offences comprising: first, offences by persons subject to an FPO, the elements including a proscribed degree of connection with specified classes of persons, associations and locations; and second, offences by persons not subject to an FPO, the elements including a proscribed degree of connection with persons who are subject to an FPO.
Section 32 of the Act: Conferral of police seizure, detention and search powers
Section 32 of the Act confers upon police officers, seizure, detention and search powers, which may be summarised as follows.
Police seizure powers conferred by s 32
Section 32 confers on police officers powers of seizure of items comprising: firearms, ammunition and other specified items by reference to the following various descriptions of the status of specified items:
·[s 32(1)] A firearm that a police officer suspects on reasonable grounds to have any of the types of status set out in any of s 32(1) placita (a) to (e) inclusive, and
·[s 32(1aa)] A firearm or firearm item of a type described in s 32(1aa) that a police officer suspects on reasonable grounds to be in possession of a person in contravention of the Act, and
·[s 32(1ab)] Ammunition that a police officer suspects on reasonable grounds is in possession of a person and has been acquired or held in contravention of the Act, and
·[s 32(1ac)] A firearm, firearm part or ammunition that a police officer suspects on reasonable grounds to be in possession of a person in contravention of any of s 32(1ac) placita (a) to (g) inclusive, and
·[s 32(1a)] A licence that a police officer suspects on reasonable grounds to have any of the types of status set out in any of s 32(1a) placita (a) to (e) inclusive (and which is not produced after a requirement for production is made by a police officer)
The above items are compendiously referred to in the succeeding subsections of s 32 as “liable to be seized under this section”.
Police stopping, detaining and search powers conferred by s 32
Section 32 confers on police officers powers of inspecting, stopping, detaining and searching in relation to items “liable to be seized under this section”. It does so by reference to the following various descriptions of specified situations:
·[s 32(2)(a)] Powers of stopping, detaining and searching any vehicle, vessel or aircraft on which a police officer suspects on reasonable grounds there is an item “liable to be seized under this section” of the type specified in s 32(2)(a), and
·[s 32(2)(b)] Powers of stopping, detaining and searching any person who a police officer suspects on reasonable grounds has possession of an item “liable to be seized under this section” of the type specified in s 32(2)(b), and
·[s 32(2a)] A power of inspection as to firearms being kept secure, and
·[s 32(3)(a)] Powers of entry and search of premises in which a police officer suspects on reasonable grounds there is an item “liable to be seized under this section” of the type specified in s 32(3)(a), and
·[s 32(3)(b)] Powers of entry and search of premises in which a police officer suspects on reasonable grounds is kept a firearm contrary to the security requirements of the Act
Additional police powers as to persons suspected of being subject to an FPO
In South Australia v Totani, French CJ stated:[40]
Applying the “principle of legality”, courts will, of course, construe statutes, where constructional choices are open, so as to minimise their impact upon common law rights and freedoms. That principle, well known to the drafters of legislation, seeks to give effect to the presumed intention of the enacting Parliament not to interfere with such rights and freedoms except by clear and unequivocal language for which the Parliament may be accountable to the electorate. Save to the extent that it imposes something approaching a formal requirement of clear statutory language, the principle of legality does not constrain legislative power.
[40] (2010) 242 CLR 1, 28-9 [31].
In Lee v New South Wales Crime Commission, French CJ stated:[41]
[29] A statute said to affect important common law rights and procedural and other safeguards of individual rights and freedoms will be construed “as effecting no more than is strictly required by clear words or as a matter of necessary implication” …
[41] (2013) 251 CLR 196, 217.
And Crennan J there stated:[42]
[126] In some cases, a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity. An underlying legislative object is not necessarily to be achieved at any cost, but commonly by striking a balance between competing interests. (Emphasis added)
[42] (2013) 251 CLR 196, 250.
In the present case, the choice by Parliament to use the statutory condition precedent rather than the more draconian alternatives (as analysed above) confirms that the Parliament did indeed intend there to be a compromise between fair and effective enforcement of the legislation and the retention of fundamental rights as far as possible.
Submissions by the respondent
I understand the respondent to submit that police may make random searches of persons subject to an FPO for no reason other than that they have that status because, it is said, this is the only way of checking whether such persons are adhering to the regime imposed by the FPO.
The answer to any such interpretation of the legislation lies within the principle of legality. To vest absolute, unrestrained power on quite junior police officers[43] to detain and search, multiple times in successive days if they wish, a person of any status, is a massive sweeping aside of fundamental common law rights and freedoms. The words “reasonably required for the purpose of ensuring compliance with a firearms prohibition order” are present in the legislation not to authorise such a structural change but rather, to delineate the requirement that there must be demonstrated circumstances in the particular case which positively require police action.
[43] It will be quite junior police officers who will most encounter while on patrol persons subject to an FPO, as was the situation in the present case.
There was also what appeared to be a submission that purely random searches may be justified by reference to general administration of all firearm prohibition orders on, I assume, some basis of general prevention or general deterrence of all persons subject to firearms prohibition orders.
As noted above, the statutory passage “reasonably required for the purpose of” is used twice as a condition precedent in the Act, first in s 6B and then in s 32(3a). In s 6B (as discussed above), the condition precedent governs the power of the Registrar which is only to be used by reference to considerations pertaining to the individual under consideration. In s 32(3a), the condition precedent governs the power of a police officer, which again is only to be used by reference to considerations pertaining to the individual under consideration.
Further, the words used in s 32(3a) addressed to ensuring compliance with “a firearms prohibition order” are in the singular and, in my view, designedly so. There are many decisions on statutory provisions dealing with the singular and plural forms of words,[44] but as Gaudron and Gummow JJ noted in Walsh v Tattersall, it is not a matter of simply referring to s 22 of the Acts Interpretation Act 1915. Their Honours there stated:[45]
[44] See DC Pearce and RS Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014).
[45] (1996) 188 CLR 77, 90-1.
Section 22 of the Acts Interpretation Act 1915 (SA) states:
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
Section 26 of that statute provides:
In every Act -
...
(b)every word in the singular number will be construed as including the plural number;
(c)every word in the plural number will be construed as including the singular number; "
Speaking of comparable provisions to those of s 26 set out above, the Privy Council said in Blue Metal Industries Ltd v Dilley:
Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
If that course be followed with the Act, then the result is that the appellant was not charged with an offence created by the Act. The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms used in s 120(1)(a), and not otherwise. A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of “payments or benefits” which were made under the Act and obtained by dishonest means.
So here, construed against the background of the principle of legality, the Act displays an intention to condition the exercise of police power by reference to the circumstances “reasonably requiring police action for the purpose of ensuring compliance with a firearms prohibition order” being the FPO applying to the person against whom action is contemplated.
For all of the above reasons, I conclude that the Judge failed to exercise the discretion on a correct construction of the legislation and took into account matters which were not relevant to the exercise of her discretion. The discretion must therefore be re-exercised.
Re-exercising the discretion to exclude evidence
I commence consideration with the well-known words of Lord Justice-General, Lord Cooper in Lawrie v Muir:[46]
From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict—(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the utmost.
[46] [1950] SLT 37, 39-40.
In R v Ireland,[47] the centre piece of the judgment of Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ each concurred) was the phrase unlawfulness or unfairness by police officers. Thus his Honour stated:[48]
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.
[47] (1970) 126 CLR 321.
[48] (1970) 126 CLR 321, 335.
In Bunning v Cross, Stephen and Aickin JJ said of this passage:[49]
That statement represents the law in Australia; it was concurred in by all other members of the Court in Reg v Ireland and has since been applied in a number of Australian cases.
[49] (1978) 141 CLR 54, 72.
Of course, Bunning v Cross involved police officers directing a motorist to take a breath analysis test on the basis of his behavior which positively indicated impaired ability to drive; their error was that they should have first required the defendant to take a preliminary alcotest and then relied on a positive alcotest result to require the breath analysis. It was in that context that their Honours stated that unfairness to the accused is “only one factor which, if present, will play its part in the whole process of consideration” of discretionary exclusion.[50] But importantly for present purposes, their Honours went on to observe:
[T]he discretionary process called for in Ireland … applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon CJ put it in Wendo’s Case,[51] unlawful or improper conduct). (Emphasis added)
[50] (1978) 141 CLR 54, 74-75.
[51] Wendo v The Queen (1963) 109 CLR 559, 562.
Thus, it was made clear that the impugned police conduct may be unfair, unlawful or improper. The breadth of this aspect of the discretion has since been emphasised by members of the High Court in Cleland v The Queen,[52] Ridgeway v The Queen,[53] and Nicholas v The Queen[54] and most recently by this Court in R v Rockford.[55] As an example, in Nicholas v The Queen, McHugh J stated:[56]
Although the Bunning v Cross discretion was originally established in relation to “real” (non-confessional) evidence which had been obtained unlawfully, in the light of subsequent decisions of this Court, including Ridgeway, the discretion now extends to the exclusion of confessional evidence and to evidence which has been improperly obtained or unlawfully or improperly created. (Emphasis added; citations omitted)
[52] (1982) 151 CLR 1, 19-20 (Deane J).
[53] (1995) 184 CLR 19. Mason CJ, Deane and Dawson JJ stated at 41-42: “The critical question was whether, in all the circumstances of the case, the considerations of public policy favouring exclusion of the evidence of the appellant’s offence, namely, the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement, outweighed the obvious public interest in the conviction and punishment of the appellant of and for the crime against s 233B(1)(c) of the Act of which he was guilty.” (Emphasis added)
[54] (1998) 193 CLR 173. Both Brennan CJ at 195 [33] and McHugh J at 216 [100] specifically endorsed the approach of Deane J in Clelandv The Queen (1982) 151 CLR 1 at 19-20.
[55] (2015) 122 SASR 391, 398 [32].
[56] (1998) 193 CLR 173, 216.
Aspects of the evidence
First, as at 29 December 2013 quite junior officers were being left to their own devices when they had no specific taskings. One way in which such time was spent was in driving around the patrol area, checking the homes and vehicles of so called “persons of interest”. It would appear that at least in relation to persons subject to an FPO, they had no oversight and no policy guidelines.
Second, Rogers who instigated the search (and it would appear all of the other officers present) had a practice of each and every time that he came across a person subject to an FPO, to search that person. He considered it irrelevant whether, and when, such a person had been previously searched (and, in the present case, had no idea whether the applicant had, for example, been searched the previous day).
Rogers asserted that he understood that he had the power to do this, but such “understanding” was based merely on “general conversations with other work mates”. He was unable to name one such person. He stated that he had never had a training course on such matters since he had been in the police academy in 2009.[57] When asked by the Judge as to whether there is a SAPOL policy of searching people who have the prohibition order, he replied “There’s no policy that I’m aware of”.
[57] Since the amendment which inserted s 32(3a) in the Act only came into effect in November 2008, it is highly doubtful that that subsection would have featured prominently in Academy activities in 2009.
Third, the two male officers were going to search the applicant in any event and the arrival of a second police car containing the female officer Windsor was happenstance. Since Windsor was present, she was directed to undertake the search of the applicant’s person, but it is notable that the male officer Said took it upon himself to pick up and go through the female applicant’s handbag rather than handing it to Windsor for her to search it. It is quite clear that matters such as invasion of the privacy of a female person subject to an FPO were simply never adverted to by any of the officers present.
In R v Nguyen,[58] this Court (Kourakis CJ, Blue and Stanley JJ) was dealing with a power, the condition precedent to the exercise of which was the formation of a reasonable suspicion. The condition precedent to the powers presently under consideration is different in content, but it is equally important that it must be satisfied. The Court there stated in words with great resonance in this case:[59]
[40] Constable Koch’s view of the scope of the powers conferred by s 52(6) and s 52(9) of the CSA greatly exceeds their true limits. It is a view which is calculated to lead to widespread and arbitrary infringements on civil liberties. The testimony of Constable Koch well illustrates that danger. On Constable Koch’s attitude, power designed to facilitate investigations can readily be misused as instruments of harassment. No evidence was adduced to show that the mistaken understanding of the breadth of the powers shared by Constables Koch and Beatty was a peculiar or isolated one.
[41] It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and s 52(9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.
[42] The Court exercises its discretion to exclude the evidence of the appellant’s possession of heroin and methylamphetamine on 30 July 2011. We do so because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA.
[58] (2013) 117 SASR 432.
[59] (2013) 117 SASR 432, 442-3.
In the later decision in relation to a different appellant of the same name in R v Nguyen,[60] this Court (Peek, Blue and Bampton JJ) again had occasion to consider the recurring problem of police officers exercising powers which are severely invasive of the liberty of the individual without any adequate understanding of the conditions to the exercise of such powers. The Court there stated:
[60] [2015] SASCFC 7.
[36] The factors weighing against exclusion of the evidence identified by this Court in R v Nguyen apply equally here:
The evidence of the appellant’s possession was cogent, indeed overwhelming, evidence of the commission of serious offences. The infringement of the appellant’s civil liberties was moderate. The unlawful entry was limited to the common driveway of the home unit. The Laser was only detained after it had already come to a stop. Those considerations tell against the exclusion of the evidence.
[37] On the other hand, as noted above, Detective McFarlane did not address her mind to the relevant question whether she held a reasonable suspicion that there were drugs in the possession of the appellant at the time she was driving the Commodore. Her conduct in detaining and searching the Commodore and the appellant demonstrated a fundamental misconception about the state of mind she was required to form as a prerequisite to exercising those powers. Her focus was upon the house and the vehicle as having a general or historic association with drugs and not upon the appellant as an individual. It was the appellant’s civil rights as an individual that were infringed.
[38] It is apparent from the evidence given by Detective McFarlane that she considered that she was at liberty to exercise the compulsive powers conferred by subsections 52(6) and (9), merely because an unknown person is driving a vehicle in which drugs have historically been found and because the vehicle emerged from premises associated with drugs, regardless of any connection between the driver and either the person historically found in possession of drugs in the vehicle or the persons residing in the house.
[39] As in R v Nguyen, no evidence was adduced to show that Detective McFarlane’s mistaken understanding of the breadth of the powers conferred by the Act was a peculiar or isolated one. It appears that detectives assigned to drug-related investigations do not receive comprehensive training identifying the requisite reasonable suspicion required to be held before the powers of detention and search conferred by the Act are enlivened or about matters capable of comprising reasonable grounds to found such a suspicion.
[40] The following observation of this Court in R v Nguyen is apposite in this case:
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.
[41] We exercise the discretion to exclude the evidence that resulted from the unlawful search of the appellant.
In the recent decision in R v Rockford,[61] Stanley J (with whom Kourakis CJ and Sulan J concurred), noted the development of the public policy discretion to exclude evidence that had been improperly or unlawfully obtained. In Rockford, the trial Judge had found that evidence had been improperly or unlawfully obtained but had exercised his discretion to nevertheless admit it. The trial Judge had said:[62]
[T]he investigating police officers did not deliberately exceed their authority, but rather proceeded on a genuine, if mistaken, view as to the extent of their authority.
The cogency of the evidence discovered as a result of the search had not been affected by any illegality or impropriety, and the evidence sought to be impugned is of obvious significance to the prosecution case.
…
However, having regard to the cogency of the evidence, the fact that the approach by the officers arose, as I have found, as a result of an honest misunderstanding about the right to initially enter the premises, rather than a deliberate flouting of such powers, the fact that the illegality of the search did not contaminate the evidence, and the seriousness of the offences disclosed as a result, I conclude that, in the exercise of my discretion, the application should be refused, and the evidence admitted.
[61] (2015) 122 SASR 391.
[62] (2015) 122 SASR 391, 397 [27].
On appeal, the Court set aside this exercise of discretion, exercised the discretion afresh and excluded the evidence. Stanley J stated:[63]
[63] (2015) 122 SASR 391, 401-402.
[38] In exercising the discretion, the judge properly considered the seriousness of the offending, the cogency of the evidence and its probative importance to the prosecution, and his finding that the investigating police officers did not deliberately contravene the law in entering the property to undertake their search. In weighing these factors, the judge acknowledged the risk that treating cogency of evidence as a factor favouring admission where the evidence is obtained unlawfully may serve to engender the erroneous view that, if evidence is damning enough, that factor will outweigh the illegality involved in obtaining it, thereby rendering meaningless the common law and statutory limitations on the exercise by law enforcement authorities of the powers of search and entry.
[39] The factors considered by the judge were relevant to the exercise of the discretion. They weigh in favour of the admission of the evidence obtained as a result of the unlawful search and entry. However, in my view, the judge failed to have regard to what Deane J describes in Pollard as the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which 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. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it 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 and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[40] The failure to consider this relevant factor evidences error in the exercise of the discretion. It leaves the discretion to be considered afresh by this Court. In my view, while the considerations favouring the admission of the impugned evidence are strong, the considerations favouring the exclusion of that evidence are stronger.
[41] The right of a citizen to be protected from unlawful search and entry is an important civil right in our society. As this Court said in R v Nguyen, it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. From the moment of their entry onto the property the police were engaged in a search. Recourse to euphemisms by the police does not alter that fact. The erroneous views of Detectives Hanssen and Moore of the scope of their powers of entry represent 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.
…
[44] While the judge found the contravention of the law in this case was not deliberate, it is relevant that senior and experienced police officers not only had a mistaken understanding of their legal duties and obligations in undertaking the vital and important work of criminal investigation but they persisted in adhering to this mistaken view of their powers at the time of trial. That suggests that this mistaken understanding of the breadth of police powers, and the nature of the limits upon them, is not idiosyncratic or isolated to these officers.
[45] The respondent submits that this was a case of unlawfully procured evidence of a crime which had already been committed rather than a case where the crime would never have been committed but for the unlawful conduct of the police. In accordance with the reasons in Ridgeway, the factors favouring exclusion of the evidence in circumstances such as these are “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 the police.
[46] I am unpersuaded by this submission. The High Court’s observation to this effect in Ridgeway merely represents a relative comparison of two contrasting circumstances. To note that the case for exclusion of evidence is less compelling in the former rather than the latter circumstance says nothing about whether the court should exercise the discretion to exclude the evidence in the former circumstance. Clearly, Bunning v Cross is authority for the proposition that whether the argument for exclusion is less compelling in the former than the latter case does not preclude a court exercising the discretion to exclude the evidence in the former case.
[47] I would exclude the evidence. I do so because I consider it necessary, as it was in R v Nguyen, to censure the excesses of police powers by which the evidence was obtained in order to better secure compliance with the limitations on the exercise of the powers of search and entry conferred on police. In addition, I consider it necessary so that the administration of criminal justice is not brought into disrepute by statements of judicial disapproval of the unlawful procuring of evidence by police appearing hollow and insincere.
For the reasons indicated in decisions such as R v Nguyen,[64] R v Nguyen[65] and R v Rockford,[66] the evidence of the finding of the ammunition should here be excluded so as to emphasise the Court’s concern that police officers who are entrusted with powers which abrogate fundamental liberties be properly trained concerning, and pay close attention to, the conditions that must be positively satisfied before such powers are exercised.
[64] (2013) 117 SASR 432.
[65] [2015] SASCFC 7.
[66] (2015) 122 SASR 391.
The evidence being excluded, there is no case for the applicant to answer. I would grant permission to appeal, I would allow the appeal, quash the conviction and enter verdict and judgment of acquittal.
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