R v Kassapis - [2010] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KASSAPIS
[2010] SADC 145
Ruling of His Honour Judge Rice
26 November 2010
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS
Execution of a s 52 Controlled Substances Act warrant - address on the warrant was for the property next door - police searched the wrong address in the bona fide belief that they were searching the address nominated in the warrant - search and seizure illegal - discretion exercised in favour of admission.
Controlled Substances Act 1984 ss 32(3), 33(3) and 52, referred to.
Bunning v Cross (1978) 141 CLR 54; R v Stankovich [2004] ACT SC 93; Gibson v Ellis (1992) 59 SASR 420; R v Fazio (1997) 69 SASR 54; R v Romeo (1982) 30 SASR 243, considered.

R v KASSAPIS
[2010] SADC 145
Introduction

The accused is charged with two offences, Trafficking in Methylamphetamine and Manufacturing a Controlled Drug contrary to ss 32(3) and 33(3) of the Controlled Substances Act 1984 (“the Act”) respectively.
A Rule 9 application was filed seeking the exclusion of all evidence seized by the police on 13 December 2007. The prosecution case was completely reliant upon the evidence seized upon the search such that, if the application is successful, the case could not proceed.
Rule 9 application
As mentioned, the application seeks the exclusion of all evidence seized by the police upon a search conducted on 13 December 2007.
The factual and legal basis for the application can be stated quite briefly. Detective Sergeant B. Hall sought and obtained the issue of a warrant pursuant to s 52 of the Act to search No. 265 Nelshaby Road, Napperby. This was a rural property about six or seven kilometres from Port Pirie. As it transpired, the property searched was No. 299 Nelshaby Road. No. 265 and No. 299 Nelshaby Road are immediately next door to each other and No. 265 is owned by the accused’s father.
In short, there was no challenge to the validity of the warrant. According to the evidence, and on its face, it was a valid warrant for the search of No. 265 Nelshaby Road. However, the property searched, and from which there were relevant seizures, was No. 299. On that basis, the application asserts that the search and seizure of items of evidence from No. 299 was illegal and should be excluded. It was submitted that the illegality was so serious that public policy considerations favoured exclusion notwithstanding the availability of a discretion to admit it.
Conduct of the voir dire
I granted the application and conducted a voir dire hearing to determine the admissibility of the evidence. The prosecution agreed to be dux litis even though the application was based on a discretionary exclusion. I received into evidence all of the declarations, evidence called upon the grant of a Rule 20 application in the Magistrates Court, exhibits and evidence from two police officers called before me. The accused declined to give or call any evidence despite assertions put in cross-examination before me.
Factual background from the evidence
Detective Sergeant Hall received information that the accused, Peter Kassapis, was involved in amphetamine dealing and production. Detective Sergeant Hall was told that the accused had been involved in the illicit drug trade for some time. He ascertained he had prior convictions for Controlled Substances Act related matters and also offences relating to the Firearms Act.
Importantly, in addition to receiving some information about the accused, Detective Sergeant Hall took the informant close to the property and the informant confirmed that that property was where the illegal activity of the accused was based. That was the property that Detective Sergeant Hall always intended to search and it was that property that was in fact searched. As noted, the trouble was that that property was No. 299 Nelshaby Road, not No. 265.
Detective Sergeant Hall ascertained the address of No. 265 Nelshaby Road, Napperby as being the address of the accused by searching a police computer database known as the PIM system or Personal Information System. I accept that the PIM system gave the address of the accused as being No. 265 Nelshaby Road. I also accept that Detective Sergeant Hall believed that to be his address and believed that that address coincided with the property indicated by the informant.
On that basis, on 12 December 2007, Detective Sergeant Hall sought the issue of a Warrant to Enter Premises from Chief Inspector Goodwin pursuant to s 52 of the Act. Detective Sergeant Hall explained his suspicions on oath to Chief Inspector Goodwin relating to what he (Hall) believed to be the correct address, namely, No. 265 Nelshaby Road. The Chief Inspector was satisfied about the requirements of s 52 and that the warrant was reasonably required in the circumstances. The Warrant to Enter was signed on 12 December 2007 for No. 265.
Something needs to be said about the effort made by Detective Sergeant Hall to ascertain the address of the accused because all of the officers who attended on the search and seizure depended upon the lawfulness and correctness of this warrant. Detective Sergeant Hall’s enquiries were quite perfunctory. He went no further than to seek an address from the PIM system, without doing a Lands Titles Office, local council or utilities search. There was adequate time to attend to those searches, although it is simply unknown what the results would have been.
Having said that, a Lands Titles Office search would not have disclosed No. 299 Nelshaby Road as the accused’s address, but it would have shown Allotment 567 Nelshaby Road which would have been accurate.
The search and seizure took place on 13 December 2007. There were a number of briefings between officers that morning at Port Pirie before going to Napperby. As noted, it is clear that all officers relied upon the correctness of the warrant in describing No. 265 as being the target address.
The officers attended what they all believed was No. 265 Nelshaby Road. Entry was forced when no-one responded to knocks on the door. As anticipated, the accused was present. At one stage, the accused was escorted outside but later rushed back inside and went under the bed in his bedroom. The officers pulled him from under the bed despite his efforts to resist them doing so. The evidence is open to the inference that he was attempting to dispose of methylamphetamine that was found in a container under the bed. He was arrested, handcuffed and later conveyed to the Port Pirie Police Station where he was charged with a number of offences, particularly drug related offences.
A question arose on the voir dire as to whether the warrant was shown to the accused. Although Detective Sergeant Hall had no memory of doing so, he said (on a number of occasions) that he believed he did so because that was his normal and everyday practice. The argument against that was if it had been shown to the accused he would have immediately realised and protested that they were searching an address different to that which was authorised. Because no‑one suggested the accused did react in such a way, the conclusion was to be inferred that he was not shown it. In the absence of any evidence from the accused, that is not a conclusion to which I am able to come. From the evidence, I infer he was shown it. Whether he read it properly or at all, is not known.
Was the search illegal?
The warrant on its face is a valid warrant. It was issued to search the premises nominated in the application for it. The issuing officer was properly authorised to issue it.
What is plain is that the officers searched the premises that were intended to be searched, but those premises were not the premises nominated in the warrant, but the premises next door. I accept that all of the officers acted in a bona fide manner. Detective Sergeant Hall made an error that, with proper care, should have been avoided. He failed to exercise that proper care.
In my view, the search was illegal and any seizure pursuant to that search was also illegal.
The remaining question is whether the evidence should be admitted notwithstanding the illegality.
Exercise of the discretion
The authorities, particularly Bunning v Cross[1], make it clear that, in a situation such as this, there are competing considerations.
[1] (1978) 141 CLR 54
The first factual matter to observe favouring exclusion of the evidence in the exercise of the discretion is that Detective Sergeant Hall had more than an adequate period of time to properly investigate the correct address. As observed, his efforts were quite perfunctory.
Second, viewing the matter more broadly, the procedure authorised by the Controlled Substances Act authorises what would otherwise be unlawful at common law. In this regard, I refer to the authorities and principles to which Justice Spender referred in R v Stankovich[2].
[2] [2004] ACT SC 93 (paras 12-17)
Third, on the facts, this was a significant intrusion. Not only did the police enter the property without proper authority, there was a forceable entry and later handcuffing of the accused.
There are other factors that support a favourable exercise of the discretion for the admission of any evidence seized during the search.
The first is that the officers were bona fide in their belief that the premises that were searched were the premises authorised to be searched.
Second, the premises searched were the premises always intended to be searched. The officers believed, especially Detective Sergeant Hall, that the warrant he obtained pertained to the premises he intended to search. In that sense, the illegality was unintended or accidental and certainly not deliberate or contumelious.
Third, the cogency of the real evidence remains. These are very serious offences and the real evidence seized comprises the case.
In my view, those factors favour admission of the evidence notwithstanding the illegality. I exercise my discretion accordingly.
There is one final factor that is more contentious. It is also plain from the evidence that one of the police officers involved in the search, Detective Sergeant MacRae, was in possession of a valid General Search Warrant (GSW) on the day of the search. He said in evidence (p 44) that he was able to exercise his GSW in relation to the entry and that he formed the requisite belief at the time of the briefing prior to the search. However, he did not purport to exercise his GSW because he believed he had a valid Controlled Substances Act warrant.
That Detective Sergeant MacRae would undertake the mental process of determining whether there was enough for the use of a GSW, is not surprising. He is an experienced officer and a necessary part of his everyday duties is to consider and assess his range of powers. Having said that, I propose to consider the use of the GSW as a legal option that was open to the officers but not adopted because they believed they had another valid warrant.
The primary issue is whether the possession of a valid GSW that could have been employed to make the search and seizure valid but was not used, is a proper factor to take into account in favour of the admission of this evidence.
The first question is whether a GSW itself could have been used to search for drugs for the purposes of the Controlled Substances Act. Two authorities support either the use of a s 52 warrant or a s 62 Summary Offences Act (GSW) in this situation: Gibson v Ellis[3]; R v Fazio[4].
[3] (1992) 59 SASR 420
[4] (1997) 69 SASR 54
The second question is whether a GSW can be used, ex post facto, in aid of a favourable exercise of the discretion. The discussion by Cox J in R v Romeo[5], although not directly on point on the facts of this case, would support the use of this as a factor favouring admission. On one view of His Honour’s discussion, the actions of the officers here were lawful. However, I do not decide the case on that basis.
[5] (1982) 30 SASR 243 at 277
[Note: At the commencement of argument and before arraignment, the Information was amended to expand the dates between which Count 2 was committed to “between the 13th day of November 2007 and the 13th day of December 2007”. Section 33(3) did not come into effect until 3 December 2007, so there will be a need for another amendment of the Particulars.]