R v King - [2017] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KING
[2017] SADC 39
Reasons for Ruling of Her Honour Judge Schammer
7 April 2017
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with trafficking in a controlled drug, possession of prescribed equipment and diverting electricity – police entered the accused’s home lawfully to conduct a firearms audit pursuant to s 21(1)(f) of the Firearms Regulations 2008 – immediately prior to conducting the audit an application by a police officer for a warrant to search the accused’s home pursuant to s 52 of the Controlled Substances Act 1984 was refused – upon entry the accused’s home was searched and a grow room found – application by accused to exclude the evidence found during the search – whether the search was lawful pursuant to s 32(3) of the Firearms Act 1977.
Held: the search was unlawful. The evidence found during the search and a subsequent search thereafter is not admitted in exercise of the public policy discretion.
Controlled Substances Act 1984 (SA) s 32(1), 33LA; Firearms Regulations 2008 (SA) reg 21(1)(f); Electricity Act 1996 (SA) s 85(1); Firearms Act 1977 (SA) s 32, 32(1ab), 32(3), referred to.
R v Willingham (No.2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; Yuen v Police [2012] SASC 149; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51, discussed.

R v KING
[2017] SADC 39
Introduction

The accused, Ryan King, is charged on Information dated 7 March 2016 with three offences alleged to have been committed on 1 June 2015 at Elizabeth Vale namely:
1Trafficking in a large commercial quantity of a controlled drug, namely cannabis, pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the CSA’).
2Possession of prescribed equipment pursuant to s 33LA of the CSA; and
3Diverting electricity without proper authority pursuant to s 85(1) of the Electricity Act 1996.
On 3 April 2017 the accused filed an application pursuant to Rule 49 seeking an order that the evidence found during a search of his home at 9 Shaftsbury Rd, Elizabeth Vale on 1 June 2015 as referred to in the declarations of Bradley Galpin dated 14 September 2015 and Nathan Shepherd dated 3 August 2015 and 30 March 2017 (‘the search’) be excluded.
The accused asks the Court to exercise its discretion to exclude the evidence found during the search on public policy grounds on the basis that the search was unlawful.
The evidence found during the search includes but is not limited to, approximately 7.21 kg of female cannabis material found drying on two racks in bedroom 2 of the home.
The Onus
It is for the party seeking to exclude the evidence to establish on the balance of probabilities the reason or reasons for exclusion.
By way of summary, counsel for the accused submitted that although the search was purportedly undertaken for the purposes of an audit pursuant to Regulation 21(1)(f) of the Firearms Regulations 2008 (‘the Regulations’), in fact the accused’s home was entered and then searched with a view to ascertaining whether there were drugs or hydroponic equipment at the home, in circumstances where an application for a search warrant under the CSA had been denied.
In the alternative, it was submitted that the search was not permitted pursuant to s 32(3) of the Firearms Act 1977 (‘the Act’).
In response, the prosecutor submitted that Senior Constables Shepherd and Galpin had entered the accused’s home lawfully on 1 June 2015 for the purpose of undertaking an audit pursuant to the Regulations and that while at the home, Senior Constable Galpin formed a suspicion on reasonable grounds that there was loose ammunition at the home, as a result of which he conducted the search, exercising his powers pursuant to s 32(3) of the Act.
As such it was submitted that the search was lawful. In the alternative it was submitted that if I was satisfied the search was unlawful, a balancing of all of the relevant considerations meant that I should not exercise my discretion to exclude the evidence on public policy grounds.
The Voir Dire
I heard evidence on the voir dire from Senior Constable Nathan Shepherd (‘Shepherd’), Senior Constable Bradley Galpin (‘Galpin’), Constable Christopher Emmanuel (‘Emmanuel’) and the accused.
In addition, I had regard to numerous exhibits, namely:
VDP1        Operation Secure Action Message dated 27 May 2015.
VDP2        Crime Stoppers – Action Message dated 22 May 2015.
VDP3        Crime Stoppers – Action Message dated 19 December 2014.
VDP4        Photograph and plan of the accused’s home.
VDP5        Operation Secure Results Sheet dated 1 June 2015.
VDP6Photographs of the bookshelf near the entry to the accused’s home.
VDP7Disc depicting footage obtained inside the accused’s home on 1 June 2015.
VDP8        Computer printout regarding the accused’s firearms.
VDP9        Copy of the accused’s application for a firearms’ licence.
VDP10Photographs depicting 5 shotgun shells, being shells apparently seized from the accused’s home.
VDP115 shotgun shells marked police exhibit no.15/B81238-16, apparently seized from the accused’s home.
VDD1Case Management System Case Running Sheet Report printed 31 March 2017.
VDD25 shotgun shells produced by the accused and identified by him as having been on his bookshelf on 1 June 2015.
Following submissions from the prosecutor and defence counsel I ruled that the search was unlawful. I further exercised my discretion to exclude the evidence found during the search.
These are my reasons for ruling.
Chronology – events prior to police entering the home
The accused gave evidence that he held a firearms’ licence for approximately six years as at 1 June 2015. This evidence was not challenged.
As at 1 June 2015 the accused had four registered firearms in his possession being a 12 gauge shotgun, 2 x 22 bolt action rifles and a Tikka 270I rifle.
On 19 December 2014 police generated a ‘Crime Stoppers – Action Message’ with respect to the accused (VDP3). The majority of the ‘Subject Matter’ of that Action Message is subject to a claim for public interest immunity but it is stated that the information provided to Crime Stoppers relates to the accused ‘setting up grow room & unlicenced firearms’.
On 20 December 2014 police conducted an audit of the accused’s firearms pursuant to Regulation 21(1)(f) of the Regulations.
Regulation 21(1)(f) states:
It is a condition of a firearms licence that –
(a)…
…
(f) if the holder of the licence informed the Registrar, when applying for the licence, of the place at which he or she intended to keep firearms pursuant to the licence when not in use and the manner in which he or she intended securing those firearms, the holder of the licence-
(i) must allow, at any reasonable time, a police officer to enter and inspect the place at which the firearms are kept to ensure the firearms are so secured….
A ‘Case Running Sheet Report[1]’ generated by police following the audit on 20 December 2014 noted as follows:
….Attended and searched address. Firearms and ammunition are secure. Faint smell of cannabis in house however not enough to justify warrant. CCTV cameras at front of prems and gates surrounding prems.
Possible prems to keep an eye on in future.
[1] VDD1.
On 22 May 2015 a further Crime Stoppers – Action Message (R/S No.664 Act. No.619) was generated (VDP2). Again, the majority of the ‘Subject Matter’ of that Action Message is subject to a claim for public interest immunity but it is stated that the information provided to Crime Stoppers relates to the accused and refers to ‘grow cannabis – Elizabeth Vale’.
This Crime Stoppers Action Message was allocated to Senior Constable Shepherd to action sometime between 22 May 2015 and 30 May 2015. Senior Constable Shepherd gave evidence that the general procedure, upon receiving such an action, was to read the action, conduct checks into the person and make an assessment as to how to proceed with the investigation.
On 29 May 2015 an Action Message was generated with respect to the accused and issued the following day (30 May 2015) to Senior Constable Shepherd to action.
The Subject Matter of that Action Message[2] is again partly subject to a claim for public interest immunity but it is known that it stated:
Operation Secure Audit
**Information received suggests King holds a firearms lic and possesses numerous firearms…
[2] VDP1.
In a box on the Action Message entitled ‘Action Required (Relevant to: KING)’[3] it is stated:
Assess the above information and act accordingly.
C/S 15/5 R/S 664 Action 619 refers.
[3] VDP1.
Both Shepherd and Galpin gave evidence that they understood that Operation Secure was an operation headed by Firearms Branch, with duties allocated to each police station with the aim to ensure compliance of firearms owners with the provisions of the Act and the Regulations.
At the relevant time both Shepherd and Galpin were stationed at Elizabeth CIB in the Tactical Unit. They worked the same shifts in a small team of about four plus a senior officer.
Both gave evidence that upon receiving an Action Message pursuant to Operation Secure an officer is required to attend at the home of the firearms’ licence holder and conduct an audit on their compliance with the Act and Regulations. There is no time limit on when they are required to conduct the audit but it is expected that it would be done as soon as reasonably practicable.
Shepherd gave evidence that on either 30 or 31 May 2015 he attended at the accused’s address in company with Emmanuel to conduct observations to ascertain the address existed and to confirm the accused still resided at the address.
On 1 June 2015 both Shepherd and Galpin were working afternoon shift which commences at 3.30 pm. On that day Shepherd applied to a senior police officer for a Controlled Substances Act warrant to enable the accused’s home to be searched. That application was supported by material including printouts pertaining to the accused, his firearms’ licence and the firearms registered in his name, a photograph and the two Crime Stoppers Reports dated 19 December 2014 and 22 May 2015. The ‘Record of Warrant Application’ stipulates that the application was refused and a time is recorded thereon of 4.25 pm. Shepherd agreed the application was refused some time prior to 4.25 pm on 1 June 2015.
Shepherd gave evidence that thereafter he directed his attention towards completing the Operation Secure Action as required of him. He asked Galpin to accompany him during the audit, noting these audits are always done in company for safety reasons.
Shepherd said that he had no recollection of having any conversation whatsoever with Galpin about the content of either Crime Stoppers Report with respect to the accused or the fact that he had made an application for a Controlled Substances Act warrant which application had been refused prior to attending the accused’s home for the purpose of the firearms’ audit. He said the only conversation he could recall with Galpin was that Galpin did not want to attend to do the audit with him as he wanted to have dinner and did not want to waste his evening doing an Operation Secure check.
When it was put to Shepherd that if he suspected there was cannabis at a house he was going to check he would have told his fellow police officer of that fact he stated[4]:
No, I think – that would be inappropriate. I have already been refused a Controlled Substances Act warrant.
[4] T62.11.
He disagreed with the proposition that it would be inappropriate not to tell his partner before entering a home to conduct a firearms audit that there may be drugs there, given the potentially heightened security risk posed by that combination of factors. He stated that the partner would already be aware of the firearms risk associated with attending for such an audit.
Galpin gave evidence that he was not provided with any information about the accused prior to attending the accused’s home, save for the fact that he was told the purpose for attending was to conduct an Operation Secure check. When pressed on this issue in cross examination he maintained that he was not told by Shepherd that he had applied for a Controlled Substances Act warrant with respect to the accused’s home or that he had been refused such a warrant. By way of further explanation he stated[5]:
No, I would’ve been preoccupied with something else. He doesn’t know my workload. I don’t know his workload. It is irrelevant.
[5] T86.31.
He said he could not recall any conversation with Shepherd to the effect there may be drugs at the accused’s home, although he conceded it was possible such a conversation occurred. Nevertheless he said he would have remembered if he was told about a Crime Stoppers Report with respect to the accused and he had no memory of such a conversation. He said that he would have expected a briefing before attending any home where both drugs and firearms were suspected to be present and further he would expect to be attending at the home with a team in those circumstances.
Shepherd and Galpin arrived at the accused’s home at approximately 5.40 pm on 1 June 2016. A photograph of the home is included in Exhibit VDP4. The home is protected by relatively high colourbond fencing and a black gate facing Wexcombe Street. Shepherd said he rang a bell at the gate and the accused came to the gate from inside the home. Shepherd said he explained to the accused that they were there to conduct a firearms’ audit and the accused allowed them entry inside the home.
The evidence as to what happened during the audit
Shepherd gave evidence that upon being granted access to the home, the accused led him through the entry and lounge room to the kitchen. The accused’s firearms’ safe was located in the kitchen.
Exhibit VDP4 contains a plan of the accused’s home, not to scale, prepared by Emmanuel.
There was no dispute that the firearms’ safe was located in a position consistent with that marked by Shepherd on that plan.
Shepherd said that Galpin remained in the lounge room where there was also a female present. The kitchen and lounge room were partially open plan, meaning that Galpin was only a few metres away from Shepherd.
Shepherd gave evidence that upon being shown the safe he logged into his computer to access a program to enable him to conduct the check of the serial numbers of the firearms in the accused’s possession. He said the accused opened the safe with a key and presented his firearms one by one for him to check off the serial numbers.
He said that the firearms’ check was still in progress when he had a conversation with the accused as to whether or not there was anything outside of the safe that police wanted to know about. He could not recall precisely how that conversation started but that the accused had volunteered that he had loose ammunition outside of the safe as he could not fit it in the safe. Shepherd described the accused as being honest in this respect. He said the accused told him this ammunition was in a drawer of a cupboard, on top of which there was a television.
Shepherd could not say whether Galpin was aware of this conversation. He was adamant this conversation had occurred prior to Galpin commencing a search of the home.
Shepherd stated that in addition Galpin had located some insecure ammunition on a shelf near the entry. He was asked whether Galpin had communicated with him about that ammunition and stated that he could only recall the conversation he had had with the accused about the insecure ammunition underneath the television.
He was asked during examination in chief[6]:
Q:In terms of timing, are you able to recall when the ammunition on the shelf was located in respect of you carrying out the audit.
A:As far as I can recall I think it was after I had the conversation with Mr King about his insecure shotgun shells that were unable to fit in the secure area of the safe…
[6] T25.13.
In cross examination Shepherd denied that the accused had told him about the ammunition that was outside of the safe after Galpin had commenced the search and located the cannabis.
Shepherd gave evidence that he took notes of the conversation he had had with the accused about the loose ammunition. Specifically he stated[7]:
I took notes of the conversation I had after Mr King pointed out the shotgun shells to me. They were outside the safe in the drawer. I then made notes of that after the cannabis was located.
[7] T31.13.
By way of further clarification he said that after being told about the loose ammunition in the drawer below the television by the accused, he asked him, as per what was recorded in his notes ‘Do you have any other ammunition in the house that we should know about?’ He said Galpin was present in the lounge room during this conversation and it was only thereafter that Galpin commenced the search. He said he did not know what Galpin had heard with respect to the conversation although he said that while Galpin was in the lounge room he was only 1 to 2 metres away from him.
He said that thereafter he could recall still being in the kitchen with the accused when Galpin returned from the hallway and said that he had found a grow room. He said he was still undertaking the audit at the time and there was still one firearm left to be checked.
Shepherd was asked about his notes with respect to the conversation referred to above. The following exchange occurred in cross examination[8]:
[8] T66-67.
Q:You made notes of a conversation you had with Mr King following the discovery of the drugs, that’s right.
A:    Yes, prior to the video camera being activated.
Q:I just want to be clear about what was said there. You asked him – have you got your notes there.
A:    Yeah, I have got a copy of the typed statement.
Q:You read back this conversation to him in your notes, ‘Do you have any firearms or ammunition elsewhere in the house? A: No’, yes.
A:    Yes.
Q:Then you said ‘I’m going to ask you some further questions, you are not obliged to answer them but anything you do say may be given in evidence’.
A:    Yes.
Q:    He answers ‘Yes’ and then you say ‘What’s the go with power?’
A:    Yes.
Shepherd disagreed with a proposition put to him that this conversation had occurred in its entirety after the cannabis was found and that the notes therefore recorded a continuous conversation as such. Shepherd said that the question with respect to the loose ammunition and firearms had occurred earlier and before the cannabis was found and that the conversation was just written in that way as that was the order in which the topics were discussed. Shepherd maintained there were two separate conversations recorded therein.
Galpin gave evidence that upon being given access to the home by the accused he stood in the lounge room while Shepherd walked into the kitchen with the accused to commence the audit. He explained that there was a female present in the lounge room sitting on a chair at a computer table to his right. He said he stood in the lounge room while the accused obtained the key to the safe and then opened it for the purposes of Shepherd’s inspection.
He said his attention was drawn to the female and a bookshelf to her right. He said that on the bookshelf he saw various personal effects and some shotgun shells which were on the shelf at about eye level. He said he saw those shot gun shells ‘in a matter of seconds or minutes’ after he had entered the lounge room.

The bookshelf is located at or adjacent to the rectangle marked on the plan (VDP4) to the right of the front door in the entry hall.
Galpin said he was standing just adjacent to the bookshelf when he first observed the shot gun shells and he was also positioned near the female as he was cautious of the fact she was present in the room. In cross examination he elaborated that he did not want to have his back to the female and that he was cautious of being in such a small confined space with another person present.
He said that as the kitchen and lounge room were virtually one room, he was also positioned only a couple of steps away from where Shepherd was standing in the kitchen conducting the audit. He was asked if he could hear what was being said in the kitchen and his response was[9]:
If my attention was drawn to a conversation, I may have heard.
[9] T89.24.
The loose shotgun shells on the bookshelf can be seen in the photographs marked as VDP6. Galpin said that when he saw the shotgun shells on the bookshelf he noted that they were not secured and thought that there may be other ammunition liable for seizure. He could not recall if he had picked up the shotgun shells at any time. He said that they had been seized as part of the investigation.
Galpin had no recollection of hearing any conversation between Shepherd and the accused with respect to loose ammunition prior to observing the shotgun shells on the bookshelf and he had not been directed by anyone to any other loose ammunition at that time. He did not believe he had a conversation with anyone upon first seeing the shotgun shells on the bookshelf, although he said he may have intimated towards them.
Galpin said that having seen the loose ammunition on the bookshelf he then conducted ‘a further search’ of the house under s 32 of the Act (my emphasis).
Galpin described this search as ‘a further precursory search’ for loose ammunition or firearms with his concern to be to ascertain if there was anything in plain sight. He believed that at this time Shepherd had either just finished the audit or was close to finishing the audit in the kitchen.
Later in response to a question in cross examination Galpin described the search he conducted at that time as ‘another precursory search to see if there was any other insecure firearms or ammunition lying around’ (again, my emphasis).
Galpin said he walked down the hallway to bedroom 1 on his left. He did not open any drawers or the like in that room, nor did he enter the room, he merely peered into the room, from a position at the door, just to ensure there were no firearms or ammunition in plain sight. He said if he was by himself he would not have started doing a full search without knowing the full layout of the house and the backyard so what he was doing was just a general precursory search and once that was done he would have come back and conducted a proper search.
He said he looked in bedroom 2 and located a significant amount of cannabis drying on two tiers and associated hydroponic equipment.
It was put to Galpin in cross examination that upon entering the home and the lounge room, he had remained there for only a short period of time before he walked out to the back of the house accompanied by the accused, then to the shed before re-entering the home and walking left down the hallway to the bedrooms. He disagreed with that and maintained that while in the lounge room he had seen the loose ammunition on the bookshelf and that he had then walked straight from the lounge room towards bedroom 1.
Galpin was asked in cross examination why he had not commenced the search in the lounge room by opening drawers and the like and he said that the reason he had not done so was because Shepherd was still in there.
It was suggested to Galpin that he had started the search because he was merely wondering if there was anything else of interest in the house. Galpin maintained that he had commenced the search because he had a suspicion that there may have been other ammunition liable to seizure in the house.
When it was suggested to him that he had not then looked for any such ammunition Galpin said[10]:
…I went to bedroom 1, I commenced my look. I did look’.
[10] T96.11.
It was suggested to Galpin that in fact what he was looking for was cannabis, not loose ammunition. Galpin denied this and maintained that he did not know there was cannabis at the address.
Mr King gave evidence about the events on 1 June 2015.
He said that he was approached by two police officers at his front gate late on the afternoon of 1 June 2015. They explained to him who they were and stated that they had attended to conduct a firearms’ audit. He let them into his home.
He led both officers through the front door of the home and into the lounge room. One officer stopped in the lounge room and stood about 2 to 3 m away from a bookshelf located in the entry hall. The other officer (Shepherd) followed him further into the kitchen where his gun safe was located. He retrieved the key to the safe and opened it. He then retrieved one of his guns from the safe and handed it to that officer, turned to grab another one, but was told by the officer he would inspect the firearms one at a time.
He said that officer pulled out his bookwork and he watched him for a short period of time, around 10 seconds, before being called by the other officer to accompany him ‘out the back’. He said he assumed that Galpin was looking for firearms or similar as part of the audit. He said at this stage Galpin had only been in the lounge room for approximately 30 seconds.
Mr King said he then left the kitchen and walked with the other officer (Galpin) through the lounge room and up the hallway into the laundry, where there was a door leading to the back yard. He said Galpin had a torch and was using that to see as they walked around the back yard to the side (adjacent to bedroom 3 as marked on the plan in VDP4) where he said there was a chicken pen which blocked off the back yard from the front.
He said that Galpin had asked if he had a shed. The shed was located in the front yard in front of bedrooms 1 and 2. He said they re-entered the home through the back door and then both walked straight out through the front door to enable Galpin to look inside the shed, again using his torch. He said Galpin looked inside the shed for about 5 seconds and then they both came back inside the house through the front door.
He said that at that point in time Galpin went to turn left to walk down the passage towards the bedrooms. He said rather than follow Galpin he went into the lounge room and sat on the couch, as he knew Galpin was heading towards bedroom 2 and would shortly find the grow room. He said Galpin returned shortly thereafter and said words to the effect of ‘he’s got a grow room’. The other officer was still undertaking the audit when this occurred.
Mr King said Galpin then left the room to make a phone call and get a video camera. He said thereafter he was asked by Shepherd if he had any illegal weapons or anything else they needed to know about and he told him that he had some ammunition in a box under his bed and in a cupboard and that he had an ice pipe. He thought this discussion had occurred while Galpin was retrieving the camera and that by this time the police had been at his home for about 10 minutes.
He denied having any conversation about loose ammunition with Shepherd prior to Galpin locating the grow room and said he had not done so as he had cannabis in the house.
The shotgun shells
Emmanuel gave evidence that he was tasked to attend at the accused’s home on 1 June 2015 and made electronic notes of his attendance using a portable laptop he had with him. He was allocated the role of Exhibits Officer in relation to this matter. As part of that role he had taken the photographs tendered as Exhibit VDP6 depicting the loose shotgun shells on the bookshelf. He said those shells had been located by Galpin, that he had then observed the shells himself in situ and taken the photographs of the shells in situ. He said he then took custody of the shotgun shells and recorded them in the Exhibits Log as Exhibit No.15/B8138-16. Emmanuel gave evidence that the shotgun shells seized by him from the bookshelf were depicted in the photograph tendered as Exhibit VDP10.
It was suggested to Emmanuel in cross examination that the shotgun shells that can be seen on the bookshelf in the photograph included in VDP6 were not the shotgun shells seized by police and marked Exhibit No.15/B8138-16. He disagreed.
It was also suggested to the various witnesses by counsel for the accused that the shot gun shells on the bookshelf were merely ornamental and did not contain any pellets. The police witnesses were uncertain whether or not they contained pellets and did not necessarily agree with the description of the shells as being merely ornamental.
In his evidence the accused maintained that the 5 shotgun shells that can be seen in the photograph in Exhibit VDP6 were not seized and that at the time of the search contained no pellets. He produced to the court 5 shotgun shells that he claimed were the shotgun shells depicted in VDP6. These shotgun shells are very light in weight and do not contain any pellets.
He said that the shotgun shells had previously been on his belt but he had put them on the bookshelf for display as he was a keen hunter. He said that the pellets (or bullets) were in various receptacles on the bookshelf such as the glass bowl to the left of the shells and the silver cup behind them. He described the pellets as being encased in a red coloured wadding similar to the colour of the contents of the glass jar.
In cross examination the accused maintained that the shotgun shells he had produced to the court were those depicted in VDP6 and denied he had tried to find some shotgun shells that matched them, but had failed.
The shells comprising Exhibit No.15/B8138-16 were later tendered by the prosecution as Exhibit VDP11. These shotgun shells are much heavier than those tendered by the accused and it can be inferred from their weight that they contain pellets.
Findings re shotgun shells
Although care is required to be taken when attempting to conduct comparisons based on photographs, I am satisfied from a careful analysis of the photographs in Exhibit VDP6 and Exhibit VDP11 that the shot gun shells tendered as VDP11 are the same shot gun shells as appear in VDP6. I am further satisfied that the shotgun shells produced to the court by the accused and tendered as VDD2 are not the shotgun shells depicted in VDP6.
At one end of each shotgun shell is a brasslike cap (or similar). The shotgun shells in VDP11 all have quite tarnished brasslike caps whereas the shotgun shells in VDD2 have much cleaner, brighter caps. The shotgun shells depicted in the photographs in VDP6 appear to have quite tarnished brasslike caps.
The dark green shotgun shell located behind the red shotgun shell depicted in the photographs appears to have eight triangular wedges at one end. The green shotgun shell in Exhibit VDP11 has eight triangular wedges at one end, the green shotgun shell produced by the accused has only six such wedges.
There is writing on several of the shotgun shells produced by the accused which writing is not apparent on the shotgun shells depicted in the photographs.
I find that Emmanuel seized the shotgun shells that were located by Galpin on the bookshelf in the entry hall and that those shotgun shells were those tendered as Exhibit VDP11. I further find that they obtain pellets and are therefore live ammunition.
I reject the accused’s evidence on this issue.
Findings
The power to enter the home
There is no dispute that when the accused applied for his firearms’ licence he had informed the Registrar of Firearms of the place he intended to keep firearms and the manner in which he intended to secure those firearms. It was also agreed that the accused notified the Registrar of Firearms when he changed residential address (and therefore of any changes in the address at which the firearms were being stored).
Accordingly, the conditions of the accused’s firearms licence and Regulation 21(1)(f) of the Regulations gave Shepherd and Galpin the authority ‘to enter and inspect the place at which the (accused’s) firearms are kept’ to ensure the firearms were being secured as per the Act and Regulations.
I accept the evidence of Shepherd that a purpose of his entry to the accused’s home was to conduct such an inspection. I further accept Shepherd’s evidence, supported by both Galpin and the accused, that upon entering the home he did in fact conduct such an inspection.
As such the entry by Shepherd and Galpin into the accused’s home was lawful.
The power to search the home
Galpin gave evidence that he made the decision to search the accused’s home as having seen the loose ammunition on the bookshelf he held a suspicion that there that there may have been other ammunition liable to seizure in the house.
Section 32(3) of the Act states:
(3) A police officer may enter and search any premises in which the police officer suspects on reasonable grounds—
(a) there is a firearm, firearm part, silencer, prohibited firearm accessory, mechanism, fitting, ammunition or licence liable to seizure under this section; or
(b) a firearm is kept contrary to the security requirements of this Act.
Further, s 32(1ab) of the Act states:
If a police officer suspects on reasonable grounds that a person has possession of ammunition that has been acquired or is held in contravention of this Act the police officer may seize the ammunition.
There are numerous authorities which discuss the concept of what may be a reasonable suspicion, as compared to a simple suspicion, or indeed a belief.
In R v Willingham (No.2)[11] (per Gray, Sulan and Stanley JJ) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable is as follows:
The questions to be asked in each case 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.
[11] [2012] SASCFC 104, 10.
A number of more recent Court of Criminal Appeal cases have discussed the meaning of ‘reasonable suspicion’.
In R v Nguyen[12]the Court 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.
[12] (2013) 117 SASR 432, 21.
And further, at [22]:
Importantly, s 52(6) and s 52(9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise (R v Davidson (1991) 54 SASR 580, 584). It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
In R v Nguyen,[13] the Court reiterated these principles regarding what constituted a reasonable suspicion.
[13] [2015] SASCFC 7.
If, as claimed by Galpin, he saw the 5 shotgun shells on the bookshelf and that having seen those loose shells he suspected there was further loose ammunition (or insecure firearms) in the home, in my view such a suspicion would constitute a ‘reasonable suspicion’ within the meaning of s 32(3) of the Act.
In Yuen v Police, His Honour Justice White considered the specific interpretation to be given to s 32(3) of the Act and noted that given the broad powers given to police under the Act it was not necessary to give that sub-section an enlarged construction. At [16] he stated[14]:
…there is good reason to construe s 32(3) as requiring police officers to have the requisite suspicion at the time of each of the activities which it authorises.
[14] [2012] SASC 149.
As such, the relevant question is whether at the time Galpin made the decision to conduct the search, he had a reasonable suspicion in satisfaction of s 32(3) of the Act.
To answer this question it is necessary to make a number of findings of fact and observations as to the reliability of the witnesses.
Earlier in these Reasons I made findings with respect to the shotgun shells depicted in the photographs and the shotgun shells tendered respectively by the prosecution and the accused. Those findings are adverse to the accused. As such, I have approached the rest of the accused’s evidence with considerable care and caution, particularly where it is contrary to the evidence of the other witnesses and is otherwise uncorroborated.
However, a very careful analysis of the evidence given by Shepherd and Galpin as to the sequence of events leading up to both the entry to the home and the search causes me to have considerable doubts as to the reliability of that evidence on the important issue as to the timing of Galpin’s discovery of the loose ammunition.
In short, I find that it is more likely than not that Galpin only found the loose ammunition on the bookshelf after he had found the cannabis in bedroom 2 (and therefore after he had conducted the search).
As such, I find that at the time Galpin commenced the search he did not have a suspicion on reasonable grounds that there was ammunition liable to seizure as per s 32(1ab) of the Act.
By reference to the chronology referred to above, it is apparent that the Operation Secure Action dated 27 May 2015 (VDP1) was generated shortly after the receipt by police of the Crime Stoppers Report (being the subject of the Crime Stoppers Action Message R/S No.664, Act.No.619) (VDP2).
It is noteworthy that despite Mr King having held a firearms’ licence for approximately 6 years at that time, he had only been the subject of one previous firearms audit pursuant to the Regulations, being an audit conducted on 20 December 2014. During that audit the accused’s firearms and ammunition were found to be secured appropriately.
Further it is noteworthy that the earlier audit was conducted the day after a Crime Stoppers Action Report dated 19 December 2014 (VDP3) which was generated in response to a call received by police suggesting the accused was setting up a grow room and had unlicensed firearms.

Both Shepherd and Galpin gave evidence to the effect that there was not necessarily any link between the receipt of the Crime Stoppers’ Report in each instance and the subsequent allocation of the firearms’ audit, although Shepherd acknowledged that he had been involved in one prior audit in similar circumstances.
Common-sense dictates that there was a correlation between the timing of the issue of the Operation Secure Action (VDP1) and the receipt of the second Crime Stoppers Report with respect to the accused (and indeed that it is no coincidence that the first firearms’ audit of the accused occurred almost immediately upon receipt of the first Crime Stoppers Report).
Indeed the Operation Secure Action Message (VDP1) makes specific reference to the Crime Stoppers Report and the ‘Action Required’ includes a reference to the Crime Stoppers report and a request to ‘assess the above information and act accordingly.
I make no criticism of the police in this respect and understand that from a community safety perspective it is imperative that registered firearms holders be monitored to ensure that they are complying with their licence obligations, particularly in the face of information provided by the public which may suggest that they are not so complying.
However, the fact remains that there was a correlation between the timing of the Operation Secure Action and the receipt of the Crime Stoppers report suggesting there was a grow room at the accused’s home. During cross examination Senior Constable Shepherd would not acknowledge any such correlation in the sense that he refused to state that there was any information in the ‘Subject Matter’ of that Action Message relating to the Crime Stoppers Report. There was lengthy and repeated questioning of him in that respect.
Eventually it was conceded by the prosecutor that there was a reference in the Operation Secure Action Message (VDP1) to the information which was the subject of the Crime Stoppers’ Report. Shepherd’s reluctance to concede this was unusual and in my view was not simply due to a concern that to do so would in some way be in conflict with a claim for public interest immunity with respect to the content of the Crime Stoppers Report. Rather my impression was that Shepherd was being overly careful to attempt to present the two actions he received (VDP1 and VDP2) as being separate and distinct and in no way inter-related.
Upon receiving both Actions, Shepherd’s first response was to conduct observations of the home in response to VDP2, the Crime Stoppers Action Message, so as to ensure the address in question existed and the accused was still residing there.
He then applied for a warrant pursuant to the CSA to search the accused’s home, which application was refused at or about 4.25 pm on 1 June 2015.
Shepherd and Galpin arrived at the accused’s home at 5.40 pm that same day to conduct the firearms audit.
Despite Shepherd’s evidence to the contrary, it is simply implausible that he did not discuss with Galpin the fact of or the content of the information in the Crime Stoppers Action Message prior to their attendance at the accused’s home. The possibility that there was cannabis growing at the home in combination with the presence of four firearms represented a significant safety issue to both officers. It is inconceivable that Shepherd would not have mentioned this to Galpin before they entered the home.
Further, the Operation Secure Action specifically referred to the content of the Crime Stoppers Report and requested Shepherd to ‘assess the above information and act accordingly’. As such, I simply do not accept that Shepherd withheld this information from Galpin.
I find that at the time the officers entered the accused’s home, both of them knew of the fact of the Crime Stoppers Report and that there was a possibility the accused was growing cannabis at the home. I further find that having regard to the content of the Operation Secure Action Message, the attendance of Shepherd and Galpin at the accused’s home was for a dual purpose - to legitimately conduct the firearms audit but at the same time to utilise the audit as an opportunity to investigate the veracity of the Crime Stoppers Report.
Shepherd maintained he had a conversation with the accused shortly after he commenced undertaking the firearms audit wherein the accused allegedly volunteered to him the fact that he had some loose ammunition in a drawer under the television cabinet in the lounge room. The accused denied any such conversation occurred at that time. Further, despite being only a few steps away, Galpin gave evidence that he did not hear this alleged conversation. Had such a conversation occurred, Galpin should have heard it. The fact he did not, supports a finding that it is more likely than not that such conversation did not occur at that time and supports a finding, consistent with Mr King’s evidence, that he did not tell Shepherd about any loose ammunition until after the cannabis was located by Galpin and that such conversation occurred when Galpin left the house to retrieve the video camera.
Galpin gave evidence that it was upon sighting the five shotgun shells on the bookshelf that he suspected there was loose ammunition in the house and made the decision to search the house pursuant to s 32(3) of the Act. However, Galpin had no recollection of advising Shepherd (or Mr King) of the fact that he had located that loose ammunition and/or of his intention to leave the lounge room to undertake any such search.
Galpin had said he was concerned at the presence of the female in the lounge room so had been looking in her direction while he was in the room with her (and had thus been looking towards the bookshelf). However, in walking away to search the house alone, as he claims to have done, he would have been leaving Shepherd alone in a small confined space with both Mr King and the female, apparently at a time when he suspected there was insecure ammunition and/or firearms in the home. It is unlikely that he would leave his partner alone with two people in those circumstances and extremely unlikely that at the very least he would not have first informed Shepherd of what he had found and why he was leaving the room.
Further, had Galpin sighted the five shotgun shells prior to undertaking the search, one may anticipate that he would have first searched the lounge room (or the kitchen) having regard to the fact the firearms audit was still taking place in that location. From a safety perspective it follows that if Galpin was genuinely concerned about the possibility of insecure ammunition or firearms within the home he would first rule out the presence of the same from the confined space in which Shepherd was working. He did not.
In addition, upon allegedly commencing the search, Galpin did not open any drawers or cupboards to actively search for loose ammunition or firearms. Rather he conducted a very general (or ‘precursory’ search) by simply opening the drawer of bedroom 1, scanning the room briefly from that position and then moving on to do the same at bedroom 2.
Galpin’s actions in this respect are not consistent with him conducting a search for loose ammunition or firearms pursuant to s 32(3) of the Act as he claims. I consider that his actions are much more consistent with conducting a search for cannabis.
I have previously referred to the terminology used by Galpin when describing the search. He described it not only as a ‘precursory’ search, but as a ‘further search’ and as an ‘another search’. The use of such terminology is inconsistent with the search in fact being the first search undertaken by him of the property that night. Rather the use of such terminology is consistent with Galpin’s search for loose ammunition and firearms being conducted after an earlier search, being the search which led to the discovery of the grow room in bedroom 2.
In this regard, the contents of the discussion between Shepherd and the accused as recorded in Shepherd’s notebook are also telling. Shepherd gave evidence that the conversation he read back to the accused and recorded in his notebook, had occurred in several steps and was not a continuous conversation. However, on its face, the notebook entries read as if the first question with respect to loose ammunition or firearms was asked immediately prior to Shepherd cautioning the accused as to his right to silence and the question that immediately followed with respect to the power.
In his earlier evidence Shepherd said that upon the accused volunteering to him the fact he had loose ammunition in the drawer in the TV cabinet he had then asked him if he had any other loose ammunition, to which the accused responded no.
When the notebook entries are read in conjunction with Shepherd’s earlier evidence, this supports a finding that any conversation(s) as between the accused and Shepherd with respect to loose ammunition occurred after the cannabis was found.
Having regard to the whole of the evidence I find it is more likely than not that Galpin had not sighted the five loose shotgun shells on the bookshelf prior to conducting the search of the home.
I find that it is more likely than not that Galpin commenced to search the accused’s home shortly after the officers were led into the lounge room by the accused and that what Galpin was in fact undertaking was ‘a precursory search’ as described by him, but a precursory search for cannabis, rather than for loose ammunition or firearms.
I do not accept that Galpin would leave Shepherd alone in such a small confined space with both the accused and the female if he had in fact sighted loose ammunition on the bookshelf and if he did genuinely suspect that there was loose ammunition or firearms elsewhere in the home.
I find that at the time Galpin commenced the search he did not have a suspicion based on reasonable grounds that there was ammunition liable to seizure as per s 32(1ab) of the Act.
I find that the search was unlawful.
Discretion
Evidence obtained by means of unlawfulness or unfair acts is not, by that reason alone, inadmissible. As stated by White J in Yuen v Police at [29][15]:
Statutory qualification apart, the unlawfulness, when it exists, enlivens a discretion in the Court to reject evidence which is otherwise relevant and admissible.
[15] [2012] SASC 149.
Such evidence is only to be excluded in the exercise of discretion in accordance with established principles.
In R v Ireland[16], Barwick CJ stated:
…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 or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[16] (1970) 126 CLR 321, 335.
In Bunning v Cross[17], Stephen and Aickin JJ (Barwick CJ agreeing) said:
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. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[17] (1978) 141 CLR 54, 74.
The accused was in possession of over 7 kg of female cannabis material, which had been hydroponically grown at his home and in circumstances where the power supply had been tampered with. This was very serious offending. The exclusion of evidence found during the search will necessarily prevent the accused being prosecuted for such offending.
However, there are other matters of significance in the exercise of the discretion as set forth in R v Rockford[18]:
…it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not to be 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 ad 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.
[18] [2015] SASCFC 51, 39.
In this instance, I am not satisfied that the unlawful conduct on the part of the police was the result of any misunderstanding or misapprehension as to the extent or scope of their powers.
I have found that at the time he undertook the search, Galpin knew that it was suspected there was cannabis in the home and further he knew that Shepherd had applied for a warrant under the CSA which application was rejected. The search was both unlawful and improper and Galpin knew, or ought to have known that to be the case.
As such, I exercise my discretion to exclude the evidence found during the search. Following the search, a further search of the home was conducted under the authority of a general search warrant. However that general search warrant was only issued on the basis of the information ascertained during the search. It follows that the evidence found during the course of that further search is tainted by the unlawfulness of the earlier search and is also excluded.