R v Kaufmann - [2020] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KAUFMANN
[2020] SADC 165
Ruling of Her Honour Judge Fuller
27 November 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with one count of manufacturing a controlled drug and in the alternative one count of possessing prescribed equipment intending to use it to manufacture a controlled drug - evidence relied upon to prove the charges found by police in the course of the search of a unit of which the accused was the lawful occupant - police received information that unit was vacant and persons had entered unit - accused detained by police immediately upon opening front door - neither general search warrant nor warrant under Controlled Substances Act used to enter and search premises - whether entry and search of unit justified at common law to prevent breach of peace.
Held: Accused unlawfully detained. Entry and search unlawful. Evidence of items found during search excluded.
District Court Criminal Rules 2014 Rule 49(1)(h); Controlled Substances Act 1984 (SA) ss 33J(1), 33J(2); Summary Offences Act 1953 ss 75, 82, referred to.
R v Rockford (2015) 122 SASR 391; Bunning v Cross [1970] HCA 21; (1970) 126 CLR 321; R v Nguyen (2013) 117 SASR 432; Kuru v New South Wales (2008) 236 CLR 1, considered.

R v KAUFMANN
[2020] SADC 165

By application pursuant to Rule 49 (1) (h) of the District Court Criminal Rules 2014, dated 1 September 2020, the accused sought an order excluding evidence to be led at his trial. I grant that application. The following are my reasons for so ruling.
The accused is charged with one count of manufacturing a controlled drug contrary to s 33J (1) of the Controlled Substances Act 1984 (SA) and, in the alternative, one count of possessing prescribed equipment intending to use it to manufacture a controlled drug contrary to s 33J (2) of the Controlled Substances Act 1984 (SA).
Rule 49 Application
The accused made application pursuant to Rule 49 (1)(h) for the following order:
1.That evidence obtained as a consequence of the searches undertaken of Unit 6, 28 Rundle Street, Kent Town (‘the Premises’) by members of South Australia Police (‘SAPOL’) on 12 April 2019 is excluded.
The grounds relied upon by the accused in support of the application were:
a.    None of the SAPOL Officers who entered and searched the Premises had any lawful authority to do so, either pursuant to a General Search Warrant, the Summary Offences Act 1953 (SA) or the common law.
b.    In the alternative, to the extent that any member of SAPOL had lawful authority to enter the Premises, which is denied, any such authority to enter or otherwise remain in the Premises was extinguished immediately upon the location by B/Sergeant Matthew Jose of the Defendant’s lease agreement in respect of the Premises.
c.    Constable Swift’s arrest of the Defendant was unlawful.
d.    The public policy considerations which arise as a result of the evidence being obtained unlawfully are such that the Court ought to exercise its discretion to exclude it.
Voir Dire
The following evidence was tendered by the prosecution on the voir dire:
VDP1: Affidavit of Rhys Potusznski dated 13 August 2019.
VDP2: Affidavit of Senior Constable Robert Swift dated 22 May 2019.
VDP3: Affidavit of Senior Constable Robert Swift dated 24 December 2019.
VDP4: Affidavit of Constable Kristian Hanley dated 15 April 2018.
VDP5: Affidavit of Brevet Sergeant Matthew Jose dated 29 May 2019.
VDP6: Affidavit of Detective Brevet Sergeant Leonie Schulz dated 20 July 2019.
VDP7: Affidavit of Dylan Challis dated 5 December 2019.
VDP8: Disc marked ‘BWV Swift’.
VDP9: Disc marked ‘BWV Jose’.
VDP10: Notes of Senior Constable Swift.
The evidence tendered on the voir dire related to the events of 12 April 2019. The affidavits of the witnesses are summarised below.
Rhys Potusznski
At the relevant time, Mr Potusznksi was a team leader working for Unity Housing Company and was authorised to speak on behalf of the Company. He provided details in relation to the tenancy status of unit 6, 28 Rundle Street Kent Town on 12 April 2019. Mr Potusznksi said that the accused was the sole occupant on a signed tenancy agreement, and had entered into a tenancy agreement on 11 April 2019 for an initial 3 months, concluding on 1 July 2019.
Dylan Challis
On 12 April 2019, Mr Challis was living at unit 7, 28 Rundle Street Kent Town. At 9.00pm, Mr Challis noticed strange noises and smells coming from the neighbouring unit, number 6. He believed that unit was vacant. He heard the noises of breaking glass and the smell of cannabis. He thought that the unit was being broken into and damaged. Mr Challis then called the police ‘to attend and check it out’. A short time later, police arrived and knocked on the door of unit 6, at which time more glass started to break. The police then knocked on his door and told him to stay inside. Mr Challis said that he ‘did not know the male who entered the unit and had never seen him before’.
Brevet Sergeant Matthew Jose
On 12 April 2019, B/Sgt Jose was on uniformed mobile patrol with (then) Constable Hanley. About 9.00pm, they were tasked to unit 6, 28 Rundle Street Kent Town in relation to a report of people being inside the unit unlawfully. En route to the unit, B/Sgt Jose heard over the police radio that a patrol from State Tactical Response Group (“STRG”) was already on scene.
Upon arrival, B/Sgt Jose observed that unit 6 was on the first level on the western side and accessible from the southern side of the building. He waited on the ground floor while a member of STRG knocked on the door and called out. He saw a male answer the door. B/Sgt Jose then went upstairs and entered the unit ‘to see if anyone else was present inside the unit’. He located a male in the living room and told the male to lie on the ground with his arms out. Constable Hanley then began to talk to this male. B/Sgt Jose said that he ‘continued to search the unit to make sure no other people were present’. He entered the kitchen area and located a letter from Uniting Housing that included a lease agreement for the unit with some names on it. He then went and checked with the STRG member who was on the landing outside the unit. The male he was speaking to had provided the same name as the name written on the document.
B/Sgt Jose said that the rest of the unit was cleared, and no other people were located. He was then told by Constable Hanley that he had located some broken glassware in the bathroom of the unit. For safety reasons, everyone then exited the unit and police communications centre was advised. He then left the scene with Constable Hanley and resumed patrol duties.
Detective Brevet Sergeant Leonie Schulz
Detective B/Sgt Schulz was working with the Drug and Organised Crime Taskforce (“DOCTF”). A key function of DOCTF is the assessment and processing of clandestine laboratories located within South Australia. This is done by qualified DOCTF detectives who have undergone specialist training.
At 9.30pm on 12 April 2019, Detective B/Sgt Schulz was on call and received a phone call advising her of a possible clandestine lab at 6, 28 Rundle Street, Kent Town. She was given the contact details for the on-duty Sergeant and telephoned S/C Smith for further details. Detective B/Sgt Schulz was advised that police had attended the address as a result of a call from a neighbour that the premises were supposed to be vacant, but there was a person on the premises. When the patrol attended and knocked, they heard glass smashing and after a short time, a male opened the door. She was told that ‘patrols had gone inside and seen what they believe is smashed glass for a clandestine laboratory in the shower cubicle of the bathroom and they could smell chemicals within the premises.’ She was told that patrols were speaking with two males who were inside, Gregory Kaufmann and Mark Brokensha.
Detective B/Sgt Schulz attended the carpark of 28 Rundle Street with Detective Brevet Sergeant Wall. They then watched some video footage from a body worn camera on a SAPOL tablet computer to get an idea of the size and layout of the premises. She then spoke to Constable Hanley over the telephone. He gave her some information about the items located in the bathroom and she asked him some health-related questions relating to chemical exposure.
Detectives B/Sgt Schulz and Wall donned PPE and activated air monitoring equipment and entered unit 6. Her statement contains a description of the lounge room, kitchen and bathroom and the photographs she took at the scene. She prepared an exhibits log of the items seized from the premises.
Senior Constable Robert Swift
In his sworn affidavit, S/C Swift said that he was on uniform mobile patrol on 12 April 2019 with S/C First Class Smith and S/C Westcott. They received information over the police radio in relation ‘to people being at the address unlawfully as it was believed to be vacant according to the reporting person’. At 9.10pm, they arrived at the address and all three of them approached the unit complex. S/C Swift said he activated his body worn video at 9.10:33pm.
S/C Swift walked up the rear stair well and saw that unit 6 was on the south west corner on the upper level. He told S/C Smith that it was a unit, and he approached the door and knocked to see if anyone was inside. He said he announced himself as police and, ‘requested any occupants to come to the door and open up’. He was present when S/C Smith had a brief conversation with the occupant of the neighbouring unit.
As soon as he had knocked on the door, he heard smashing sounds and then stepped back from the door, believing that there were ‘suspects in the unit’. He continued to yell for the occupants to come out, but no one answered or came to the door, which was locked. He said that it sounded as though someone was attempting to break out of the unit. By this time other police had arrived, and S/C Swift called for further assistance including a Special Task and Rescue Group dog operations member and tools to break into the premises if required. The premises were cordoned by several police officers.
At 9.13pm the front door and then screen door of Unit 6 opened, and a male presented himself and came outside. S/C Swift ‘immediately directed the accused to get on the ground and place his hands behind his back’. He ‘secured the accused and other police came to the front door’. The accused then told him that there was another male in the unit, but he did not come out. S/C Swift said he believed that there was a serious breach of the peace that had occurred and that there may have been an injured person inside the property, as a result of a violent act. He said, ‘other people entered the unit to clear the unit and locate the second person’.
S/C Swift asked another officer to continue to secure the accused so that he could confirm his identification. S/C Swift went downstairs to his police fleet and got his mobile tablet to conduct checks and took it upstairs. He then conducted checks on the accused and a male located inside the unit. After several attempts, he was able to confirm the identity of the male inside the unit as Mark Andrew Brokensha.
At 9.22pm the following police officers were inside the unit: Officers Scaglione, Smith, Westcott, Hanley, Hocking, himself and ‘other police’. Scaglione said that there was broken glassware and a chemical smell inside the bathroom, and it was suspected to be a clandestine laboratory. All police immediately exited the unit and removed Mr Brokensha.
At 9.27pm, S/C Swift asked the accused to stand up and searched him using his authority under the Controlled Substances Act 1984. He deactivated his body worn video camera at 9.40pm and discussed the situation with S/C Smith and over the phone with Sergeant Cutts. He learned that S/C Smith had made phone calls to DCOTF and that they would attend and search the property using a general search warrant.
At 9.53pm S/C Swift reactivated his body worn video camera and at 10.00pm arrested the accused for manufacturing a controlled drug. He then gave him his arrest rights. The accused asked to speak to his ex-partner and his solicitor.
The balance of S/C Swift’s first statement and his second statement deal with the activities and inquiries he made after the accused’s arrest and which are not relevant to this voir dire.
Senior Constable Kristian Hanley
On 12 April 2019, around 9.10pm, (then) Constable Hanley was on uniform mobile patrol with B/Sgt Matthew Jose. At this time, they were advised by police communications that a member of the public had called police advising that 2 persons had been seen entering unit 6, 28 Rundle Street Kent town, which the member of the public believed was a vacant unit.
At around 9.15pm, Constable Hanley heard a police patrol advise that they were already on the scene and could hear people inside the premises. A short time later he and B/Sgt Jose arrived on the scene and they assisted with cordoning the area. Constable Hanley saw a police officer at the front door of the unit which appeared to be locked. A short time later he saw a male open the door and exit the unit. Constable Hanley then entered the unit which was in darkness. Using his torch, he saw a male sitting on a chair on the far side of the unit. Constable Hanley instructed him to lie down on the ground and place his hands by his side. This male complied with his direction.
Constable Hanley said he observed several boxes scattered around the unit, which contained items that are frequently stolen, including tradesman tools, electrical equipment, copper pipes and a power box. Constable Hanley said that ‘after searching through the property for a short period of time’ he entered the laundry/bathroom. There he observed broken glass on the floor of the shower and glass pipes and smelt a strong chemical smell.
Constable Hanley then left the bathroom and returned with another officer. When he squatted down and picked up one of the glass pipes with a chemical symbol displayed on the edge, he felt heat on his face. He and the other police officers left the unit as they suspected that the contents of the shower floor were hazardous. Once outside, Constable Hanley relayed what he had seen to the police officers outside. He left shortly afterwards and had no further involvement in the investigation.
Oral evidence on voir dire
Two witnesses gave evidence on the voir dire, S/C Robert William Swift and S/C Kristian Hanley. The accused did not give evidence.
S/C Swift gave evidence that he made notes of his attendance on 12 April 2019. Those notes were tendered.[1] The notes commence with the time and date of the shift and the names of the officers on shift with S/C Swift. The next note has a time recorded of 2125 and the accused’s name, date of birth and address. Following various entries recording activities taking place after, and including the accused’s formal arrest, is a narrative of the attendance at unit 6, 28 Rundle Street Kent Town. S/C Swift records the following:
Police attended @ 6/28 Rundle Street Kent Town in relation to people being in vacant unit, announced as police, heard lots of smashing glass and banging. No answer from people inside, sounded like a serious breach of the peace occurring and possible risk of injury to person/property may be occurring. Male now know [sic] as Kaufmann eventually exited the unit and another male inside.
Entered unit under BOP and subsequently located a clandestine laboratory.
[1] Exhibit P 10.
S/C Swift confirmed that the narrative was concluded at 0700 and that it was not long before 0700 that he wrote the narrative.[2]
[2] T 14, 33-38.
In cross-examination by counsel for the accused, S/C Swift agreed that when he attended he thought there might be people trespassing.[3] When he approached the unit, he could not recall hearing any noise coming from inside and agreed that he would remember if there had been screaming or banging coming from inside.[4]
[3] T 15, 9-11.
[4] T 15, 17-23.
S/C Swift said that he banged on the door quite loudly and said ‘police, come to the front door’.[5] He did not hear any voices, but heard the banging and crashing of glass. He could not say how long after he banged on the door that he heard this noise, but said that would be on the body worn footage.[6] He agreed that once the banging and crashing started to emanate from the unit he continued to yell, ‘police open up. Police come outside’.[7] He also heard a noise that sounded like drilling.[8] He did not hear any screaming, shouting or crying.[9]
[5]    T 15, 27-36.
[6]    T 16, 2-5.
[7]    T 16, 6-9.
[8]    T 19, 38, T 20, 1.
[9]    T 20, 2-3.
S/C Swift then used his radio to request that a dog be brought. He said he did this because he ‘believed something was happening in that premises and we may need the use of the dog if they escape somehow’.[10] He said that at the time he was at the front door he was not aware whether there were any other exit points for that unit. However, shortly after that he sent S/C Smith down the stairs to make sure that there was no ladder down the western side where the windows were.[11] He then checked with the neighbour and learnt that the only way to get out was through the door or by jumping out of the window on the first floor or ‘through the wall into the neighbour’s’.[12] At that point in time, S/C Swift suspected that someone might be trying to break out of the unit.[13]
[10] T 16, 10-12, 28-30.
[11] T 16, 31-38, T 17, 1.
[12] T 17, 1-5.
[13] T 17, 18-23.
S/C Swift understood that the information about people being in a vacant unit came from the neighbour in the unit directly next door.[14] S/C Swift said that when he first attended the unit he knocked on the door of the neighbour’s unit ‘just to understand what was going on, what he had heard’ but he did not come to the front door. It was after this that he knocked on the door of unit 6. Following this, the neighbour came to the screen door.[15]
[14] T 17, 31-37, T 18, 1.
[15] T 18, 2-20.
S/C Swift said that, on the way to the premises, intelligence checks were conducted with Comms through the Investigation Support Branch to see who was recorded at that unit. However, the search he conducted was only a basic search and there was no access to tenancy agreements or any database that recorded where anyone in Adelaide was living at a particular time. He said that there was one person recorded at that address but there was no ‘end date on the Shield system’. He said at that point they were not sure if there was anyone who was meant to be living there and they were relying solely on the neighbour.[16]
[16] T 18-19.
S/C Swift said he could not recall speaking to the neighbour and asking him for the details of his landlord. He did not recall the neighbour trying to find the name of his landlord so the police could call him.[17]
[17] T 19, 28-35.
S/C Swift disagreed with the suggestion that it was only a minute or two before the accused came to the front door. He thought it was around 10 minutes. He said that during this time the smashing was quite constant but he could not put a time on it.[18] When the accused came to the door, he could not recall what the accused said to him, but agreed that he requested him to ‘get to the ground’ and the accused voluntarily manoeuvred himself onto the ground and put his hands behind his back and was then restrained by S/C Swift’s hands.[19] At that point, S/C Swift agreed that he had the accused under his control and that he was not free to go.[20]
[18] T 20, 5-18.
[19] T 20, 19-38.
[20] T 21, 1-13.

S/C Swift agreed that he said to the accused ‘you are not supposed to be in there, are you mate?’ He said this because, at that time, he suspected that he was trespassing on the premises. Although he could not recall saying ‘your mate’s in there’ he accepted that if that could be heard on the body worn footage, he was likely to have said it and this was because he thought there might be other people inside.[21]
[21] T 21, 15-31. S/C Swift was offered the opportunity to look at the footage during his evidence but declined the invitation.
S/C Swift agreed that, after he told the accused he was not supposed to be in the premises, the accused told him that he had moved in today. He could not recall the accused saying, ‘I have my fucking rent certificate in there now’. S/C Swift instead said that, ‘after a period of time he did suggest he had his rental agreement, yes’ but could not say how long after the accused was restrained that he mentioned his rental agreement.[22]
[22] T22, 7-23.
S/C Swift said that he did not believe the accused when he said he had moved in that day. This was because of the smashing of the glass, the fact that there was no lighting and the time it took for the accused to come to the front door.[23]
[23] T 22, 25-35.
He was asked the following questions by me:
QYou said earlier that when you knocked on the neighbour’s door the neighbour didn’t come to the door.
ANo
QYou subsequently formed the view the neighbour thought you were knocking on the other door, did it cross your mind the occupants of No. 6 might have had the same thought process.
AWithin the first minute or so I could understand that. But the time and how loud we were knocking and announcing us as police we made it very clear – down the western side of the unit torches were being flashed into the upstairs unit window. I, at that point, would have assumed it was very clear.[24]
[24] T 22, 37-38, T 23, 1-10.
S/C Swift agreed that the absence of lighting was consistent with a person having just moved in and not had the power switched on.[25]
[25] T 24, 6-13.
S/C Swift had little recollection of the circumstances in which B/Sgt Jose showed him a rental agreement that had been found in the unit, or what B/Sgt Jose said to the accused or to him about the rental agreement.[26] He agreed that he handed over control of the accused to another police officer in order to run checks on the accused and confirm his identity, but he could not recall whether he had confirmed the accused’s identity before he entered the unit.[27] He went to the police vehicle, obtained his tablet and returned to the unit.[28] S/C Swift gave the following evidence:
QIn any event I suggest to you that Mr Kaufmann has provided a name that is similar enough to the name that’s on the rental certificate such that Constable Jose says to you something to the effect of ‘Yes, his name is on the rental agreement’.
AIf that’s what’s on the body-worn.
QDo you agree, therefore, that even if you hadn’t confirmed Mr Kaufmann’s identity at that point, any suspicion that you might have had that he was trespassing ought to have been significantly reduced by that time.
ANo, I disagree.
QCan I ask what more could Mr Kaufmann have done to prove to you that he was lawfully entitled to be on the premises.
AAt that point I would have preferred at least some identification, and in the circumstances leading up to what was occurring when we were there, I had to really double-check and make sure everything was correct at that address before just leaving.[29]
[26] T 24-25, T 26, 13-34.
[27] T 25, 7-20.
[28] T 27, 38-35.
[29] T 26, 29-38, T 27, 1-10.
S/C Swift said he entered the unit because he suspected a serious breach of the peace had occurred, that there may be an injured person inside the unit, as a result of a violent act and there may be property damage.[30] He gave the following evidence in response to questions from me:
[30] T 27, 36-38, T 28, 1-3.
QCould I just ask you this. If, in this instance, Mr Kaufmann had come out and then you gave him the direction that you did, and then the neighbour had come out and said ‘Oh, no, I now remember this person has just moved in today and I know he’s lawfully entitled to be here’, would you have done anything differently after that.
AIf we said – if he had come to the front door when we requested, opened it, produced identification, produced the tenancy agreement, the neighbour suggested exactly what you did, then we probably would have left without any further incident.
QIn terms of him coming to the door, from – I’ve viewed the body-worn footage – when he comes to the door and opens the door he’s give a direction immediately to, effectively, go to the ground.
AThat’s correct.
QSo, in those circumstances, do you accept that he wouldn’t necessarily come to the door with his tenancy agreement.
AAbsolutely agree with that. It was the smashing of the glass, the smashing of whatever it was inside at that time that really aroused my suspicion that something was not correct at that time.
QAnd, in terms of that suspicion, was part of that suspicion also the information from the neighbour that whoever was inside shouldn’t be there.
AAbsolutely.
QSo if you didn’t have that information, just that there was some smashing inside and then a person came out and said ‘I live here’ and you accepted that, what would you have then done.
AI think with the smashing of the glass and not - are we talking he came to the door straightaway or still has taken –
QStill the delay.
AStill the delay; I would request that I go in and check to make sure that everything is ok at that point.
QAsk for his permission.
AAsk for his permission to go in. At that time, I did think that something was wrong inside that unit and that’s why officers went in.
QAnd in terms of you thinking there was something wrong, was that on the dual-fold basis that you suspected people in there shouldn’t be in there and because of the strange noises you heard.
AAbsolutely.[31]
[31] T 28, 4-38, T 29, 1-13.
S/C Swift said that when he had returned to the unit and was trying to confirm the accused’s identity, there were officers inside the unit.[32] He could not say at what point it was that he ascertained that the accused was who he said he was and that the tenancy agreement matched the address, but once this had occurred that component of his suspicion no longer existed.[33]
[32] T 29, 15-19.
[33] T 29, 28-38, T 30, 1.
S/C Swift confirmed that his suspicion regarding a breach of the peace related to the smashing noises and loud crashing and banging he heard when he was outside the unit. He agreed that at the time police entered the unit those noises had stopped, and that the breach of the peace had stopped. However, he said that he was not satisfied that there was no one inside who was injured.[34] He then gave this evidence:
QSo I’ll come to that shortly, but, in terms of, just to be clear, the breach of the peace had ceased and you, in addition to entering, you say to see if there was anyone injured inside, you were also inside to determine what had been smashed or what was being smashed.
AJust to see what was actually occurring in that unit.
QYou were investigating.
AYes.[35]
[34] T 30, 9-30.
[35] T 30, 31-38.
When it was put to him that the body worn footage revealed that he, at no stage, said or did anything to suggest that he had any belief that there was a person inside injured, S/C Swift insisted that he believed that there was an injured person inside the unit.[36] He said that when he asked ‘is your mate in there’ that he was possibly referring to a person who was injured.[37] When asked why he did not go immediately inside the unit to check for an injured person, but went to his police vehicle to perform identity checks he said, ‘at that point there were other officers inside, I believe’.[38]
[36] T 32, 7-12.
[37] T 31, 33-35.
[38] T 31, 33-38, T 32, 1-6.
S/C Swift denied that he went inside the unit for sole purpose of conducting an investigation to determine what the accused was doing inside, and what was being smashed. It was put to him that the only reason he was now asserting that he suspected a violent act had occurred was to justify what would otherwise be an unlawful trespass on the accused’s premises. He disagreed.[39]
[39] T 32, 18-27.
In re-examination, S/C Swift said he did not suspect offences under the Controlled Substances Act. Had he entertained this suspicion, he would have obtained a general search warrant or a warrant under the Controlled Substances Act. He did not have a general search warrant, but would have arranged for a police officer with a general search warrant to attend and explained to that officer what was going on, and that person would have made a decision on the information provided. He said if he had formed a suspicion beyond that which he had outlined in his evidence, he could have conducted a search under a general search warrant or the Controlled Substances Act. He said that at no point did the accused ask him to leave.[40]
[40] T 33-34.
I then took S/C Swift to paragraph 5, VDP2 in which he said, ‘other police entered the unit to clear the unit and locate the second person’ and asked him whether those other police entered the unit at his direction. He gave the following evidence:
AI think – I’m not sure, I can’t remember at that point. I had made note over the police radio in relation to the incident, everyone was listening to it and at that point I may have had a discussion with certain officers, if they were looking at the front door, of what to occur and what we were looking for at that point. And I don’t know – I can’t remember if they entered under – if I told them to go in or not.
QWhen you say, ‘clear the unit’, what do you mean by that.
AThat’s just terminology I use in relation to entering and you clear a place to make sure it’s safe, make sure no one is injured, make sure there is nothing more that we need to be concerned about is probably the best way to put it.
QAt some point after police entered the unit was it clear to you that Mr Kaufmann was a lawful occupant and that the second person there was not injured and was there with Mr Kaufmann’s permission or consent.
AYeah, it was. The second person was very – I’m just trying to think of the word, sorry – they weren’t confident in the fact that they were friends. If I remember correctly, they’d only met that day, and they didn’t really know each other’s details.
QDid that second person suggest that there had been any unwanted interaction between him and Mr Kaufmann?
ANo he was very quiet. [41]
[41] T 35, 1-27.
S/C Hanley gave evidence that he received information that there were people in a unit that was believed to be vacant. He arrived at the unit at 9.15pm. There were other police in attendance when he arrived. S/C Hanley looked around the perimeter to see if there were multiple entry and exit points, and discovered that there was only one entry and exit.[42] He was near the front door when the accused emerged and was restrained by S/C Swift. He could not recall if S/C Swift said, ‘you’ve got to clear it’.[43]
[42] T 37, 1-8.
[43] T 37, 10-16.
S/C Hanley said he entered the unit and it was dark inside, but he saw a man in the unit and he directed him to lie down on his front and he complied with that direction.[44] He believed he was the first person who went into the unit:
I believe Senior Constable Swift had the first person come out of the unit, and then I moved in into the unit after him. Whether Senior Constable Swift had gone in first to get that first male out I’m not sure.[45]
[44] T 37, 17-27, T 40, 20.
[45] T 38, 12-16.
S/C Hanley said that he was not asked or directed by any other person to go into the unit. He said that he did that ‘under my own belief that we were working within breach of the peace’. [46]He explained why he formed that belief:
[46] T 39, 1-5.
AWhen we arrived there, police were at the door, knocking on the door for them to come out and there was an eruption of sounds of glass breaking and that sound of glass breaking continued for an extended period of time. I had concerns for persons’ welfare inside the premises at that time because of that sound that was erupting from there. It wasn’t a usual sound and to hear it prolonged for such a period of time, so I went into the residence under that, thinking that, that there was potentially persons inside the residence who may have been harmed.
...
QWhen you entered and directed the man onto the floor was there still that noise, the eruption of sounds.
ANo
QWhen had that stopped.
AThe noise – from my memory the noise stopped and then the door opened, and Senior Constable Swift spoke to the first male. [47]
[47] T 39, 7-38.
S/C Hanley agreed that, at the time he entered the unit, the noise had stopped and did not start again. After he directed the male inside to lie on his front, he saw boxes scattered around the unit. The boxes were open, and he could see what was in them and he started to search through the boxes. After that, he went into the laundry and bathroom.[48] I asked S/C Hanley what the purpose in searching the boxes was and he gave this evidence:
ASo the way that the room was, there was bags and boxes that were scattered around the floor and I was trying to ascertain if there was some property there that may indicate that there was more people present, that the property may belong to a particular person. But as I looked at the boxes, I could see that it was more tools and there was copper pipe and fixtures and things of that nature, more tradesman’s tools. But when I was initially looking at that stuff, I was looking for things that may have assisted me to ascertain if there was some more people there, whether somebody had left.
QWhat sort of things were you looking for in that regard.
AWe didn’t know who these people were, your Honour, so anything with their names on it as well, so ID, identification. I could see that both parties were male. I was looking for if there was any items that I would attribute to belonging to a female.
QDid you ask the male on the ground or the male outside whether there was anybody else living.
AYes, I believe I would have, yes.
QWhat was the response, can you remember.
ANo, I can’t remember but they didn’t give us much information at all, your Honour.[49]
[48] T 40, 17-33.
[49] T 41, 1-23.
S/C Hanley could not recall whether he looked at the kitchen area before looking through the boxes, but he did not go into the laundry and bathroom until he had looked through the boxes.[50] I asked S/C Hanley what his state of mind was after he had been into the kitchen and looked through the boxes and he said that he still thought that there had been a breach of the peace, and there might be other people on the premises. He agreed that from the moment he entered the unit, he was conducting an investigation into the breach of the peace and he wanted to rule out the possibility of another person being involved who may have been harmed.[51]
[50] T 41, 25-33.
[51] T 42, 7-35.
S/C Hanley confirmed that he included everything in his affidavit of 15 April 2019[52] that he thought might be relevant, and he understood the importance of making sure that everything in the statement, that would ultimately be his evidence in court, was contained in it.[53] S/C Hanley agreed that there was no mention in his statement of him suspecting that a person was injured inside the unit. He agreed that this was an important aspect of the reason he entered the unit but denied that it was omitted from his statement because he did not in fact entertain any such suspicion.[54] S/C Hanley then gave this evidence in response to questions by me:
[52] VDP4.
[53] T 43, 1-15.
[54] T 43, 25- 35.
QSenior Constable, just looking at your statement, and is this the only statement you prepared.
AYes
QYou told us earlier or described it as an ‘eruption of sound’ the smashing of the glass, which led you to believe that a breach of the peace had occurred. I’m just wondering why, unless I’ve missed it, that’s not referred to in your statement, the sounds of the glass as you’ve described it smashing.
AIn the commencement of my statement I was focussing on what was located within the shower and I – that isn’t in there. I didn’t put that in there, that that’s what we were sort of confronted with when we first arrived. I concede that that definitely should have been a part of that.
QDid you make notes.
AThis statement was produced straight after the incident.
QWas this statement made when the facts were fresh in your memory.
AStraightaway.[55]
[55] T 44, 28-38, T 45,1-9.
S/C Hanley said that he decided to go into the unit of his own volition without speaking to the other officers. He said that when he entered the unit he was not sure whether S/C Swift had already been inside, and he ‘entered to ascertain what was happening within’.[56] S/C Hanley said that the accused came out of the unit as if nothing had happened at all.[57] He agreed that one of the important matters to ascertain was whether the male who had come out was actually a lawful occupant, but S/C Hanley did not discuss that with other officers until after they had left the premises. When asked whether it would have made any difference to his decision to enter to learn that the man on the ground was a lawful occupant, he said no.[58]
[56] T 45, 26-32, T 46, 10-16.
[57] T 46, 27-28.
[58] T 47, 8-21.
S/C Hanley agreed that once the accused had come out of the unit he walked straight in, within a matter of seconds.[59] He did not give the accused an opportunity to confirm whether or not he was lawfully present, because that was S/C Swift’s responsibility. He agreed that if S/C Swift thought that nobody should enter the premises until the accused’s identity had been checked, he would have expected Senior Constable Swift to have stopped him at the door.[60]
[59] T 48, 33-38.
[60] T 49, 1-17.
S/C Hanley said that the purpose of entering the unit was to conduct investigations to determine what breach of the peace had occurred and he suspected there was ‘potentially’ an injured person inside.[61] He agreed that before he entered the bathroom he had well and truly begun to conduct a search of the unit and he believed the bathroom to be the last room he would enter.[62]
[61] T 49, 19-25.
[62] T 49, 33-36, T 50, 3.
S/C Hanley recalled having a conversation with B/Sgt Jose about the location of a tenancy agreement, but said he was still conducting a search to ensure that there was not another person inside the unit. He also said that in that conversation they spoke about not believing that the persons located were in fact renting the premises because of the lack of power and the only property they appeared to have were the boxes in the loungeroom.[63]
[63] T 50, 25-37, T 51, 1.
Discussion and findings
The evidence tendered on the voir dire establishes that the accused was a lawful occupant of unit 6, 28 Rundle Street, Kent Town on 12 April 2019. Around 9pm on 12 April 2019, the resident of unit 7, 28 Rundle Street, Kent Town noticed strange noises and smells coming from the neighbouring unit, number 6. He heard the noise of breaking glass and what he believed to be the smell of cannabis. He believed the unit to be vacant. He thought the unit had been broken into and called the police. The information provided to the police who attended was that there were trespassers inside unit 6. I find that no further information regarding noises or the smell of cannabis was conveyed to the police who attended the premises. The first officers on scene were S/C Swift, S/C First Class Smith and S/C Westcott. S/C Swift activated his body worn video camera at 21:10:13. B/Sgt Jose and S/C Hanley were tasked to attend unit 6 and on their way to the premises learnt that a patrol from the STRG was already on scene. B/Sgt Jose and S/C Hanley waited on the ground floor until they saw a male open the door and leave the unit.

The body worn footage in VDP 8 and VDP9 is the best evidence of what occurred both outside and inside unit 6 on 12 April 2019. Where the evidence of any of the police officers as to the sequence of events, the words spoken or the activities performed by any of the attending police differs from what can be seen on the footage, I prefer and rely upon the footage in resolving any such conflict and making any findings of fact.
Findings of fact
I make the following findings of fact based upon my examination of the body worn footage taken by B/Sgt Jose and S/C Swift:
1.At 21:10:13 S/C Swift is on the first floor of the unit complex at 28 Rundle Street, Kent Town and is outside unit 6 and 7.
2.     At 21:10:19 S/C Swift yells in a very loud voice ‘open the door now’.
3.At 21:10:24 S/C Swift says over the radio ‘if we can get a dog down here now’.
4.     At 21:10:46 S/C Swift shouts ‘open the door now’.
5.     At 21:11 the sound of smashing glass can be heard.
6.       At 21:11:06 the sound of smashing glass can be heard.
7.At 21:11:45 S/C Swift says to another police officer ‘they are drilling’.
8.At 21:11:50 S/C Swift says over the radio that they are ‘smashing windows by the sounds of it and there’s a drill going off as well not sure if they’re trying to get through to another unit or into the roof’.
9.     At 21:12:04 the sound of smashing glass can be heard.
10.    At 21:12:13 S/C Swift tries to open screen door and shakes it.
11.At 21:12:20 a male (Challis) speaks to S/C Swift at the entrance of unit 7 and refers to the after-hours number of the landlord, and tells S/C Swift his office is at Mile End.
12.At 21:12:36 a male voice says, ‘what do you want’ and a female voice mentions the word ‘police’ and ‘get out now’.
13.At 21:13:10 B/Sgt Jose and Constable Hanley are on the ground floor of the unit complex near the stairs leading up to unit 6.
14.At 21:13:11 the accused opens the internal door to unit 6 and from behind the screen door says, ‘who are you looking for mate’.
15.At 21:13:13 S/C Swift shines his torch on door of unit 6 and shouts, ‘get out here now, get out here now’. The accused responds ‘sorry’.
16.At 21:13:17 the accused opens the screen door wearing a baseball cap and with a cigarette in his mouth and a mobile phone in his left hand. S/C Swift yells, ‘get down on the ground’, repeats this and then tells him to put his hands behind his back. Immediately after this, B/Sgt Jose and Constable Hanley start to run up the stairs towards unit 6. The accused complies with the direction to get on the ground and put his hands behind his back. I find that from this time on the accused is under de facto arrest and is in the de facto custody of police.
17.From the time the accused emerges from unit 6, no further smashing sounds can be heard. No smashing sounds can be heard at the time from which the body worn footage of B/Sgt Jose[64] is activated.
[64] VDP9.
18.At 21:13:28 S/C Swift says to B/Sgt Jose and Constable Handley ‘we need to clear that place’.
19.At 21:13:34 an unidentified police officer says, ‘they are not smashing windows to get out, they are smashing something inside’.
20.At 21:13:38 Constable Hanley asks S/C Swift, ‘is there another one in there’ and S/C Swift responds, ‘not sure mate, we have got to clear it’.
21.At 21:13:42 the accused says, ‘my mate is in there’ and S/C Swift says, ‘your mate’s in there’ and then tells Constable Hanley there is one more in there. Constable Hanley asks S/C Swift if it is unit 7 and the accused says, ‘we are unit 6’.
22.At 21:13:50 Constable Hanley and B/Sgt Jose enter unit 6. As soon as they enter, they see Mark Brokensha sitting on a chair in the living area and Constable Hanley directs him to get on the ground, saying ‘get on the ground face down palms out; stay there don’t move’. Brokensha does as directed. A search of the premises then commences, with Constable Hanley inspecting visually, and by hand, various items in the living room, and going into the kitchen and bedroom of the unit. From this time on there are at least 3 or 4 police officers inside the unit, all of whom are searching the unit. The search includes a personal search of Brokensha while he is lying on the ground.
23.At 21:13:51 S/C Swift says to the accused, ‘you’re not meant to be in there’ and the accused responds, ‘I moved into today mate, I moved in today’. The accused says, “I’ve got my fucking rental certificate in there now’.
24.At 21:14 S/C Swift asks the accused for his name and the accused replies “Greg Kaufmann’. S/C Swift asks him why he did not answer the door and asked, ‘what’s been smashing in there’. The accused responded, ‘my mate’. S/C Swift asks him what has been smashed and the accused says he does not know.
25.At 21:14:13 S/C Swift says again, ‘you are not meant to be here’ and the accused says, ‘I am’ and to ‘look in the kitchen on the kitchen counter is my new rent certificate from here today’. S/C Swift says, ‘all right’.
26.At 21:14:20 Constable Hanley asks Brokensha, ‘who else is here mate’ and Brokensha responds ‘no one’. Constable Hanley says, ‘just you two’ and Brokensha says ‘yes’. B/Sgt Jose then asks, ‘where’s the kitchen’ and Brokensha says, ‘there’. Brokensha asks, ‘what’s going on’ and Constable Hanley responds, ‘we suspect you’re not meant to be here’. Brokensha tells Constable Hanley to look in the kitchen, on the right-hand side of the oven, and Constable Hanley tells him his partner is ‘grabbing it’.
27.At 21:14:35 the accused says, ‘have a look on the kitchen’ and S/C Swift replies ‘that is what we are doing’. S/C Swift says, ‘obviously when there is smashing stuff inside it’s not ideal mate is it’ and the accused responds ‘sorry mate’.
28.At 21:14:38 B/Sgt Jose reads the rental agreement. Brokensha then says that there is no electricity on at the moment.
29.At 21:14:49 Constable Hanley and a female officer ask Brokensha what was being smashed and he says, ‘I’ve got no idea’. S/C Swift then says, ‘neither of them have any idea apparently’.
30.At 21:15:05 B/Sgt Jose asks Brokensha what his name is, and he says ‘Mark’.
31.At 21:15:22 S/C Swift asks the accused for his full name and he gives his full name and date of birth.
32.At 21:15:32 B/Sgt Jose tells S/C Swift he has found a rental agreement with the accused’s name on it and S/C Swift replies, ‘with his name on it?’ and B/Sgt Jose says ‘yes’. S/C Swift says, ‘beautiful’. S/C Swift then says, ‘I will just double check - see if we can get a photo of him’.
33.At 21:15:49 S/C Swift asks the accused to confirm his name and whether it is hyphenated.
34.At 21:15:52 Brokensha asks, ‘is that all right, the tenancy agreement’ but no one answers him.
35.At 21:16 S/C Swift asks another police officer to keep the accused secure, tells the accused ‘just stay there’ and then goes down the stairs to the police vehicle telling other officers he is going to do a PIMS check, and that he ‘needs a photo’.
36.At 21:16:14 Brokensha asks, ‘why am I here on the ground’ and is told by B/Sgt Jose ‘stay there’. At 21:16:28 B/Sgt Jose asks Brokensha where his bag is, and Brokensha tells him he does not live there. B/Sgt Jose says to him, ‘you are just visiting’ and Brokensha tells him it is a single bedroom place. Brokensha identifies his own bag and police then search his bag.
37.At the police vehicle S/C Swift obtains his computer tablet and speaks with an unidentified officer informing him, ‘no it is just really weird’. He is asked if he wants the dog and says, ‘no we are in now’. He tells the police officer ‘they are smashing shit’, and gives the police officer directions to the unit, saying ‘it just doesn’t make any sense’. He then says, ‘they were keeping really quiet and then they started smashing stuff but there is a tenancy agreement in this guy’s name starting today’. The other officer says, ‘a bit of a going away party’ and S/C Swift says ‘maybe’ and ‘it is unusual’. He then says, ‘he came out a bit aggressive though’.
38.At 21:17:47 Brokensha asks, ‘what is this over mate’ and an unidentified police officer tells him ‘for starters you’re in there and smashing something up, all the power is off’. Another police officer says, ‘these are vacant premises you are obviously not supposed to be here’. Brokensha responds, ‘the bloody tenancy agreement is just there, your mates have read it’. An unidentified police officer says, ‘the ETSA box is just here’. Brokensha then explains that he has been getting items from a skip bin near Clinpath and this is the second load of ‘shit’ that he had got and the rest is at his mother’s house at Kensington, where he lives.
39.S/C Swift returns with his tablet to unit 6 at 21:18:38 and asks other police for ‘the paperwork’. He is directed to the kitchen and then examines the rental agreement. A female police officer tells him there is a strong smell of chemicals and S/C Swift says, ‘they were probably cooking’. S/C Swift then starts searching information on his tablet in the kitchen and says, ‘something is not right about this’.
40.At 21:20 police locate the items smashed in the bathroom and shortly thereafter all police vacate the unit.
Lawfulness of detention, entry and search
I find that at the time that S/C Swift directed the accused to get on the ground, he suspected that the accused was a trespasser in unit 6 and had damaged property in the unit. However, I am not satisfied that S/C Swift intended to arrest the accused at the time that he gave the direction to him to get on the ground. S/C Swift did not suggest that this was his intention and there is no evidence from which this can be implied. I find that the accused was not free to leave and was therefore in de facto custody. I find that his detention was unlawful, as S/C Swift did not have reasonable grounds to suspect, without further inquiry of the accused, that he was a trespasser on those premises or that he had committed the offence of damaging property.
I find that upon the accused informing S/C Swift that there was another person in the premises, S/C Swift suspected that there was another person in the premises who was a trespasser and that property had been damaged within the unit. However, I am not satisfied that S/C Swift intended to enter the unit in order to effect an arrest of that second person or that, at that time, he had reasonable grounds, without further inquiry, to suspect the occupant was a trespasser and had committed the offence of damaging property.
I find that when S/C Swift uttered the words, ‘clear the unit’ this was a direction to S/C Hanley and B/Sgt Jose to enter the unit and locate and remove all occupants but was not a direction to search the unit. In his affidavit, VDP5, B/Sgt Jose said he entered the unit ‘to see if anyone else was present inside the unit’. In S/C Swift’s affidavit VDP2, he asserted that ‘other police entered the unit to clear the unit and locate the second person’. This evidence supports my finding that it was not a direction to search the premises.
I reject the evidence of S/C Swift that he and other police entered the unit because he suspected a breach of the peace had occurred, and that there may be someone injured inside. The body worn video footage records all conversations that S/C Swift had with the accused, other police officers, and also with himself. At no time did S/C Swift make any mention of a suspicion that a breach of the peace had occurred, and at no time did he refer to the possibility of a person being injured inside, or have any discussion with other police to that effect. The suggestion he made in his evidence that when he asked the accused ‘is your mate there’, he was referring to a person who was injured is not credible, and I reject it.
Further, the actions of all police officers who were in that unit were not consistent with any of them holding any suspicion that there was an injured person inside. Apart from the initial detention of Mr Brokensha, the police officers in the unit appear to be generally wandering around looking at items within the unit with their torches, and undertaking an investigation and a search. There is no sense of urgency about the actions of any of the police officers visible on the footage.
I find that from the moment that Brokensha had been detained on the ground, all police in that unit were engaged in a search, but one without parameters and which was in the nature of a ‘look and see’. I find that there was no coordinated approach with respect to what would happen upon entry into the unit. I find that once the direction to ‘clear the unit’ was given, each police officer took it upon him or herself to look around the unit with a torch and inspect or search items located in that unit.
It is apparent from VDP9 that S/C Hanley and B/Sgt Jose were in the vicinity of the stairs to unit 6 at about the time the accused was emerging from the front door. By that time, the smashing sounds had stopped. In his affidavit, VDP4, S/C Hanley said that he and B/Sgt Jose assisted with cordoning the area when they first attended. Whilst I cannot exclude the possibility that the smashing sounds were occurring when the cordon was being established, I am not satisfied that S/C Hanley in fact heard this, and heard it in the way, and to the extent he described in his evidence. S/C Hanley said he made his affidavit straight after the incident when the facts were fresh in his memory. His affidavit omits any reference to holding a suspicion that there was an injured person inside, or that this was the reason he entered the unit. His affidavit also omits any reference to hearing any glass breaking or smashing, let alone an eruption of sounds of glass breaking, over an extended period of time. Further, his evidence that he was looking through open boxes in the unit to see if there were any items that may have assisted him to determine if there was anyone else in the unit, in particular a female, lacked credulity. Even if I accepted this explanation for looking through the boxes, those are not the actions of an officer concerned to locate an injured person.
I reject the evidence of S/C Hanley that he entered the unit of his own motion, and without any direction from any other police officer. It is clear from the footage that he entered upon the direction of S/C Swift to clear the unit. I reject his evidence that he heard an ‘eruption of sounds of glass breaking and that sound of glass breaking continued for an extended period of time’. It follows that I reject his evidence that his concerns for the welfare of persons in the unit was the reason he entered the unit. I find that he entered the unit because S/C Swift directed him to clear it.
Accordingly, I find that the entry into unit 6 and the subsequent search was unlawful. It is clear from VDP8 and VDP9 that the evidence sought to be excluded was located towards the tail end of what I have found to be an unlawful entry and search. S/C Swift did not have a general search warrant and at no time prior to the entry and search of the unit did he suspect offences under the Controlled Substances Act 1984 had been committed. Nor was the entry for the purposes of effecting an arrest under section 75 of the Summary Offences Act 1953. The only justification for the search had to be found in the common law: section 82 Summary Offences Act 1953.
Even if I had found that S/C Swift had reasonable grounds to suspect that the accused and any other occupant of unit 6 were trespassers, and had committed the offence of property damage, and the entry was justified in order to effect an arrest of the remaining occupant, the position changed shortly thereafter. As soon as the accused told S/C Swift his name, that he lived at the premises and B/Sgt Jose located the rental agreement in the accused’s name, any suspicion S/C Swift held at that time could no longer be considered reasonable. At that point, it was incumbent upon police to make further inquiries to determine whether the accused was the lawful occupant, as he claimed to be, a claim which was supported by the rental agreement. The entry and search should have been suspended until those inquiries were made.
S/C Swift agreed that at some point after police entered the unit, it was clear to him that the accused was a lawful occupant and that other person inside was there with the accused’s permission or consent. He agreed that if he had been satisfied that the accused was a lawful occupant when he first emerged from the unit he would then have asked for his permission to enter the unit ‘to make sure that everything is ok at that point’.
As I have rejected the evidence of S/C Swift and S/C Hanley that each of them suspected that a breach of the peace had occurred and this was the basis upon which their entry into the unit was justified, it is not necessary for me to determine whether the entry and search was justified under the common law in order to prevent a breach of the peace. However, it is relevant to the exercise of the Bunning v Cross discretion to record that the ambit of the power of police to enter premises to prevent a breach of the peace does not extend to entry for the purposes of investigating whether there has been a breach of the peace, or determining whether one is threatened.[65] By the time the accused emerged from unit 6, there was no basis upon which it could be suspected that there was a continuing breach of the peace, and there was nothing to suggest that any further breach of the peace was threatened or expected, let alone imminent. Accordingly, even if I had accepted the evidence of S/C Swift and S/C Hanley on this topic I would not have found the entry, let alone the subsequent search, justified under the common law to prevent a breach of peace. Further, the evidence of each officer as to the reasons for entry could not, even on the most favourable view, be elevated to an entry for the purpose of preserving life or property.[66]
The Bunning v Cross discretion
[65] Kuru v New South Wales (2008) 236 CLR 1 at [51] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
[66] Kuru v New South Wales (supra) at [40] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
Having found that the entry and search was unlawful, the rule in Bunning v Cross[67] confers upon me a discretion to exclude relevant and admissible evidence based on public policy considerations. I set out the helpful summary of the history of the Bunning v Cross discretion in the judgment of Stanley J in R v Rockford (2015) 122 SASR 391:
[67] (1978) 141 CLR 54.
The so-called rule in Bunning v Cross[68] confers upon a court a discretion to exclude relevant and admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally. The Bunning v Cross discretion has its roots in R v Ireland[69] where Barwick CJ considered that a trial judge had a discretion to reject real evidence that was unlawfully obtained. He said:[70]
[68] (1978) 141 CLR 54.
[69] [1970] HCA 21, (1970) 126 CLR 321.
[70] [1970] HCA 21, (1970) 126 CLR 321 at 335.
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
In Bunning v Cross[71] Stephen and Aickin JJ, delivering the leading judgment for the court, said:[72]
[71] (1978) 141 CLR 54.
[72] (1978) 141 CLR 54 at 74 - 75.
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law… [T]he discretionary process called for by Ireland … [is] concerned with broader questions of higher public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
Their Honours explained the considerations underpinning the competing principles which inform the exercise of the discretion as follows:[73]
[73] (1978) 141 CLR 54 at 77 - 78.
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards, its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.… [T]he courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law … [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to admissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
In Cleland v The Queen[74] Deane J extended the field of operation of the public policy discretion to include impropriety in addition to unlawfulness. He stressed the balance which had to be struck in exercising the discretion in the following terms:[75]
[74] [1982] HCA 67, (1982) 151 CLR 1.
[75] [1982] HCA 67, (1982) 151 CLR 1 at 20.
The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law.
In Pollard v The Queen[76] Deane J further explained the application of the Bunning v Cross discretion in the following way:[77]
[76] [1992] HCA 69, (1992) 176 CLR 177.
[77] (1992) 176 CLR 177 at 202 – 203.
[T]he principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
Ridgeway v The Queen[78] was a further extension of the public policy discretion. The unlawfulness in Ridgeway was not in the conduct of police in obtaining evidence of a crime committed but in the conduct of law enforcement officers who themselves committed a crime in order to establish an element of a further offence which they anticipated would be committed by the accused. Ridgeway is a case of entrapment. The exclusion of the evidence obtained by way of the sting in Ridgeway reflected the court’s duty to ensure that it did not, by the failure to exercise its discretionary powers, achieve an objective which flagrant and deliberate breaches of the law by law enforcement officers was designed to achieve. Mason CJ, Deane and Dawson JJ said:[79]
[78] [1995] HCA 66, (1995) 184 CLR 19.
[79] (1995) 184 CLR 19 at 31 – 32.
[T]he considerations of “high public policy” which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
[Citations omitted].
In R v Swaffield[80] Kirby J identified the considerations relevant to the exercise of the public policy discretion in Bunning v Cross as follows:[81]
[80] [1998] HCA 1, (1998) 192 CLR 159.
[81] [1998] HCA 1 at [135], (1998) 192 CLR 159 at 212 – 213.
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charged. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i)    whether the conduct was deliberate, or resulted from a mistake;
(ii)     whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii)    the ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv)    the legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson 11 in Ridgeway added an additional consideration:
(v)     “whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”
…
[Citations omitted].
In R v Lobban[82] this Court held that the public policy discretion in Bunning v Cross is enlivened only when the evidence sought to be excluded is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. The Bunning v Cross discretion does not operate to punish unlawful, improper or unfair conduct on the part of law enforcement authorities. That is a matter for police disciplinary procedures or the invocation of separate criminal proceedings. It is only when such conduct results in the obtaining of relevant and admissible evidence that the Court is required to exercise its discretion whether to exclude such evidence obtained by such means. The discretion to exclude does not extend to subsequent conduct on the part of law enforcement authorities, unless the subsequent conduct is closely connected with the earlier conduct. For example, the discretion does not apply where police officers give false evidence as to how material was obtained, where the material itself was not illegally or improperly obtained.[83] The unlawful or improper conduct must be the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.[84]
[82] [2000] SASC 48, (2000) 77 SASR 24.
[83] Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 288 – 289.
[84] Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90 at [55], (2003) 6 VR 430 at 454.

The right of a citizen to be protected from unlawful search and entry is a notoriously fundamental civil right. In R v Nguyen (2013) 117 SASR 432, the Court said that it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions upon which their lawful exercise depends.
Having viewed the footage VDP8 and VDP9, I have some sympathy for the position police found themselves in on 12 April 2019. There was only one entry point for the unit, and the noises coming from it were suspicious. It is obvious from the footage that tensions amongst the police were high, and they were genuinely puzzled about what was going on in the unit. However, the noises that could be heard were not indicative or suggestive of any violence being perpetrated in the unit or any injury being caused to any person. They were intermittent and consistent with the dropping of glassware on a floor.[85]
[85] I was unable to hear drilling on the footage, but cannot exclude that as another sound heard. However, the sound of drilling is not indicative of violence or injury occurring.
When the accused emerged, S/C Swift’s response was forceful and intimidating. It was what I would expect to occur in the arrest of a known violent or armed offender. The accused put up no resistance and complied with every direction. What occurred after that, was, unfortunately, an uncoordinated free for all ‘look and see’, triggered by the words ‘clear the unit’.
The protests of the accused that he was a lawful occupant were met with derision. The treatment of the other occupant, Brokensha, was not much better. Both were repeatedly told they were not meant to be there. Even when an apparently valid rental agreement was located shortly after entry was effected, neither S/C Swift, nor any other officer, stopped to consider how proof of lawful occupancy might affect the lawfulness of their actions. The investigation and search of the unit simply continued uninterrupted, while S/C Swift returned to his vehicle, in order to obtain his computer tablet.
The conduct of the police could, in some respects, be described as high-handed, but I do not consider that any police officer involved in this matter was deliberately cutting corners. I consider that what occurred on this evening was the product of a lack of rigour being applied to a fast-evolving situation. Whilst the police were entitled to act upon the information received in attending at the unit and making inquiries, what they ought to have done is satisfied themselves that the information that the unit was vacant was reliable, before determining the course of action to take.
Even if I accepted that it was reasonable for S/C Swift to demand the accused, the lawful occupant of unit 6, to get on the ground with his hands behind his back, the first thing S/C Swift ought to have done was to ask the accused for his name and address. If the accused had then said that he lived there (which is what he in fact said) then the next step would be for S/C Swift to determine whether this was correct. There were a number of ways in which that could have been done, including allowing the accused to go back into the unit to obtain the rental agreement and identification. Had this procedure been adopted in this case, absent the accused’s permission, there would have been no lawful basis upon which the police could have entered or searched the unit.
A private citizen is entitled to expect that if the police attend at his home armed with information that he is a trespasser (for example a report from a spiteful neighbour) and he greets them at the front door, he will be given an opportunity to establish his lawful occupancy of the premises without first being detained forcefully and his premises searched.
The fast-evolving situation and the lack of rigour has led to an ex post facto reconstruction by S/C Swift and S/C Hanley of their justification for the entry and search. I am not prepared to find that this was deliberate, but I am of the view that the lack of thought and rigour (applied by all police who entered and searched the unit) has resulted in each of them reflecting upon what had occurred when they prepared their notes and/or statements and subsequently reconstructing a justification for the entry and search, which each now genuinely believes existed at the time.
The alleged offending is undoubtedly serious. The illegality does not affect the cogency of the evidence. An important matter in the exercise of the discretion is that, on the facts I have found, there was no lawful statutory or common law power that would have otherwise justified the entry and search of the accused’s unit. The conduct was not deliberate, but it was not mistaken. Rather, it was the result of the failure by police to apply thought and rigour to an evolving situation, in which any initial belief regarding the justification for entry and search had to be re-evaluated against the information coming to hand.
It is the duty of the Court to be vigilant to ensure that unlawful conduct (whether deliberate, mistaken or some other variant) 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.[86]
[86] R v Rockford (supra) at [39] per Stanley J.
Orders
In the exercise of my discretion, I exclude the evidence obtained by police during the search of unit 6, 28 Rundle Street Kent Town on 12 April 2019. I do so having balanced the factors referred to above and because I consider it necessary to mark judicial disapproval of the excess of police power in this case and to promote compliance with the limitations on the exercise by police of the powers of search and entry.