R v M, I

Case [2018] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v M, I & ORS

[2018] SASC 24

Reasons for Rulings of The Honourable Justice Lovell

6 March 2018

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - OFFENCES - GENERALLY

The accused are serving police officers charged with a number of counts of Abuse of Public Office. South Australian Police and the Independent Commissioner Against Corruption conducted a joint investigation. Evidence was obtained by use of a covert operation authorised under the Criminal Investigation (Covert Operations) Act 2009 (SA).

Whether the joint investigation complied with sections 23, 24 and 34 of the Independent Commissioner Against Corruption Act 2009 (SA) - meaning of expression from "time to time" considered - whether the covert operations were approved and therefore authorised in accordance with s 4 of the CICO Act - whether authorisation was invalid - whether s 55 of the CICO Act applied - whether investigation breached the Local Police Policy - whether the evidence obtained from the covert operations should be excluded in the exercise of the court’s discretion - factors taken into account when exercising the discretion considered.

Held, dismissing the application:

The approvals authorising the covert operations were invalid. Although the discretion to exclude the evidence was enlivened, in all of the circumstances the application to exclude the evidence should be dismissed.

Criminal Investigation (Covert Operations) Act 2009 (SA) s 3, s 4, s 5; Independent Commissioner Against Corruption Act 2012 (SA) s 23, s 24, s 34; Summary Offences Act 1953 (SA) s 75, referred to.
Police v Dunstall (2015) 256 CLR 403; R v Lobban (2000) 77 SASR 24, applied.
Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; R v Swaffield (1998) 192 CLR 159; French v Scarman (1979) 20 SASR 333; R v Rockford (2015) 122 SASR 391, discussed.

R v M, I & ORS
[2018] SASC 24

Criminal: Application

LOVELL J.

Overview

  1. X1 is a police officer and was a member of the Sturt Operation Mantle team (the Mantle team). The Mantle team was comprised of police officers whose main task was to investigate drug crimes in the Sturt area. A common task was for the team, or several members of the team, to attend alleged drug crime scenes. On two occasions, 2 January 2014 at Glenelg South and 18 February 2014 at Aberfoyle Park, X1, as part of her duties, attended drug crime scenes and witnessed other Mantle team officers mis-handling crime scene exhibits. Further she alleged she had overheard comments that suggested items were being mis‑handled and/or stolen. X1 reported her observations to a superior officer who contacted the Anti-Corruption Branch (ACB) of the South Australian Police Department. The information was also passed on to the office of the Independent Commissioner Against Corruption (ICAC). ICAC and the ACB…

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Details
AGLC
R v M, I [2018] SASC 24
Case
[2018] SASC 24
Decision Date

CaseChat Overview and Summary

The case of R v M, I involved an investigation into the conduct of police officers, specifically those in the Sturt Mantle team, who were suspected of engaging in dishonest activities. The accused sought various declarations and orders related to the legality and admissibility of evidence obtained during the investigation conducted by the Anti-Corruption Branch (ACB) and the Independent Commissioner Against Corruption (ICAC). The central issues before the court were the admissibility of evidence obtained during covert operations and the validity of approvals granted for these operations under the Criminal Investigation (Covert Operations) Act (CICO Act) and the Independent Commissioner Against Corruption Act (ICAC Act).

The court had to determine whether the investigation and the evidence obtained were lawful, particularly in light of the accused's arguments that the investigation was unlawful or that the evidence was improperly obtained. This involved examining the process by which approvals were obtained for covert operations and integrity tests, and whether these processes complied with the relevant legislation. The court also had to assess whether the evidence obtained was unfairly prejudicial or should be excluded on other grounds.

The court found that while there were some errors and inconsistencies in the investigation, these did not render the overall process unlawful. The lead investigator, Dalton, was deemed to be an honest and reliable witness, and the approvals for the covert operations and integrity tests were found to be valid. The court held that the evidence obtained, although not perfect, was admissible and should not be excluded. The reasoning emphasised the importance of operational decisions made in the context of covert investigations and the discretion afforded to investigators in such sensitive matters. The court concluded that the accused's arguments regarding the unlawfulness of the investigation and the invalidity of evidence were not substantiated, and thus, the evidence remained admissible.

The final orders confirmed the admissibility of the evidence obtained during the investigation and dismissed the accused's claims regarding the unlawfulness of the investigation and the invalidity of the approvals. The court’s decision underscored the importance of balancing the need for effective law enforcement with the protection of individual rights and legal procedures.

Orders

Orders of the court

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Background

Background to the litigation

In general terms, all accused sought:1.A declaration that the investigation conducted by the ACB after 31 August 2014 was unlawful.2.In the alternative to 1, a declaration that the joint investigation of ICAC and the ACB for the purposes of s 34 of the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act) was, from 4 February 2014, unlawful.3.A declaration that the Approvals for a covert operation (and any extensions) and a Targeted Integrity Test(s) made pursuant to s 4 of the CICO Act were invalid or alternatively unlawful.4.That as a consequence of the declarations all the evidence obtained from the Targeted Integrity Test(s) and any subsequent evidence be excluded.Background X1 provided information about two separate crime scenes that she attended.Glenelg South X1 attended the crime scene with IM and MR along with Senior Constable S (S), Senior Constable W (W) and Senior Constable G (G). The information provided by X1 in relation to the Glenelg South residence was as follows:1.The premises were set up similar to that of an Albanian syndicate grow house.2.While assisting in the dismantling process, X1 heard from another room words to the effect of “that would look good in the office”. X1 looked into the room and saw IM and S. S was disconnecting the cords to a television.3.X1 heard MR say “that’s a decent fan, better get that out before Crime Scene gets here”. X1 later saw the fan outside. S carried a bag of mulch/fertiliser from the premises. This bag and the television, disconnected by S, were seen by X1 in the police vehicle.4.The owner of the premises, believed to be an ex-solicitor, arrived and observed the items in the police vehicle. After the owner’s arrival MR returned the pedestal fan to the premises.5.W later said to X1, referring to the attendance at Glenelg South, “normally it’s only a pair of secateurs”.6.On 14 January 2014 X1 said that whilst she was in the middle room at office of the Mantle team, the television started to “blink”. S said, “Gee, we could really do with an Albanian drug action about now”.7.The fan was not taken from the premises. X1, the next day, saw that the television had been entered into the Police Property Management System (PPMS).Aberfoyle Park X1 attended the crime scene with BR, MR, G and W. The house had clearly been used for the growing of a cannabis crop. Whilst the grow house was being dismantled, W asked for something to break down a carbon filter. He said, “Has anyone got anything to break this down?” and then, “Oh nah, that’s alright, I actually need a carbon filter.” The carbon filter was placed in the Mantle trailer. Later, investigations conducted by the ACB produced CCTV footage showing W unloading a carbon filter from the Mantle trailer at 1.49 pm after the Mantle officers returned from Aberfoyle Park. Property seized from Aberfoyle Park was booked in by BR to the Sturt PPMS but the carbon filter was not booked in. This became relevant to a crime scene that W had attended months earlier. On 22 July 2013, Sturt Mantle officers including W had attended premises at 68 Albert Street, Goodwood and a carbon filter seized and entered on the Sturt PPMS system. It was said to have been delivered to the Ottoway police compound. The carbon filter was never received at Ottoway.

Evidence

Evidence Before The Court

Items seized but not booked into the PPMS included perfume, a multi-tool, two sets of wire snips and two bottles of Johnnie Walker Red Label whisky.Evidence on the Rule 49 Application On the application the prosecution called four witnesses: Dalton, Inspector Dinning (Dinning), Baulderstone and Mr Grant Moyle (Moyle) who at the relevant time was the Director of Operations of ICAC. Before turning to deal with the submissions, I will make brief remarks about the witnesses who gave evidence. Dalton was the lead investigator for the ACB and had the day to day running of the matter. Dalton was the officer who prepared the approvals for the covert operation and the Targeted Integrity Tests as well as doing a large proportion of the investigative work in the matter. Dalton was an impressive witness. I found her to be an honest, credible and reliable witness. Whilst her investigation was not free of errors, as one would expect in an investigation of this nature, Dalton was always quick to acknowledge her errors. I accept her evidence. Dinning was an honest, reliable witness and I accept her evidence. Moyle was an honest and reliable witness and I generally accept his evidence. His recollection as to the constitution of the Mantle team during the time of the investigation was incorrect but he was not invited to refresh his memory from various contemporaneous documents before he gave that evidence. The evidence establishes that he was kept informed of the change in the team and for the reasons that follow he jointly authorised the approvals for the covert operations and kept the Commissioner informed of the progress of the matter at all times. Baulderstone’s evidence was strongly criticised by counsel but I found her to be generally an honest and reliable witness. There was much criticism of her approach to who she suspected on reasonable grounds to be part of the “culture of dishonesty” within the Mantle team. For the reasons that follow I consider her approach, apart from her suspicion in relation to KF and JC, to have been correct. Much of the criticism then is unwarranted. On occasions there were inconsistencies in her evidence which cause me to have some doubt about her reliability. I refer particularly to the question of whether Moyle jointly authorised the Approvals as required by the Local Policy. Documents from ICAC’s possession were unfortunately produced very late on the voir dire and after Baulderstone had completed her evidence. Baulderstone appeared to be under the misapprehension that she had, in breach of the Local Police Policy, not had Moyle authorise the Approvals. This was an incorrect assumption as I discuss later in these reasons. Her evidence on the point was confusing and finally she was unable to give any reasonable explanation for her failure to get Moyle to jointly authorise the Approvals. Her confusion is explained by the fact that Moyle did, in fact, jointly authorise the Approvals. Baulderstone was also criticised for her decision to proceed with the Tests despite the change in membership of the Mantle team over time. Further she was criticised for not rearranging the Tests to exclude certain members. I discuss those matters later in these reasons. In my view much of the criticism was unwarranted. Baulderstone along with the other investigators had a number of operational decisions to make. They decided to not do anything that would create any suspicion that a covert operation was underway. It was decided to allow matters within the Mantle team to continue “normally”. While I accept that other pathways may have been taken, and I take that into account when considering the exercise of the discretions, in the overall context of this case these were operational decisions which were not unreasonable.

Decision

Reasons for decision

LOVELL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

At 2.05 pm on 18 February 2014, after the Sturt Mantle team officers returned from Aberfoyle Park, W sent an email to Senior Constable T advising that he had “just come back from leave and had attended down in the wash bay/holding area for hydro items and had located the carbon filter without a property label attached”. The carbon filter mentioned by W was that seized from Aberfoyle Park but not booked in.History of applications and approvals to conduct a covert operation The information supplied by X1, supported by further enquiries, formed the basis for an application to conduct a covert investigation of the Sturt Mantle team. Detective Brevet Sergeant Dalton (Dalton), the lead investigator at the ACB, compiled the application; it was dated 14 April 2014. On the same date Dalton compiled an application for the approval of a Targeted Integrity Test; the application stated that such a test was warranted and recommended. Section 4 of the CICO Act governed the approval process for a covert operation. An application for the approval of a covert operation had to be made to a “senior police officer”. “Senior police officer” is defined in s 4 as a police officer of or above the rank of Superintendent. At the time, the head of the ACB was Superintendent Baulderstone (Baulderstone). The Approval documents compiled by Dalton were sent to Baulderstone for her to consider whether to approve the covert operation and the Targeted Integrity Test. On 24 April 2014, acting pursuant to s 4 of the CICO Act, Baulderstone approved the application to conduct an undercover operation. On the same date, acting under the Anti-Corruption Branch Integrity Test Policy (the Local Policy), Baulderstone approved the proposed integrity test. On 17 June 2014 Dalton submitted an application to “renew” a covert investigation and on 19 June 2014 Baulderstone approved an “extension” to an undercover operation. On 8 September 2014 Dalton submitted a further application to “renew” the covert operation and on 12 September 2014 Baulderstone approved the “extension” of the undercover operation. On 23 September 2014, Dalton submitted an application for a covert investigation. This was approved, by Baulderstone, on 30 September 2014. On 9 October 2014, Dalton made an addendum application for a covert investigation which was approved by Baulderstone on 9 October 2014. During the course of these reasons, and for reasons of convenience, I discuss the Applications and Approvals in general terms. I have not overlooked the fact that JC was not a member of the Mantle team at the time of the first Approval. All Applications and Approvals were generally based on the same information with minor changes relating to the change in membership of the Mantle team. JC is an example of such a change. I have not overlooked the “adding” of Dalton’s name to the authorised participants list in the September Approval.The Targeted Integrity Tests The first Targeted Integrity Test was conducted at Mitchell Park on 15 September 2014. A house had been rented and set up to resemble a grow house. Items consistent with those used in a grow house had been placed in the house by ACB officers. These items had been marked so that they could be identified later. Dalton made an anonymous call to Crime Stoppers and officers BR, MR and KF attended the premises. These three officers seized property from the premises and some of the items were later booked into the PPMS. Other items seized were not booked in and these are generally the subject of the charges. Not booked in were a Bosch cordless screwdriver set, an Arrow staple gun and staples, gaffer tape, an AEG cordless drill set, a Stanley spanner set, crescent clamps, a Leatherman tool, an Ozito cordless drill set, an Eclipse wrench, and two Uniden radios.