R v King - [2019] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KING
[2019] SADC 107
Reasons for Ruling of His Honour Judge Beazley
2 August 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
District Court Rules 2014 r 49(1)(e)(h); Summary Offences Act 1953 (SA) ss 68, 75; Controlled Substances Act 1994 (SA) ss 32 and 52, referred to.
Coco v The Queen (1994) 179 CLR 427; Halliday v Nevill (1984) 155 CLR 1; Kuru v New South Wales (2008) 236 CLR 1; Bennett v Police [2016] SASC 139; R v Golja [2017] SASCFC 61; Pollard v The Queen (1992) 176 CLR 177; R v Rockford [2015] SASCFC 51; R v Nguyen (2013) 117 SASR 432; Bunning v Cross (1978) 141 CLR 54; R v White [2014] SADC 33; R v Turner & Williams (1987) unreported; R v Armistead [2017] SADC 63; R v Webb & Hay (1992) 59 SASR 563; New South Wales v Riley [2003] NSWCA 208; Coleman v Zanker (1991) 58 SASR 7; Police v Williams [2014] SASC 177; R v Willingham (No 2) [2012] SASCFC 104; George v Rockett (1990) 170 CLR 104; Wilson & Morrison v The Queen [1994] SASC 5; R v Rogers (2011) 109 SASR 307; R v Frantzis (1996) 66 SASR 558; Ridgeway v The Queen [1995] HCA 66; Christie v Leachinsky [1947] AC 573; Plenty v Dillon [1991] HCA 5; Police v Dafov (2008) 102 SASR 8; Police v Moukachar (2010) 107 SASR 540; R v Fazio (1997) 69 SASR 54; Bain v The Police (2011) 112 SASR 10; Ercegovic v Higgins (1987) 45 SASR 189; R v Nguyen [2016] SASCFC 96; Police v Edwards [2007] SASC 289; R v Dolan (1992) 58 SASR 501; R v Rondo [2001] NSWCCA 540; R v Hunt [2014] NTSC 19; R v Chapman (2001) 79 SASR 342; R v White [2016] SASC 33; R v Eggen & Eggen-Zeytoun [2016] SADC 26; Michaelis v Police (1999) SASC 102; R v Ioannidis [2015] SASCFC 158; R v Nguyen [2015] SASCFC 7, considered.

R v KING
[2019] SADC 107
Introduction

The trial in this matter is listed to commence on 3 October 2018. Christopher King (the accused) is charged on Information dated 27 October 2017 with 11 offences allegedly committed by him between 19 April 2015 and 16 March 2016.
Those charges are respectively:
·On 19 April 2015, at Lonsdale, one count of trafficking in a large commercial quantity of cannabis totalling 2.024 kilograms of female cannabis plant material (count 1).
·On 1 January 2016 at Hallett Cove, one count of trafficking in a large commercial quantity of cannabis totalling 2.57 kilograms (count 2); and one count of unlawful possession of $8,730 in cash (count 3).
·On 12 January 2016 at Lonsdale, one count of trafficking in a controlled drug with a total substance of 13.61gms containing 10.79gms of methamphetamine (count 4); together with one count of unlawful possession of cash in the sum of $10,300 (count 5).
·On 19 August 2016 at Lonsdale, four counts of trafficking in a controlled drug the first being located in a shipping container with a total weight of methamphetamine of 83.4gms (count 6); the second being cannabis material located in the same shipping container, weighing a total of 418gms (count 7); the third being some 2.48gms containing 1.97gms of methamphetamine (count 8) together with one count of unlawful possession of $8,600 being located in an internal jacket pocket (count 9).
·On 15 March 2017 at Seaview Downs, one count of trafficking in a controlled drug being 1.31gms of methamphetamine (count 10).
·On 16 March 2017 at Seaview Downs, one count of trafficking in methamphetamine in a backpack, being two quantities of methamphetamine, the first containing 0.26gms and the other 3.45gms of methamphetamine (count 11).
·The formal application by the accused, pursuant to Rule 49
By Application dated 24 July 2018, the accused, applied for various orders to be determined upon a voir dire.
Mr Wilson appeared as counsel for the DPP. Mr Morrison appeared as counsel for the accused.
I acceded to the request that a voir dire be granted. The voir dire was, listed for hearing on 2 August 2018. It was not possible to deal with all of the issues raised by the accused at that time, as a considerable quantity of documents sought by the accused had not, at that time, been provided.
I proceeded to hear submissions on all other issues raised by the accused. I was able to provide ex tempore rulings in respect of most of the issues. However, two other rulings were reserved until today.
The accused had sought orders that counts 1, 4, 6, 7 and 8 be heard separately from counts 2, 10 and 11; that counts 10 and 11 be heard separately from each other and from count 2; and that each of the offences of unlawful possession of cash in counts 3, 5 and 9, be heard separately from all other counts because the reverse onus of proof, on such counts would oblige the accused to give evidence.
The two principal issues which were reserved were respectively:
·Whether the evidence obtained by the police at 60 Morrow Road, Lonsdale on 19 April 2015, in count 1, ought to be excluded on the proper exercise of the discretion in Bunning v Cross.[1]
[1] [1978] HCA 22; (1978) 141 CLR 54.
As to this count 1, I have determined that the evidence obtained by the police on 19 April 2015, ought to be excluded.
·Whether the evidence obtained by police on 12 January 2016 at Lonsdale, in count 4, ought to be excluded on the proper exercise of that discretion.
As to this count 4, I was invited by both counsel to determine this question upon their written submissions.
As to this count 4 I have decided, in the exercise of my discretion, to permit the prosecution to lead the evidence obtained by police on 12 January 2016 at Lonsdale.
I provide brief reasons for those rulings.
·The challenge as to the admissibility of evidence of the search conducted by the police at Lonsdale on 19 April 2015.
·Count 1
There are two aspects to the challenge by the accused. The first concerns the attendance of Senior Constable “N” at a private property situated at the end of a very long access road off Morrow Road at about 9.45pm on Sunday 19 April 2015. He had attended the site having observed the lights of a vehicle travelling along the road. It was his decisions to follow it and undertake some investigations on the private land which are in issue.
The second concerns the attendance of a number of other police at that site following the observations made by Senior Constable “N”.
Background to the subject search on 19 April 2015
The subject property at 60 Morrow Road at Lonsdale is situated in an industrial area containing some business premises and storage sheds. Counsel tendered a map and photo to indicate the long drive from the main road to the subject industrial property and its lower and upper levels.
The accused submitted that the evidence obtained during the search of the industrial premises ought to be excluded principally on the bases that the police had no reasonable cause to suspect the accused of committing any offence; and that the police officer who attended at the subject property had no lawful authority to enter the property nor to remain on the property and search it on that occasion.
In the course of the voir dire the prosecution called as a witness Senior Constable “N”. The accused was not called to give evidence on the voir dire nor did he call any other witnesses.
Synopsis of the evidence of Senior Constable “N”
He had prepared a statement dated 11 July 2015. He deposed that at about 9.45pm on Sunday 19 April 2015 he was on uniformed mobile patrol in a marked vehicle travelling along O’Sullivan Beach Road.
He said he observed a vehicle from a distance of about 100 metres and, at that time, it was entering Morrow Road from the main road. He could not see the make or model of the vehicle nor could he see the number plates of the vehicle. He acknowledged that he had no knowledge of the vehicle prior to that observation, and that he was not close enough to see the occupant in the vehicle nor whether it had been involved in any offence against the Road Traffic Act 1961 (SA).
He said that he followed the vehicle into Morrow Road because it was an area that had been recently targeted for high value thefts. Further it was unusual to see a vehicle at that time of night in that area particularly on a Sunday. He said that at about 6 months previously he had attended at Morrow Road in consequence of a spate of theft of plant equipment in the Lonsdale area and that a few weeks earlier, an excavator which had been stolen, was recovered at those premises.
He said that he lost sight of the vehicle while travelling along Morrow Road but as he went further down the road he saw a number of vehicles, one of which was the subject vehicle. He said that while there are gates at 60 Morrow Road, in the six years that he had been working in the area, he had never seen the gates closed. He explained in chief that his purpose for going on to the property was to try and locate the vehicle that he had seen, to ensure that it was not involved in stealing any equipment which might have been stored in the yard. The vehicle had stopped near one of the sheds at that property. He explained that he exited his vehicle and checked the subject vehicle. He noted that the vehicle’s engine was still warm but was empty. He said he called out for the driver to return to the vehicle but no one appeared immediately to respond, from that shed. The accused, however who was in another shed then appeared and spoke to Senior Constable “N”.
The accused asked Senior Constable “N” why he was there. The Constable said that he wanted to speak to the driver to ask why they were there and ensure they had a licence to drive the vehicle as it had Queensland plates. Senior Constable “N” noted that there was another building with a door open. He then walked up to that door calling out but no one replied.
Senior Constable “N” said he did not have any recollection of discussing with the accused his permission to remain on the property. He said that he approached the shed on the western side and as he stood in the doorway he could smell a strong odour of cannabis. He said he then returned to his vehicle and asked for other police to attend because he suspected there may be a cannabis crop in the building. Senior Constable “N” said that the accused had closed the door preventing him from further access and told him that the unit belonged to someone else.
He said that he thought that the accused became defensive and protective and refused to answer any direct questions.
He said another man appeared who described himself as an electrician doing work for the accused. He gave his name and identified the vehicle that he was driving.
It was some six minutes, after he requested other officers to attend, that they arrived at the premises. He said he conducted a search of the vehicle pursuant to s 4 of the Road Traffic Act so as to identify the driver. He did not have a general search warrant.
When cross-examined he conceded that it was private property and that he had no specific information about any offences being committed on that property on that night. He also conceded that he had made an assessment of the vehicle. It was spotlessly clean. He accepted that he had no specific suspicion that the vehicle had been involved in the commission of any offence up to the point when he opened the door to the shed.
He said, at its highest, he had a suspicion that the driver of the vehicle could be hiding in the shed, the door of which was closed by the accused. He agreed that the other police officers arrived with a general search warrant. They entered the shed finding seven resealable bags of cannabis, a set of digital scales and a vacuum sealing machine. They found a black Samsung mobile phone next to a number of cannabis cuttings and another Samsung mobile phone adjacent to the entrance of the room containing seven bags of cannabis. A mixed DNA profile of the bags with a relatively small statistical weighting of 300 in favour of the accused being a contributor to the DNA profile. Other evidence available to the prosecution was of the contents of each of the two mobile phones that allegedly implicated the accused and CCTV footage from a separate shed that identified the accused as having been in the shed in which the cannabis was located for a period of about 26 hours.
I repeat that the accused has sought the exclusion of all of the evidence obtained by the police at 60 Morrow Road on 15 April 2015. The search by the other officers with a general search warrant, of the premises, occurred about 10 minutes after the Senior Constable had smelt cannabis at the premises.
The principles of law
I turn first to the power of the police to conduct a search of an individual under s 68 of the Summary Offences Act 1953 (SA).
That section provides:
Section 68:
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)    there are stolen goods; or
(ii)     there is an object, possession of which constitutes an offence; or
(iii)    there is evidence of the commission of an indictable offence;
(b)     a person who is reasonably suspected of having, on or about his or her person—
(i)    stolen goods; or
(ii)     an object, possession of which constitutes an offence; or
(iii)    evidence of the commission of an indictable offence. (my emphasis)
(2)     In this section—
stolen goods includes goods obtained by the commission of an offence.
The section has been considered by the Supreme Court in a number of decisions, including those in R v Rogers;[2] R v Frantzis;[3] and R v Willingham (No 2).[4] The obvious prerequisites involve ‘reasonable suspicion’ but also the matters referred to in s 68(2) of the Act.
[2] (2011) 109 SASR 307 at [17]-[18], [21]-[22].
[3] (1996) 66 SASR 558.
[4] [2012] SASCFC 104.
In R v Frantzis, supra, the Court of Criminal Appeal discussed the test of reasonable suspicion under s 68, saying:
That the requisite level of reasonable suspicion must exist at the time the member of the police force conducts the search.
It said that the power to search and detain is for the purpose of enabling a police officer to investigate the possibility that an offence has been committed.
It is not necessary that the police officers have knowledge of the commission of an offence, or the particulars of the commission of an offence. Nor does the police officer have to suspect that [an individual] need necessarily have committed any particular offence.
The section is designed to be an aid in the investigation of the commission of an offence, and hence it is enough that the police officer has reasonable cause to suspect that there is [on the person] any of the matters mentioned in s 68(1). It is dangerous to draw too close an analogy between the meaning of ‘with reasonable cause to suspect’ in s 68 and its meaning in relation to other provisions involving more significant erosions upon civil liberties, for example in relation to the power to arrest without a warrant under s 75 of the Act.
In my opinion there is no true analogy. The power to arrest in s 75 must be founded upon a suspicion of having committed, or being about to commit a specific offence, and the arrested person must be told the offence for which he is being arrested … Power to search stands differently. It is designed to enable a police officer to investigate the possibility that an offence has been committed. Its purpose is quite different from s 75. There may be many circumstances in which a police officer will reasonably suspect that the search of a person will disclose stolen goods … without having any information as to the existence of any specific property or the commission of a specific offence.
If the power to search did not apply to persons who were acting suspiciously unless the police officer already knew or suspected the presence of specific goods or the commission of a specific offence, police work would be considerably, and I think unreasonably, constrained. Mrs Shaw was unable to cite any authority to suspect her proposition that s 68 should be interpreted in such a restricted manner. I think that the words in s 68 embrace a non-specific suspicion as to the matters mentioned in that section. I see no reason for restricting the natural meaning of the words, and to do so, would in my opinion unreasonably hamper the police in their work of criminal investigation.
The Court concluded by saying that if the search was otherwise found to be unlawful, it remained within the proper exercise of the court’s discretion to refuse to exclude the evidence. It said ‘the police officers were acting reasonably and sensibly. If there was any illegality, it could only have been of a technical and not of a wilful or malicious nature…. Further, the evidence obtained was evidence which was important in respect of a serious criminal charge.
In Bain v The Police[5] it was sufficient that a licence check had described the appellant as a ‘drug user dependent’, to justify a search of a vehicle which in turn produced jewellery rather than drugs. Not only was it sufficient to justify a reasonable suspicion, but also the search and questioning while it proceeded was held to be lawful. The Court held that the discretion should not be exercised to exclude the evidence because if there was any unlawfulness by the police it was not deliberate and the quality of the evidence found was not affected by the officer’s conduct.
[5] (2011) 112 SASR 10.
In R v Rogers, Duggan J dealt with the question of the reasonableness of a police officer’s suspicion for the purpose of a search saying at [6]-[27] that:
The police officer walked over to the Falcon and had a conversation with the accused. He said in evidence that the accused appeared erratic. He was sweating and appeared very nervous. The police officer said in evidence that the accused’s nervous agitation was “totally out of the ordinary when compared with the usual behaviour of persons whose vehicles are stopped”. (my emphasis)
…
Brevet Sergeant Allen drew two important inferences from the accused’s behaviour. He believed the behaviour may have been due to drugs and that the acute nervousness suggested the accused had something to hide. He said in evidence that he has considerable experience in assessing whether persons are affected by drugs.
When the police officer went back to his vehicle at the time of this stop, he was given information about the accused over the police radio. The conversations were recorded. It is apparent that the police officer from the Port Augusta Police Station to whom he spoke was consulting police records at the time of the discussion over the radio.
…
A conversation with Sergeant Bryce Anderson, the officer-in-charge at the Peterborough Police Station, followed:
Bryce, I’ve just stopped a car. I’m west of Olary it’s a member of the Gypsy Jokers, he’s an older fella though but he’s very, very nervous and sweating about something when he probably shouldn’t be. He’s going directly to Adelaide on the Barrier Highway that’s what I’ve ascertained off him, I’m just wondering whether you could start making your way north and I’m still behind him heading towards Mannahill and we’ll stop and do a vehicle search … I’ve got a reasonable suspicion with this chap, he’s sweating like it’s a million degrees, he’s raving his head off there’s something up, he’s very nervous about something so I’m going to go with what I, with my suspicion and just wait for Sergeant Anderson to meet me.
…
In George v Rockett,[6] the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam:[7]
[6] (1990) 170 CLR 104 at 115.
[7] [1970] AC 942 at 948.
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”
The Court went on to draw a distinction between a suspicion and a belief:[8]
[8] (1990) 170 CLR 104 at 115.
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:[9]
[9] (1966) 115 CLR 266 at 303.
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor.[10] His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:[11]
[10] (2005) 222 CLR 612 at [75].
[11] [1925] SASR 286 at 291.
According to the plain meaning of the words there is therefore a clear distinction between things that are “suspected” of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
McHugh J also quoted from the judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield and Carter[12] where their Honours said:[13]
[12] [1927] SASR 192.
[13] [1927] SASR 192 at 196.
Suspicion lives in the consciousness of uncertainty.
… As Jacobs J observed in Manley v Tucs:[14]
Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
…
A suspicion may be based upon a number of considerations, some of which are more significant than others. In my view, the information which the witness received in relation to the accused’s possible involvement with a motorcycle gang was not an irrelevant factor for the witness to take into account. Obviously, it would be insufficient, by itself, to ground a relevant suspicion.
As to the previous drug matter, it was revealed during the hearing of this application that the accused had been charged with possessing cannabis, but that the charge had been withdrawn. The information which was relayed over the police radio was open to the interpretation that the accused had committed a drug offence. In my view, it was reasonable for the police officer to assume that the information was coming from a reliable source while a check of police records was being made. I am of the opinion that he acted reasonably in giving the information some weight in forming his opinion.
As I have said, however, the major factors in forming the suspicion arose out of the accused’s behaviour and demeanour. In my view, these matters were sufficient in themselves to give rise to a reasonable suspicion within the meaning of s 52(9) of the Act. The accused’s appearance was consistent with the effects of a drug and the extremely nervous appearance of the accused suggested to the police that the accused had something to hide. (my emphasis)
[14] (1985) 40 SASR 1.

In R v Fazio[15] the Court of Criminal Appeal concluded that the observations by a police officer of the accused being nervous; wishing to leave; with his speech shaky; and him starting to sweat was sufficient to give rise to a reasonable suspicion. The subsequent search was accordingly lawful.
[15] (1997) 69 SASR 54. See also Police v Edwards [2007] SASC 289.
In R v Willingham (No 2), supra, the Court of Criminal Appeal said:
That the questions to be asked … are first, whether the police officer held a genuine suspicion, and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
The relevance of driving on a road at night
As in Frantzis, Senior Constable “N” gave evidence that there had been some previous general criminal conduct in that area previously. However, in Frantzis the police had observed the vehicle and the driver. In that case the demeanour of the accused was significant. That Court accepted that the police had reasonable cause to detain the vehicle under that section.
The conduct of Senior Constable “N”
In the subject case I make it plain that I was impressed by Senior Constable “N” as a witness of truth. However, he did not know who the driver was. He knew nothing of the accused. Indeed, he did not even see the driver exit the vehicle. The vehicle was not speeding. While he saw some headlights travelling from the main road onto Morrow Road he did not identify the vehicle and did not observe the driver or any person in the vehicle, nor the number plates.
There is no suggestion that the vehicle had breached the Road Traffic Act nor was there any other reason to follow it on to private property save for the fact that it was late and on a Sunday night, and that there had been some criminal conduct in the past in that area.
His sole concern was that the vehicle might have been associated with some theft or robbery. He did not expect anyone to be at those premises but knew nothing of the operations conducted there. The fact is that when he arrived he found three cars in an area bounded by various warehouses. He checked the number plate which provided no information for him. He proceeded to search the vehicle and found nothing.
He called out and a response came from the accused in another building. Another man, an electrician, was also there. Both gave him details. Now unlike all of the other cases to which I have referred, there was at the time that he arrived at the private property absolutely nothing to give rise to a reasonable suspicion.
I accept that at law a police officer has tacit approval to be on private property. See Police v Williams[16] and Kuru v New South Wales.[17]
[16] [2014] SASC 177 at [276].
[17] (2008) 236 CLR 1.
Counsel for the accused submitted that in accordance with the case of Kuru v New South Wales a person who enters the land of another must justify that entry by showing that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. In the general sense, apart from cases at common law or by statute, police officers have no special right to remain on private property to conduct investigations.
In Halliday v Nevill,[18] the Court had held that the law will imply a licence in favour of any member of the public to go on land for a legitimate purpose that involves no interference with the occupier’s possession or injury to the person or property of the occupier or the occupier’s guests.
[18] (1984) 155 CLR 1.
It is plain that by the time he arrived at the site Senior Constable “N” had no suspicion that the driver of the subject vehicle was engaged in theft, or any other unlawful conduct.
The right of a person in possession to exclude others from those premises is a fundamental common law right. A police officer who remains on private property without the leave of a person in possession commits a trespass unless the entry is authorised or excused by law.
I accept that the entrance to the premises was not locked and there was no other indication that the entry by visitors was necessarily forbidden. The fact is that he did make contact with others in that general area including the accused and it could not be said that tacit approval continued to the time when the officer of his own motion decided to walk down to one of the other sheds (to see whether the driver might be there).
In my opinion until he embarked upon his investigation of the property there was no evidence to justify the search of the property.
In R v Nguyen[19] the Court of Criminal Appeal said:
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’…
The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers and having regard to the civil liberties abrogated by their exercise. It would not be reasonable to suspect that evidence of the earlier offending would be found in the house if the only occupant was the mother of an accused who was otherwise resident elsewhere.
[19] (2013) 117 SASR 432 at 437.
I find that he had no reasonable suspicion about the conduct of the driver of that vehicle at that time. This is not a case where drugs were found in the car or anything else that could give rise to a suspicion. It is plain that the officer embarked upon an investigation on that private property and in doing so acted unlawfully.
Of course, the police officers who subsequently attended did act lawfully in that they received information from that Senior Constable about the presence of cannabis and they attended with their search warrant and found the drugs the subject of the count. In R v Eggen & Eggen-Zeytoun.[20] I discussed the question of whether the subsequent search of premises which arose in consequence of the discovery of material unlawfully obtained ought to lead to the fruits of the subsequent search being excluded.
[20] [2016] SADC 26.
I repeat that there was nothing at that time to give rise to a reasonable suspicion to justify an investigation by the Senior Constable. I accordingly conclude that the search of the sheds was unlawful.
I also find that, subject to the discretion, the fruits of the subsequent search ought to also be excluded, upon the principles discussed in R v Eggen and Eggen-Zeytoun supra, and R v Rondo, supra.
Discretion
I turn then to the exercise of the discretion to exclude the evidence obtained during the search at the accused’s home. There is no utility in detailing the facts of the various cases in which judges of the Court of Criminal Appeal have discussed the relevant principles in R v Ioannidis;[21] R v Nguyen, to which I have referred; another case of R v Nguyen,[22] and R v Rockford.[23]
[21] [2015] SASCFC 158; (2015) 124 SASR 86.
[22] [2015] SASCFC 7.
[23] (2015) 122 SASR 391.
I turn to the principles of law with respect to the discretion to permit the tender of the evidence notwithstanding the findings of unlawful conduct, and the use of evidence subsequently obtained albeit tainted by that unlawful conduct.
In George v Rockett, supra, the High Court said that a search warrant authorises an invasion of premises without the consent of persons in lawful possession or occupation. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. The same is true of the exercise of a general search warrant. It said that:
In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against a need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension … of those who have broken the criminal law. Nevertheless, … it needs to be kept in mind that they authorize invasion of interests which the common law has always valued highly and … [goes] to great lengths to protect.
In R v Ioannidis, the Court of Criminal Appeal detailed the case law which stressed the fundamental freedoms of liberty, movement and privacy, noting that:
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.
In the case of R v Rockford, Stanley J, said that ‘[t]he right of a citizen to be protected from unlawful search and entry is an important civil right in our society’. In that case despite the fact that the police did not deliberately contravene the law in entering the property and the evidence obtained was cogent, the Court concluded that the proper exercise of the discretion was to exclude the evidence to ensure that courts are not demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
In the subject case, as in Rockford, the evidence obtained at the accused’s house was extremely cogent. Indeed, the prosecution case against the accused in respect of count 1 is entirely dependent upon its admissibility.
In R v Rondo[24] the Court of Criminal Appeal (NSW) considered a similar factual matter to the subject case. There had been an unlawful stoppage of a vehicle and an unlawful search of the vehicle. Subsequently the accused had made admissions at an interview. He was then taken to a house where he lived with his mother. The search at the house disclosed about 60 cannabis plants.
[24] (2001) 126 A Crim R 562.
The trial Judge had concentrated only upon the search of the home. His Honour permitted the evidence of the search of the home to be admitted because of its cogency.
The Court of Criminal Appeal (NSW) held that the trial judge had accordingly fallen into error. It said the impropriety or illegality must be viewed cumulatively and not disjunctively. It was necessary to look at the whole of the conduct which gave rise to the final search. It said that all of the impropriety flowed from the illegal stopping of the vehicle without reasonable cause or suspicion. It said that the court below had erred by not taking into account the earlier unlawful stop and search. The search of the house had followed from that unlawful search; the stopping of the vehicle had unlawfully impacted upon the applicant’s freedom of movement. It concluded that the failure to take into account that earlier unlawfulness had vitiated the trial judge’s discretion. Notwithstanding the cogency of the evidence found at his and his mother’s house and the admissions made by the accused, the proper exercise of discretion demanded the exclusion of all evidence subsquently obtained as a consequence of the unlawful stoppage.
While that case involved the application of s 138 of the Uniform Evidence Act I accept the principle that a court must consider the whole of the conduct of the police including the unlawful search of the vehicle and not just limit itself to the subject search when considering its discretion to exclude such evidence.
On the facts of this case I do not need to consider whether there is any wider principle of law as to the use of the fruits of an earlier unlawful search. In any event such a principle does not seem consistent with the dicta in Ridgeway v The Queen.[25]
[25] [1995] HCA 66.
In Coleman v Zanker,[26] the police officers who approached cars at night had no reason to suspect that the accused had committed or was intending to commit any offence. Olssen J concluded that the process did not fall within s 68 and the police officers had exceeded their authority by embarking upon an unlawful and an unauthorised search they could not be heard to complain about the evidence being excluded pursuant to Bunning v Cross.
[26] (1991) 58 SASR 7.
In R v Nguyen[27] the police had stopped a vehicle approaching premises in respect of which they were maintaining surveillance. The police had no suspicion about the car or its occupants. The suspicions centred upon the house. In those circumstances, it was held the police did not have a reasonable suspicion authorising a search.
[27] (2013) 117 SASR 432.
I have hesitated long and hard as to whether I ought to exercise my discretion to exclude the fruits of the subsequent search by the police who had acted on the unlawfully obtained evidence obtained by Senior Constable “N”.
Recently in R v Golja[28] the Court of Criminal Appeal detailed various factors relevant as to the Judge’s discretion namely:
·the nature of the offence charged;
·the probative value of the evidence sought to be excluded;
·whether the conduct of the police was deliberate or resulted from a mistake or misunderstanding of their obligations;
·the ease with which the police might have complied with the law;
·the legislative intention, if any, in relation to the law that is said to have been infringed; and
·whether the impugned conduct was encouraged or tolerated by those in higher authority in the police force.
[28] [2017] SASCFC 61 at [33]-[35].
On the facts of the subject case the offence the subject of count 1 constitutes serious criminal conduct. The evidence sought to be excluded is of high probative value. If Senior Constable “N” had a reasonable suspicion he could easily have requested assistance from an officer with a general search warrant. The fact is that he was a trespasser. He had no authority to continue to search for the driver.
Conclusion as to count 1
In my opinion in light of the unlawful search of the property by Senior Constable “N”, and consistent with the high public policy referred to in R v Rockford I exclude the evidence obtained in that search of Morrow Road on 15 April 2015. I accordingly rule that the prosecution will not be permitted to lead evidence of the drugs found at 60 Morrow Road at that time, the subject of count 1.
The facts of the subject case are more concerning than those considered in the case of R v Rockford. At least in that case the police were searching for the accused. In the present case, there was no proper basis for the police to conduct any investigation on the property.
I accept that, the right of the citizen in this case to be protected from an unlawful search and entry is an important civil right. The proper exercise of the discretion is to exclude the evidence of the Senior Constable to ensure that the courts are not demeaned by the uncontrolled use of the fruits of illegality in the judicial process. I further hold that the fruits of the subsequent search of the sheds, by the police ought to also be excluded on the principles discussed in R v Rondo, supra.
Counts 4 and 5 on 12 January 2016
Counsel for the prosecution Mr Wilson and counsel for the accused Mr Morrison provided written submissions on the question whether the evidence obtained by the police on 12 January 2016 ought to be excluded in the exercise of the Court’s discretion. They relied solely upon those written submissions. The facts which were not in dispute included that the police had observed a Holden Sedan being driven on O’Sullivan Beach Road, Lonsdale. They pursued the vehicle to the premises at 60 Morrow Road, Lonsdale. When they arrived, they found that the vehicle was empty with the keys still in the ignition and with the engine still running.
The driver’s door was open and the police observed documentation in the name of the accused, as well as a pouch containing $8,785 in cash found on the ground next to the open driver’s door. The police then searched the vehicle and located a plastic storage container concealed under the driver’s seat.
The police undoubtedly had a reasonable suspicion within the meaning of s 68 of the Summary Offences Act, and were empowered to conduct the subsequent searches.
The container included three plastic bags of a substance weighing 13.61 gms of which 10.79 gms was methamphetamine.
The police then located the accused sweating profusely with a bleeding shin apparently asleep on a bed within the Morrow Road premises. He had $1,515 in cash in his pocket and that together with the $8,785 in the pouch next to the abandoned vehicle gave rise to the unlawful possession charge in count 5.
The conduct of the police in respect of these counts is to be distinguished from that of Senior Constable “N” in respect of count 1. Further, Senior Constable “L” announced himself as a police officer when met at the door by a male who he knew to be Robin Maxwell, who was the occupier of the building. Senior Constable “L” deposed that Mr Maxwell, as owner, permitted him to enter those premises to see if there were any other persons inside. On that basis permission to enter the property was established and there is no basis for the evidence to be excluded. Similarly, Detective Brevet Sergeant “B” attended the Morrow Road premises on the same day and spoke to Mr Maxwell who granted permission for police to search his shed.
The prosecution submits that Senior Constable “L” acted on the basis of having an implied licence to attend the entry to Mr Maxwell’s shed and then only continued to search once he had obtained Mr Maxwell’s permission. There can be no suggestion that there was an express or implied refusal of permission to be on those premises or that any permission had been revoked.
I repeat that in R v Nguyen[29] the Court of Criminal Appeal set out in detail that which constitutes a reasonable suspicion. The accused submits that there is no admissible evidence to prove that permission had in fact been granted by the landlord. It was submitted that it would be unsatisfactory for the police to circumvent the protections by simply alleging that permission was granted without admissible evidence of the same particularly when the party who allegedly granted permission is not joined in the proceedings.
[29] (2013) 117 SASR 432.
In my opinion, there was sufficient evidence to prove that permission to enter had been granted. Accordingly, in my view there is no basis for excluding the evidence which was obtained by the police officers on that day. In any event even if I were to conclude that the investigations carried on by the police after discovering the vehicle were found to be an unlawful investigation I would exercise a discretion in favour of the evidence being admitted for reasons detailed by Stanley J speaking for the Court in R v Golja.[30] Accordingly the application for the exclusion of the evidence obtained by the police on that day is refused.
[30] [2017] SASCFC 61 at [33]-[35].