R v Kola No. Sccrm-01-341

[2001] SASC 448

R  v  KOLA
[2001] SASC 448

Court of Criminal Appeal: Nyland, Martin and Besanko JJ
Application re Question of Law (ex tempore)

1. MARTIN J: The applicant seeks an order pursuant to s 350(2) of the Criminal Law Consolidation Act 1935 (“the CLCA”) directing a judge of the District Court to reserve a question of law for consideration and determination by the Full Court.

2. The applicant is charged with possessing cannabis for sale.  He first appeared in the District Court in December 2000.  The trial was due to commence on 22 May 2001.  On that day the applicant was arraigned and pleaded not guilty.  Objection was taken to the admissibility of evidence that police found the cannabis in question in the applicant’s vehicle.  A voir dire hearing concerning the admissibility of that evidence was conducted on 22 and 23 May 2001.  On 23 May 2001 counsel for the applicant asked the trial judge to disqualify himself.  The judge declined and granted leave to appeal against his decision.  The appeal was heard by the Full Court in June and July 2001.  On 6 August 2001 the Full Court dismissed the appeal and an associated application for judicial review.

3. The voir dire hearing resumed before the trial judge on 5 December 2001. His Honour declined to exclude the evidence. On 5 December 2001 the applicant asked the trial judge to reserve a question of law for consideration and determination by the Full Court pursuant to s 350(1) of the CLCA. The trial judge declined the application. The applicant now seeks an order directing the trial judge to reserve questions for determination by the Full Court.

4. The relevant facts can be stated briefly.  On 25 August 2000 police set up a random breath testing station on Salisbury Highway at Dry Creek.  The applicant was driving his car and was pulled over at the breath testing station.  When a police officer spoke to the applicant he noticed a very strong smell of cannabis coming from within the vehicle.  Another officer could also smell the cannabis.  The trial judge found that the officers suspected on reasonable grounds that a substance which would afford evidence of an offence against the Controlled Substances Act 1984 was in the applicant’s vehicle. On that basis his Honour concluded that the officers were empowered by s 52(9) of the Controlled Substances Act to detain and search the vehicle.

5. A suitcase in the rear of the vehicle contained six shopping bags of cannabis.  A tapestry bag leaning against the front seat on the passenger’s side of the car also contained six shopping bags of cannabis.  The total weight of cannabis was approximately 5 kilograms.  The applicant was taken to the Elizabeth Police Station and placed in an interview room.  After a drug warrant was obtained authorising the investigating officer to enter the applicant’s home, a search of those premises was conducted in the presence of the applicant.  In various rooms of the house police found remnants of cannabis and various materials commonly used in the cultivation of cannabis.

6. The applicant sought to exclude the evidence concerning the cannabis in his vehicle on the basis that the search was unlawful.  It was argued that the setting up of a random breath testing station for purposes other than testing drivers for the presence of alcohol in their blood was unlawful and required the exclusion of the evidence on the grounds of public policy identified in Bunning v Cross (1978) 141 CLR 54. Alternatively, the applicant contended that the evidence should be excluded in the exercise of the trial judge’s discretion.

7. On 5 December 2001 the trial judge ruled against the application.  In written reasons delivered 7 December 2001 the trial judge rejected the proposition that the police acted unlawfully in setting up the random breath testing station and in subsequently stopping the applicant and searching his vehicle.  In addition, his Honour indicated that even if there was some technical impropriety on the part of those who arranged the random breath test activity, or those who carried it out, any illegality did not effect the cogency of the evidence found in the applicant’s car and, taking into account the seriousness of the offence, he would exercise his discretion in favour of admitting the evidence.

8. It is against that background that the questions the applicant seeks to put before the Full Court are to be considered.  Those questions are as follows:

   (a)Is it unlawful or improper for the South Australian Police to set up and manage a random breath testing station established pursuant to s 47DA of the Road Traffic Act for the purpose as well as other purposes not related to Part 3 Division 5 Road Traffic Act - Driving Under the Influence of Liquor or Drugs?

   (b)If yes to question (a) would it be deliberate or reckless disregard of the law, within the context of Bunning v Cross (1978) 141 CLR 54 at 77-80, Ridgeway v The Queen (1995) 184 CLR 19 at 32, 35, 77 and R v Lobban (2000) 77 SASR 24 at 30-35, 51 for a superintendent, inspector and senior sergeant of police to set up and manage a random breath testing station for that purpose as well as other purposes not related to the detection of offences under Part 3 Division 5 of the Road Traffic Act?

   (c)If yes to question (a) should the public policy discretion enunciated in Bunning v Cross, supra, Ridgeway v The Queen, supra and R v Lobban, supra be exercised to exclude evidence of a search conducted at a random breath test station leading to the driver of the motor vehicle being reported or charged with an offence other than an offence under Part 3 Division 5 of the Road Traffic Act?

   (d)If yes to question (b) should the public policy discretion enunciated in Bunning v Cross, supra, Ridgeway v The Queen supra, R v Lobban, supra, be exercised to exclude evidence of a search conducted at a random breath test station leading to the driver of the motor vehicle being reported or charged with an offence other than an offence under Part 3 Division 5 of the Road Traffic Act?

9. The proposed questions seek advisory opinions disengaged from the facts before the trial judge. If the Full Court directed the trial judge to reserve the proposed questions, pursuant to s 351(1) CLCA it would be the duty of the trial judge to set out for the Full Court any findings of fact necessary for the proper determination of the questions reserved; The Queen v Thaller & Gee (Question of Law Reserved) (2001) 79 SASR 295. On the assumption that the facts identified by the trial judge in his reasons would be the facts put forward in the reference, this Court could answer question (a). That question raises a point of law capable of being answered in the context of the facts found by the trial judge.

10. Questions (b), (c) and (d) seek advisory opinions disengaged from the facts before the trial judge.  They seek answers concerning the states of mind of police officers and questions of discretion, but disengaged from the facts.  If, as a matter of law, it is unlawful for a random breath testing station to be set up for multiple purposes, whether it would be a “deliberate or reckless disregard of the law” for police officers to set up and manage a random breath testing for multiple purposes would depend upon the state of mind and the knowledge of the officers concerned.  Question (b) is not directed to a specific finding of the trial judge, but seeks an advisory opinion which it is impossible to give in the absence of specific findings of fact as to the states of mind and knowledge of the officers concerned.  Similarly, question (c) and (d) are not directed to the specific exercise of the discretion by the trial judge in the context of facts found by the trial judge.  They seek advisory opinions in a vacuum.  Questions relating to discretionary exclusion of evidence can only be answered by reference to factual findings relevant to the exercise of the discretion.  In my opinion, even if other factors required a reference to the Full Court, it would be inappropriate for the Full Court to entertain questions (b), (c) and (d).

11. The jury was empanelled yesterday and the trial proceeded with the calling of Crown evidence.  The trial is expected to occupy a further four to five days.  The trial judge, correctly in my view, declined to delay the trial until the application to this Court had been heard and determined.

12. For good reasons, appellate courts are reluctant to interfere with the progress of a criminal trial or to fragment it: R v Elliott (1996) 185 CLR 250; R v Liddy [2001] SASC 116. The power of this Court to require that a question be reserved is not intended to be a general right of appeal. If the applicant is convicted, he will have the opportunity of arguing on appeal that the evidence was wrongly admitted. This Court will only exercise the power to direct a judge to reserve a question of law arising in the course of a criminal trial if the circumstances “clearly require” that such an order be made: R v Liddy.  It has also been said that the Court will only exercise the power in unusual and exceptional circumstances.

13. In my view, even if it was appropriate for this Court to answer the proposed questions, the issues are not of such importance that this Court should interrupt the course of the trial in order to consider and determine those questions.  In my opinion the application should be refused.

14. NYLAND J:           I agree with the reasons expressed by Martin J.  I also refuse the application.

15. BESANKO J:         I agree that this application should be refused for the reasons given by Martin J.

16. NYLAND J:           The order of the Court therefore is that the application be refused.