R v Kola

Case [2002] SASC 203

R  v  KOLA
[2002] SASC 203

Court of Criminal Appeal:  Doyle CJ, Perry and Lander JJ

  1. DOYLE CJ:            This is an appeal by leave against a conviction recorded by the District Court.

  2. The appellant was convicted on the verdict of a jury of one count of possessing cannabis for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“the CSA”). The trial Judge imposed a sentence of imprisonment for three years, and fixed a non-parole period of two years in relation to that head sentence. The Judge suspended the sentence, upon the appellant entering into a bond.

    The facts

  3. On 25 August 2000, the appellant was stopped by police at a breath testing station (“the BTS”) that had been set up on Salisbury Highway.  Senior Constable Kirk approached the appellant’s car and told the appellant that the police were conducting random breath tests and licence checks, and he asked to see the appellant’s driver’s licence.  The appellant said he was not carrying his driver’s licence.  Senior Constable Kirk then noticed a strong smell of cannabis coming from inside the vehicle.  He spoke to a fellow officer, who indicated he could also smell cannabis.  Senior Constable Kirk noticed a travel bag on the front seat of the car.  He asked the appellant what was in the bag.  The appellant opened the bag.  The bag contained a number of shopping bags containing cannabis.

  4. The police searched the car and found a suitcase on the back seat of the car containing some more bags of cannabis.  The police arrested the appellant and charged him with possessing cannabis for sale.

  5. The appellant was not required to submit to an alcotest.  Senior Constable Kirk became suspicious that the appellant was in possession of cannabis before an alcotest was conducted.  The appellant was not required to submit to an alcotest at any stage after that.

  6. Following the appellant’s arrest at the scene, he was taken to the Elizabeth Police Station.  Later that evening, Senior Constable Kirk obtained a search warrant to search the appellant’s home.  In the house, the police found cannabis and equipment for cultivating cannabis.  They also found a notebook containing names, telephone numbers and numerical amounts, and other material that indicated the appellant was engaged in cultivating cannabis for sale.

  7. The police also searched a large shed on the appellant’s premises.  The shed was set up with equipment suitable for cultivating cannabis, and cannabis was scattered about the floor.  Further material suitable for cultivating cannabis was found in a smaller shed adjacent to the large shed.

    The appeal

  8. Two grounds were argued on appeal.

  9. The first ground is that the BTS was not lawfully established, that accordingly it was unlawful for the member of the police force concerned to stop the appellant, and that the search of his vehicle and home, and the discovery of incriminating evidence in the vehicle and in the home were tainted with the illegality that attached to the original unlawful stopping.  Accordingly, it is…

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AGLC
R v Kola [2002] SASC 203
Case
[2002] SASC 203
Decision Date

CaseChat Overview and Summary

The case of R v Kola involved the appellant, who was convicted of possessing cannabis for sale, in contravention of s 32(1)(e) of the Controlled Substances Act 1984 (SA). The trial judge imposed a sentence of imprisonment for three years, with a non-parole period of two years, which was subsequently suspended upon the appellant entering into a bond. The primary legal issues in this appeal centered around the legality of the breath testing station (BTS) where the appellant was initially stopped, and whether the evidence obtained from the subsequent search and arrest should have been excluded due to the alleged unlawful establishment of the BTS.

The court examined whether the BTS was lawfully established, which determined the legality of the subsequent search and arrest. The court held that the BTS was lawfully established, thus there was no basis for excluding the evidence obtained from the searches. The court considered the discretion of the trial judge to exclude evidence obtained by unlawful means, but found that there was no evidence of conscious wrongdoing or recklessness on the part of the police officers involved. The court also evaluated whether the judge adequately considered the exercise of discretion under Bunning v Cross (1978) 141 CLR 54, concluding that the judge's decision not to exclude the evidence was appropriate.

Ultimately, the appeal was dismissed by the court, with both the Chief Justice and Lander J concurring that the appeal should be dismissed. The court determined that even if the BTS was unlawfully established, it would not have led to the exclusion of the evidence, given the lack of evidence of intentional misconduct and the proper interpretation of the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was convicted on the verdict of a jury of one count of possessing cannabis for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“the CSA”). The trial Judge imposed a sentence of imprisonment for three years, and fixed a non-parole period of two years in relation to that head sentence. The Judge suspended the sentence, upon the appellant entering into a bond.The facts On 25 August 2000, the appellant was stopped by police at a breath testing station (“the BTS”) that had been set up on Salisbury Highway. Senior Constable Kirk approached the appellant’s car and told the appellant that the police were conducting random breath tests and licence checks, and he asked to see the appellant’s driver’s licence. The appellant said he was not carrying his driver’s licence. Senior Constable Kirk then noticed a strong smell of cannabis coming from inside the vehicle. He spoke to a fellow officer, who indicated he could also smell cannabis. Senior Constable Kirk noticed a travel bag on the front seat of the car. He asked the appellant what was in the bag. The appellant opened the bag. The bag contained a number of shopping bags containing cannabis. The police searched the car and found a suitcase on the back seat of the car containing some more bags of cannabis. The police arrested the appellant and charged him with possessing cannabis for sale. The appellant was not required to submit to an alcotest. Senior Constable Kirk became suspicious that the appellant was in possession of cannabis before an alcotest was conducted. The appellant was not required to submit to an alcotest at any stage after that. Following the appellant’s arrest at the scene, he was taken to the Elizabeth Police Station. Later that evening, Senior Constable Kirk obtained a search warrant to search the appellant’s home. In the house, the police found cannabis and equipment for cultivating cannabis. They also found a notebook containing names, telephone numbers and numerical amounts, and other material that indicated the appellant was engaged in cultivating cannabis for sale. The police also searched a large shed on the appellant’s premises. The shed was set up with equipment suitable for cultivating cannabis, and cannabis was scattered about the floor. Further material suitable for cultivating cannabis was found in a smaller shed adjacent to the large shed.The appeal Two grounds were argued on appeal. The first ground is that the BTS was not lawfully established, that accordingly it was unlawful for the member of the police force concerned to stop the appellant, and that the search of his vehicle and home, and the discovery of incriminating evidence in the vehicle and in the home were tainted with the illegality that attached to the original unlawful stopping. Accordingly, it is argued, the Judge should have exercised his discretion to exclude all of the evidence obtained after the appellant was stopped. Involved in this ground of appeal is a submission not put to the District Court Judge. It is that the Judge could and should have inferred that there were documents in the possession of the Commissioner of Police which would disclose legal advice concerning the powers of a member of the police force to establish a BTS, and that this advice would disclose either official encouragement at a senior level of the misuse of the power to establish a BTS, or that senior police officers should have known that the BTS was not lawfully established, and had acted recklessly or carelessly. This submission was put to counter an anticipated submission from counsel for the DPP that if the BTS was unlawfully established, the court should not exclude the evidence in question, because the police officers concerned had acted in good faith.

Evidence

Evidence Before The Court

The BTS was lawfully established.The discretion to exclude evidence It follows that there was no occasion for the Judge to exercise the discretion to exclude evidence tendered by the prosecution on the basis that the evidence was obtained by unlawful means. The Judge said that even if the BTS was unlawfully established, he would not have exercised his discretion to exclude the evidence obtained as a result of the searches. He said that at most there might be “some technical impropriety” involved. I do not regard the issue as being as simple as that. If the BTS was unlawfully established, it follows that a power conferred for a narrow purpose has been deliberately used for a wider purpose. If the BTS was unlawful, the power to conduct alcotests has been used for another end, namely to detect stolen vehicles and stolen property and other offences. This is not a minor matter. On this hypothesis the BTS has been set up for an impermissible purpose. The “Operation Order” discloses that that purpose has the approval of the relevant Field Commander (an Inspector), and the relevant Base Commander (a Superintendent). The improper purpose has been approved at a senior level. On the other hand, there was no evidence before the Judge to suggest that any of those concerned were aware of the fact that their proposed use of the BTS was unlawful. A finding of intentional or reckless misconduct cannot be made on the evidence. Counsel for the appellant in the District Court did not apply to cross-examine Senior Sergeant Mather, or the Superintendent or Inspector involved. Moreover, the proper interpretation of s 47DA(1) is not simple. One could not be too critical of a senior police officer or legal adviser who shared what would be my error, on this hypothesis, as to the proper interpretation of s 47DA. But to be weighed against these points is the fact that it is reasonable to infer, from the terms of the “Operation Order”, that there is a view among senior officers of the police force that the procedure followed in the instant case is permissible. There is no hint in the “Operation Order” that it is an unusual or exceptional undertaking. It is also important to bear in mind, and to weigh up, that important common law rights have been interfered with, if the BTS was established unlawfully. The District Court Judge did not adequately consider the exercise of the discretion identified in Bunning v Cross (1978) 141 CLR 54, on the hypothesis that the BTS was established unlawfully. It is necessary for this Court to consider the matter afresh. To my mind, the matter is fairly finely balanced. But on balance I would reach the same conclusion as the District Court Judge reached. I am influenced by the fact that the proper construction of s 47DA raises difficult issues, and by the fact that there is no evidence of conscious wrongdoing or of recklessness. Accordingly, if I am wrong in my approach to the meaning of s 47DA(1), I would nevertheless conclude that the Judge was right not to exclude the evidence obtained as a result of the searches.Application for an order for the production of further documents

Decision

Reasons for decision

PERRY J (dissent)
That in turn led to a complaint by the Prosecutor that counsel had inappropriately introduced to the jury the issue of the penalty facing the appellant were he to be convicted. My impression is that too much was made of this at trial, and again on appeal. The Judge’s direction to the jury might have been a little too blunt. But I am unable to agree that this direction would have caused the jury to put to one side, as a possible explanation, the explanation offered by the appellant for his possession of the cannabis. The Judge had reminded the jury of that explanation in a fashion that did not imply that they were to discard any aspect of it. The Judge’s direction could have been more carefully expressed, but I consider it would have been understood by the jury as meaning nothing more than that they were not to take into account the possibility that a verdict of guilty might result in the appellant being imprisoned.Conclusion For those reasons I would dismiss the appeal. In my opinion, this appeal should be dismissed. I agree with the reasons given by the Chief Justice. LANDER J:I agree for the reasons given by the Chief Justice that this appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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