R v McKelliff

R v McKELLIFF
[2004] SASC 63
Court of Criminal Appeal: Doyle CJ, Perry and Gray JJ

DOYLE CJ. I would dismiss the appeal against conviction. I agree with the reasons given by Perry J. There is nothing that I wish to add to those reasons.
PERRY J. The appellant appeals to this Court by leave against his conviction in the District Court on charges of possessing methylamphetamine for sale, and possessing lysergide (known as LSD) for sale.
A quantity of each of those drugs was found in a suburban house said to be occupied by the appellant, following a police search of the premises on 19 June 2002.
Before the commencement of the trial, the trial judge conducted a voir dire hearing in order to deal with an application by the appellant for an order that certain items of evidence which the prosecution proposed to lead at the trial “be excluded from the evidence at the trial”. The basis upon which the exclusion of the evidence was sought was that the applicant contended that the search was illegal, in that the police officers who conducted the search did not possess a valid warrant.
Before the voir dire hearing got under way, the applicant sought the production by the Commissioner of Police pursuant to a subpoena served on the Commissioner, of a number of documents relating to the circumstances in which a general search warrant had been issued by the Commissioner, being a warrant held by one of the police officers involved in the search of the applicant’s house.
A objection was taken to the production of documents listed in the subpoena on the grounds of relevance, and on the basis of public interest immunity.
The claim for public interest immunity was based upon the fact that the documents contained information which would or might tend to identify an informant who had given information to the police as a result of which the decision was made to search the appellant’s premises.
After hearing argument, the trial judge upheld the Commissioner’s objection to the subpoena, holding that some of the documents were irrelevant and that, in any event, as to all of the documents, the claim for public interest immunity should be upheld.
In his notice of appeal, the appellant advances five grounds of appeal which may be summarised as follows.
That the trial judge erred in:
1.Upholding the claim of public interest immunity.
2.Ruling against an application by the appellant to allow the appellant to cross-examine Detective Robinson, who had sworn an affidavit in support of the claim for public interest immunity, on his affidavit.
3.Holding that the general search warrant was valid.
4.Holding that the search of the appellant’s house property was lawful.
5.Failing to exclude from the evidence the drugs and other items seized in the house.
Background
The following statement of the immediate circumstances of the search of the appellant’s house is extracted from the reasons published by the trial judge in support of his rulings.[1]
[1] Judgment [2003] SADC 145, 24 September 2003.
“12On 19 June 2002, Detective Andrew was the team leader of an operation known as Operation Chief. Particular targets had been identified for an early morning raid. There was a briefing of the officers involved. One assignment involved premises at 18 Pelsart Avenue, Fairview Park, which are owned by the accused. Detective Andrew believed that the accused lived at those premises.
13Detective Andrew assembled the team and travelled to the premises. As he travelled to the premises his intention was to search them. He was in possession of the general search warrant to which I have referred. His reason for searching the premises was based on information which he had received. He had been informed by Senior Constable Robinson, the Intelligence Officer to Avatar, that the accused was dealing in amphetamine drugs from the premises he worked at in Rundle Street and also may have a cannabis crop at the premises at Pelsart Avenue. He was also told that an AGL check had revealed that the electrical reading at the Pelsart Avenue premises was elevated. Because of those things combined he believed there was a possibility of drugs at the premises at Pelsart Avenue.
14As he travelled to the premises, he proposed to use the authority of his general search warrant to conduct the search with help from the team which had been assigned to him on that day.
15The team arrived at the premises and attempted to raise the occupants on an intercom. Detective Andrew made several phone calls to his base command and made a phone call to the club rooms of the Hell’s Angels Motorcycle Club at Clarence Gardens. He did that because he believed that the accused was a member of the club. Detective Andrew was unsuccessful in contacting the accused, although he did speak with a person at the club rooms who said he would make enquiries and try and contact the accused to have him either attend at the premises or telephone.
16After making the phone calls, Detective Andrew directed Senior Constable Robinson to jump over a side fence near the front of the house. Senior Constable Robinson did that and then opened a roller door at the garage at the side of the house. The other officers entered via the roller door into the driveway area. They made observations in the backyard. Further telephone calls were made to the base command and to the club rooms. It was still Detective Andrew’s intention to search the house.
17Senior Constable Robinson told Detective Andrew of an observation he had made with respect to the shed. Detective Andrew inspected the shed himself and noticed there was cannabis and material associated with growing cannabis hydroponically.
18Detective Andrew gave evidence that having located the cannabis, it was obvious to him that the information he had been supplied with by Senior Constable Robinson was partly correct. It reinforced his suspicions that there may be other drugs in the house at that time.
19At 1.30 pm Senior Constable Robinson went on to the roof of the house, gained entry into the house via the ceiling and opened the house to provide access for the other officers. Senior Constable Robinson had gone on to the roof at the direction of Detective Andrew. Prior to giving that direction, Detective Andrew made a further phone call to a person whom he knew to be a member of the Hell’s Angels, but could not get through.
20The house had three bedrooms. Only one appeared to be occupied. Certain drugs and other material, said to be associated with drugs, were found in the occupied bedroom. They were LSD, amphetamine, money bags, silver bullion, some cash and some scales. ..........
21While the police officers were at the house, the telephone rang. The caller was the accused who said he was not coming home but that Detective Andrew should contact his solicitor.”
Grounds 1 and 2: the challenge to the rulings upholding the claim for public interest immunity and rejecting the request to cross-examine Detective Robinson.
It is convenient to deal with these two grounds together.
A copy of the subpoena seeking production by the Commissioner of the documents with respect to which the claim for public interest immunity was taken, does not appear in the appeal papers . However, the documents are described in the affidavit of Detective Jeffries who swore an affidavit on behalf of the Commissioner of Police in support of the claim.
In the affidavit he describes the documents as follows:
“... all police records and other material in the possession or control of Police relating to:-
1.1The unregistered Informant (Informant) referred to in the declaration of J.G. Andrew dated 13 November 2002 filed herein, including but not limited to:-
1.2All or any information provided directly or indirectly by the said Informant to Senior Constable Andrew Robinson or any other Police Officer concerning the Accused;
1.3Criminal record, if any, of the Informant; and
1.4All or any material suggesting in any way that the Informant has at any time been involved in any criminal activities.”
Detective Jeffries deposed in the affidavit to the fact that he had caused a search to be made of various records maintained by the Commissioner of Police and had identified a number of documents relating in one way or another to the informant, such as, for example, a record of his prior criminal history, a police apprehension report relating to an offence which the informant had committed in 1998, a number of expiration notices issued to the informant for various traffic offences, firearms records and other documents.
As to many of the documents, Sergeant Jeffries claimed that they were irrelevant, and for that reason not liable to be produced under the subpoena.
As to all of the documents, he objected to production on the ground of public interest immunity, save for parts of some of the documents which he disclosed after masking out some parts which would have revealed the identity of the informant.
Detective Jeffries identified the basis of the claim for public interest immunity in the following paragraphs of his affidavit:
“12.The claim for public interest immunity in relation to the documents referred to above is based upon the reason that the documents contain information that will or may tend to identify a police informant.
13.I believe that the life of the informant is placed at serious risk if these documents are provided. I shall refer to the factual basis for this fear both in this affidavit and in my sealed affidavit.[2]
14.Further the promise of confidentiality underpins police-informant relationship. Informants supplying information regarding the activities of persons associated or involved with organised motor cycle gangs and other criminality are rare and highly valued. These persons generally assist police with full knowledge that they face a genuine risk of persecution, harassment, personal injury or death if their activities become known.
15.It is my belief that it is the promise of confidentiality to informants which allays the fear of criminal retaliation and in turn provides law enforcement with information it might never otherwise obtain.
16.When information is provided to SAPOL and it is considered by the officer receiving the information that it is necessary that the identity of the informant and the information be kept confidential, it is the practice of SAPOL officers to give an assurance of confidentiality.
17.In this matter the informant is from what is referred to in police intelligence terms as a community source or public spirited citizen who often (and in this case) did not seek monetary reward for the information provided. The police Informant Management Policy with respect to such informants is that there is no need to register such individuals.
18.The fears for the life of this individual are genuine. The applicant, according to police intelligence, is the Sergeant in Arms of the Hells Angels Outlaw Motor Cycle Club, was made a full member in 2001 and has been involved in the Hells Angels since about 1997.
19.Further annexed hereto and marked GDJ 9 is a copy of a SAPOL printout of the applicant’s prior criminal history. This printout is a historical record of all charges laid against the applicant but does not include pending charges. The applicant has been charged in the past with 13 counts of either assault occasioning actual bodily harm or common assault over a period from 1994 to 2001. On all but one occasion the charges against the applicant have been withdrawn by SAPOL. I have not caused a search to be made of the SAPOL prosecution records for each of these reports however I am informed and verily believe, that at least with respect to some of these offences, the persons who were the alleged victim of the offences declined to give evidence or assist police. It is my belief that the reluctance of at least some of the victims has been due primarily to the fact that the applicant is a member of the Hells Angels. On the one occasion that a witness gave evidence against the applicant, the alleged victim was from Canada, had returned to Canada and gave evidence via electronic means from Canada. The applicant was ultimately acquitted of this charge.”
[2] Two confidential affidavits were put before the trial juge, the contents of which were not released to the appellant or his counsel. The members of this Court have not read them.
The rule against the disclosure of the identity of police informers was discussed recently at length in the decision of the Court of Criminal Appeal in R v Mason[3] and in the decision of the Full Court in Haydon v Magistrates Court of SA and Rofe.[4]
[3] (2000) 77 SASR 105, Doyle CJ, Mullighan and Bleby JJ.
[4] (Unreported) 21 March 2001, judgment No [2001] SASC 65, Doyle CJ, Olsson and Perry JJ.
As was pointed out by Doyle CJ in Haydon,[5] there are two lines of authority as to the way in which the test for public interest immunity should be formulated in the case of police informers.
[5] Ibid par 13-18 inclusive.
One line of authority is exemplified by Smith[6] and Cane and Ors v Glass and Ors (No 2)[7] where it was said that in dealing with a claim for public interest immunity in its application to police informers, the court does not weigh the competing public interest in adducing all relevant evidence and the public interest in the effective investigation of crimes, as the balance has already been struck in favour of non-disclosure, except where disclosure would help to show that the defendant was innocent.
[6] (1996) 86 A Crim R 308 at 311-312.
[7] (1985) 3 NSWLR 230 per McHugh JA at 246-247.
In the other line of authority, of which Alister v The Queen[8] and the judgment of Priestley JA in Cain[9] are examples, the view has been expressed that it is for the court to weigh “against each other the public interest in avoiding damage from the production of the documents in question, and the public interest in facilitating a just result in a litigation”.[10]
[8] (1984) 154 CLR 404.
[9] (Supra) at 242.
[10] Haydon (supra) per Doyle CJ at par 15.
In Haydon, the court came down in favour of the view that the correct approach was for the court to undertake a balancing exercise, “weighing on the one hand the asserted public interest against disclosure against the public interest in ensuring that the court has access to all relevant evidence”.[11]
[11] Ibid per Perry J at par 66.
However the test is formulated, the weight of authority is in favour of the view that the claim for immunity in its application to material identifying police informers will weigh heavily in the balancing exercise, and ordinarily will only be displaced where disclosure is likely to assist the defendant in proving his or her innocence.
In that respect, as was pointed out by Doyle CJ in Haydon, it will not be sufficient if all that can be shown is that disclosure “might be of some assistance”. As he said in that case:
“To require disclosure on this basis would be to undervalue the importance of the public interest in non-disclosure.”[12]
[12] Haydon at par 30.
In Haydon, both Doyle CJ and I adopted with approval comments by Brooking J in Jarvie v Magistrates Court of Victoria.[13] In Haydon, I observed, with reference to Brooking J’s judgment in that case:
“118I accept, as Brooking J points out, that disclosure will not necessarily be limited to cases ‘where it is shown that disclosure will enable the innocence of the accused to be demonstrated’.[14] I agree that the disclosure may be justified ‘... if there is good reason to think that the disclosure may be of substantial assistance to the defendant in combating the case for the prosecution’,[15] and that this could extend to disclosure of material ‘bearing on the credibility of a witness for the prosecution ... where the credibility of that witness was really in question’,[16] although I add that neither of those considerations, if shown to exist, will be conclusive. The balancing exercise must still be performed.”
[13] [1955] 1 VR 84.
[14] [1995] 1 VR at 89.
[15] Ibid at 90.
[16] Ibid at 91.
The balance is unlikely to be struck in favour of the defendant unless there is “some concrete ground for belief which takes the case beyond a mere ‘fishing’ expedition”.[17]
[17] Air Canada v Secretary of State for Trade (1983) 2 AC 394 per Lord Wilberforce at 439, cited with approval by Gibbs CJ in Alister v The Queen (1983-1984) 154 CLR 404 at 414.
In this case, the appellant contended that the balance should be struck in his favour, and disclosure of the information should be ordered for three reasons:
(1)“... the information may assist in establishing that Senior Constable Robinson had invented the information or that he had concocted the incident, or that it had come from another source”.[18]
(2)The information might prove or tend to prove that the informant had been involved in criminal or organised criminal activity to do with drugs.[19]
(3)The informant may be shown to be a person with a grudge against the appellant, and the informer might have planted the drugs on the premises.
[18] Reasons for ruling of the trial judge, par 34.
[19] Reasons for ruling of the trial judge, par 44.
I agree with the view of the trial judge that insofar as the application was based upon the three contentions to which I have referred, it was plainly nothing more than a “fishing exercise”.
The suggestions were purely hypothetical. As the trial judge pointed out, no positive basis was put forward to challenge the credibility of Senior Constable Robinson, or to support any of the suppositions.
There was no evidence, either from the appellant or from any other source, to suggest that the appellant had been “set up” by the informant, or by anyone else, for that matter. There was no evidence to suggest, for example, that the appellant’s house had been broken into at any time by somebody who might have planted the drugs, or that persons who might have been responsible for doing so otherwise had access to the premises. Although the appellant challenged the prosecution case that he was living at the premises, no evidence was offered that anyone else had lived in the premises. No persons were named as bearing the accused a grudge. No reason was offered in the evidence why anyone might bear the appellant a grudge.
The foundation for the appellant’s application never rose above the level of mere conjecture. The application was rightly rejected.
Before leaving this aspect of the matter, I should deal with the appellant’s argument that there were significant factual inconsistencies between Detective Robinson and Detective Andrew concerning the information which had allegedly been provided by the informant, and that this added weight to the appellant’s argument that he was entitled to information which might identify the informant.
In support of this argument, the appellant drew attention to a statement of Detective Andrew made on 13 November 2002 in which he said, inter alia:
“In the first week of June 2002, I was informed by Senior Constable Andrew ROBINSON a Field Intelligence Officer attached to Operation Avatar 2 via an unregistered informant to him: that the accused was alleged to have been dealing drugs (specifically amphetamine). This was alleged to have been occurring from the ‘Q’ Club, Rundle Street, Adelaide, in which he is employed as a crowd controller. Senior Constable Robinson also informed me that the accused might be growing cannabis by hydroponic methods from his home address.”
After the raid on the appellant’s premises had been completed, Detective Andrew made out a document headed “Statistical Return on Use of the General Search Warrant” in which appears the following paragraph:
“6(a) ...........
(b)..........
(c)Evidence (brief description) Info received that cannabis crop growing at above prems, also info that person may be dealing in powder drugs.”

I do not see any discrepancy between the statement on the one hand and the statistical return on the other.
The appellant argued further that Detective Andrew’s evidence was inconsistent with Detective Robinson’s evidence.
It is true that Detective Andrew’s evidence was that he had been told by Detective Robinson that the informant had said that the appellant may have been growing cannabis, or was growing cannabis, whereas Detective Robinson denied that he told Detective Andrew that he was growing cannabis, as opposed to dealing in amphetamine.
I do not think that the discrepancy is material. Detective Andrew may well have received information that the appellant was growing cannabis from some other source which he confused with Detective Robinson.
Be that as it may, there could not be any real doubt on the evidence that the decision was taken to conduct a search of the appellant’s premises as a result of information which was given to Detective Robinson and which was passed on by him to Detective Andrew.
The trial judge heard evidence from both officers, and rejected the appellant’s contention that they were lying.
The fact that there was a discrepancy in what each of them recollected as to the substance of the communication between them does not add to the strength of the case for disclosure of the identity of the informant.
There is a separate contention that the trial judge erred in declining to permit the appellant to cross-examine Detective Robinson on an affidavit which he had filed in support of the claim of public interest immunity.
The circumstances leading up to this contention are that after the Crown had tendered all the evidence it proposed to call on public interest immunity, including affidavit evidence from Detective Robinson and Detective Andrew, and during the course of addresses by counsel on that question, the trial judge queried whether there was evidence that the informant had only provided the information on condition that it was kept confidential.
Counsel for the Crown responded by submitting that “the mere fact that [the informant] has given information to a police officer about drug activities in relation to a member of the Hell’s Angels Outlaw Motorcycle Gang is sufficient of itself for your Honour to draw the inference that it was said in circumstances where confidentiality should attach”.
She went on to say that if it was a matter which troubled the court, she would undertake to provide a further affidavit from Detective Robinson or seek to recall him to give further evidence.
Shortly after that exchange, counsel for the Crown proffered a further affidavit of Detective Robinson, which had just been sworn.
Relevantly, it is in the following terms:
“1.I am a Senior Constable attached to Drug and Organised Crime Operation Avatar. This section investigates Outlaw Motor Cycle Clubs and their criminal activities. I have been attached to this section since its inception in March 2001.
2.In about early June 2002 the information gave me information concerning Terry McKelliff. He said that Terry McKelliff was dealing in amphetamines from the Q Club. He said to me at this time that I could not tell anyone that he had told me this information as they, and in they he was referring to the Hells Angels, would kill him.
3.At the time that he gave me this information he also made other statements however I claim public interest immunity in relation to those further statements as to reveal that further information would or may tend to reveal the identity of the informant.
4.Further to provide details of the factual circumstances of this conversation, for example where it took place would also reveal or may tend to reveal the identity of the information and I claim public interest immunity with respect to this information also.”
When counsel for the appellant then sought to cross examine Detective Robinson on the further affidavit, the trial judge refused the request.
In his reasons for rulings, the trial judge indicated that his refusal of the application was based on the view that such cross-examination, in a case involving a claim that public interest immunity attaches to the identity of a police informant, should only be permitted in exceptional circumstances, and that such circumstances had not, in his view, been established.
The trial judge referred to authority on the point. He said: [20]
“42I was referred to the decision of the Full Court of the Federal Court of Australia in Young v Quinn,[21] and the judgment of Wilcox J in Hilton v Wells.[22] In Hilton v Wells [23] the Chief Justice said at page 227:
‘It was argued before us by counsel for the appellant that the court not only was not bound to allow cross-examination upon an affidavit tendered in support of a claim to public interest immunity, but was not entitled to do so, as a general rule. Comparison was made with an affidavit of discovery of documents. In such an affidavit a claim for privilege may be made. The rule is that the oath of the deponent in the case of an affidavit of discovery has to be accepted. The court will not permit cross-examination on such an affidavit and, generally, it will not permit countervailing evidence to be given, although there are well recognized exceptions to this (Edmiston v British Transport Commission;[24] Lyell v Kenney;[25] Ankin v London & North East Railway Co.[26] In such cases the affidavit is regarded as being required in order to pledge the oath of some person in a position to speak to the matters in the affidavit. It is not tendered as evidence in the lis. It was submitted that an affidavit making a claim of public interest immunity (taking the place of the certificate of a Minister which was formerly conclusive) was in the same way required in order to pledge the oath of someone able to speak to the facts; it was not tendered as evidence in the lis, but for the purpose of enabling the court to rule on the claim for immunity. There is a good deal of force in this submission.’
Shepphard J said at page 231:
‘But I am firmly of the view, applying the practice which exists in relation to claims for immunity from production of documents, that only in exceptional circumstances should cross-examination be allowed. That is principally because it will be impossible for any cross-examination to take place without any matters in respect of which the data is made becoming the subject of it and thus being revealed.’
43On the basis of what was said in those two cases, I declined the application to cross examine Senior Constable Robinson on his affidavit.”
[20] Reasons for ruling of the trial judge, par 42.
[21] (1985) 59 ALR 225, in particular at 227-228.
[22] (1985) 59 ALR 281.
[23] This reference is in error. The reference is to Young v Quinn.
[24] [1956] 1 QB 191.
[25] (1884) 27 Ch D 1 at 19.
[26] [1930] 1 KB 527.
I am not satisfied that in making that ruling the trial judge erred. There were obvious risks attendant upon any process of allowing Senior Constable Robinson to be cross examined as to what he was told by the informant.
Furthermore, I have already referred to the affidavit of Detective Jeffries, which was sworn before the question whether the informant had been given an express assurance of confidentiality, was raised. In the passage from his affidavit which I have set out above, he explains the circumstances in which the information was given in terms which leave little doubt as to the genuineness of the fears held by the police officers that the life of the informant would be in danger if his identity was to be revealed.
It could hardly have been otherwise, given the facts, which were not denied, that the appellant was the Sergeant in Arms of the Hell’s Angels Outlaw Motor Cycle Club; the information implicated him in drug dealing; and that with respect to at least some of the 13 charges of assault which had been laid against him between 1994 and 2001, the victims declined to give evidence or to assist the police.
Even if there had been no evidence as to those matters, a court is entitled to infer from the fact that information as to drug dealing is supplied to the police, and without more, that the informant’s life or personal safety may well be at risk.
Insofar as the appellant contends that the circumstances in which Detective Robinson’s further affidavit was sworn and tendered suggests that it was a fabrication designed to shore up the claim for public interest immunity, I see nothing in those circumstances to support such a suggestion. In any event, the trial judge was in the best position to assess the credibility of the evidence which he was given. No ground has been made out to justify this Court in taking a different view from that which he reached.
The validity of the search warrant (grounds 3 and 5)
At the time of the search of the appellant’s premises, Detective Andrew was attached to the Avatar Task Force, responsible for an ongoing investigation into so-called outlaw motor cycle clubs in South Australia.
He was the holder of a general search warrant issued pursuant to s 67 of the Summary Offences Act 1953.
The warrant was dated 1 January 2002, but as the trial judge found, it had in fact been signed on a date between 7 and 18 December 2001 by Neil John McKenzie, who at the time was Deputy Commissioner of the South Australian Police Force.
Mr McKenzie signed in his capacity as delegate of the Commissioner, who had exercised his power of delegation pursuant to s 19 of the Police Act 1998.
Section 67 of the Summary Offences Act with its heading is as follows:
“General search warrants
67.(1) Notwithstanding any law or custom to the contrary, the Commissioner may issue general search warrants to such members of the police force as the Commissioner thinks fit.
(2)Every such warrant must be in the form in the Schedule, or in a form to the same effect, and must be signed by the Commissioner.
(3)Every such warrant will, subject to prior revocation by the Commissioner, remain in force for six months from the date of the warrant, or for a shorter period specified in the warrant.
(4)The member of the police force named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the member may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that-
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)the member may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that-
(i)there are stolen goods’ or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)the member may seize any such goods or things to be dealt with according to law.”
Section 19 of the Police Act 1998 provides:
“19.(1) The Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on, or assigned to, the Commissioner by or under this or any other Act-
(a)to a particular person; or
(b)to the person for the time being occupying a particular position.”
In this case, the Commissioner executed a form of delegation to Mr McKenzie, the operative part of which read:
“1...... I hereby delegate to you all the powers or functions, conferred on or assigned to me by or under .... the Summary Offences Act 1953 and any other legislation.”
Mr Stretton of counsel for the appellant contended that because of the wide powers conferred by a general search warrant, the power of delegation in s 19 of the Police Act should be read down to exclude from the ambit of its operation the issuing of general search warrants.
I would reject the argument. There is nothing either in the nature of a general search warrant or in the terms in which the power of delegation is conferred by s 19 to lend support to that contention.
I accept that the exercise of a general search warrant may be a considerable intrusion on personal liberty and that that may be a relevant matter in considering whether the power of delegation extends to its issue.
However, I would have thought that the critical question is not whether the power to issue a general search warrant may be delegated, but whether the decision to issue it is made with appropriate care.
Mr Stretton further contended that either the warrant was invalid by reason of the fact that it was post-dated, or it operated only from the date of execution.
If the latter argument was correct, given that the warrant was operative for a period of six months only, it would have expired by the time of the date of the search of the appellant’s premises on 19 June 2002.
With respect to Mr Stretton, I can see no merit in either argument.
I see nothing in the relevant statutory provisions or otherwise to give support to the view that in issuing a general search warrant the Commissioner (or in this case his delegate) could not post-date it.
The general search warrants which were executed by Mr McKenzie were all post-dated apparently for reasons of administrative convenience and practicality. Mr McKenzie, who gave evidence on the voir dire, stated that the general practice was to sign what he described as a “new warrant”, that is, a warrant dated to take effect on the expiry of a pre-existing warrant, ten to fourteen days ahead of the expiry date of the old warrant. This was to avoid a situation arising in which a gap arose between the date of the expiry of the old warrant and the receipt by the warrant holder of the new warrant.
The form of a general search warrant is set out in a schedule to the Summary Offences Act. The operative part of the form is as follows:
“To
You are hereby authorised at any time in the day or night, with such assistants as you think necessary, to enter into and search any house, building, premises of place where you have reasonable cause to suspect that-
(a)an offence has been recently committed, or is about to be committed; or
(b)there are any goods obtained by an offence; or
(c)there is anything which may afford evidence as to the commission of an offence; or
(d)there is anything which may be intended to be used for the purpose of committing an offence,
and to break open the house, building, premises or place and to break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which you have reasonable cause to suspect that-
(e)there are any goods obtained by an offence; or
(f)there is anything which may afford evidence as to the commission of an offence; or
(g)there is anything which may be intended to be used for the purpose of committing an offence,
and to seize any such goods or things, to be dealt with according to law.
This warrant remains in force for a period of ... months¹ from the below date.
Dated: ......... (day) .................. (month) ..............(year).
Commissioner of Police
¹ A general search warrant remains in force for 6 months from the date of the warrant or such lesser period as is specified in the warrant - see section 67(3).”
Having regard to the form of the warrant, it seems to me that the date to be specified is intended to be the operative date from which the warrant takes effect. I see nothing in the form to suggest that it must necessarily be the date upon which it is signed.
Furthermore, I see nothing irregular in the Commissioner of Police signing a warrant in escrow to take effect at a subsequent date.
I do not think that the way to cope with the practical difficulty identified in the evidence of Mr McKenzie is to execute warrants which overlap in terms of their operation. It is at least arguable that it would be an inappropriate use of the power to issue more than one warrant to the same recipient, with overlapping terms of operation.
In argument, it was suggested that if the legitimacy of the practice of post-dating warrants was to be accepted, a series of warrants could be executed with dates carrying forward for what might be some years to the recipient’s projected retirement.
I accept that in certain extreme circumstances, post-dating could amount to an irregular exercise of the power to issue a warrant. It would be unwise to attempt in advance to identify situations in which that might be so. But I do not think that there was any irregularity in the process adopted in this case.
I would reject the arguments of the appellant based on the dating of the warrant.
The other argument put forward by the appellant as to the formal validity of the warrant was based on the alleged failure on the part of Mr McKenzie to give adequate consideration to the fitness of the warrant holder to be issued with a warrant.
Mr Stretton argued that Mr McKenzie did not know all of the detectives concerned. Furthermore, he signed all 450 or so warrants at his home one evening, which meant that he could have spent perhaps thirty seconds on each of them and that he had kept no file or notes concerning the issue of the warrants. Mr Stretton contended that this reflected an inadequate consideration of the fitness of the proposed warrant holder, and was accordingly an improper exercise of his statutory power to issue a warrant.
Mr Stretton further argued that it was not proper for Mr McKenzie to rely upon a memorandum provided by the Manager of the Human Resource Management Branch of the South Australian Police to identify the officers which it was suggested were appropriate officers to receive a warrant.
Relevantly, the terms of the memo were:
“The names of the officers identified on the attached 1391’s are forwarded for consideration of re-issue with a General Search Warrant pursuant to section 67 Summary Offences Act and General Order 2740.
These officers have been assessed by the Manager, Human Resource Management Branch as suitable in that:
*They are appropriate officers to receive a General Search Warrant because of the duties they perform; and
*They have a genuine need to possess a General Search Warrant.”
It appears from the evidence that before signing the batch of warrants in question Mr McKenzie had given consideration to the criteria for the issue of warrants. It appears that he had been made aware of the decision of Judge Anderson in the District Court in the matter of R v Thaller and Gee.[27] He noted on a copy of Judge Anderson’s reasons in that case the following:
[27] (Unreported) [1998] SADC D3940.
“The reissue consideration.
A fresh discretion
1.Knowledge of the person;
2.Knowledge of his posting;
3.Knowledge of the work at that posting;
4.Opinion that a search warrant was required for those duties at that location;
5.That person needed a search warrant;
6.Essential investigate tool for an investigator.”
Mr McKenzie also referred in his evidence to a General Order of the South Australian Police Force relating to the issue of general search warrants, which reads:
“The Commissioner issues general search warrants under section 67 of the Summary Offences Act to:
*Selected officers of police;
*Officers in charge of stations;
*Designated Detectives
They may only be issued to officers who, because of the duties they perform, have a genuine need to possess a general search warrant.”
Mr Stretton argued that in the first place it was incumbent upon Mr McKenzie before issuing a general search warrant to any person to personally satisfy himself as to the fitness of that person to receive the warrant; and in the second place, that any assessment of the suitability of the proposed recipient of the general search warrant must be made by the Commissioner, or in this case, the Deputy Commissioner Mr McKenzie himself, rather than by someone else.

In my view, both arguments should be rejected.
Indeed, I doubt whether it is necessary for the Commissioner, when issuing a general search warrant, to make any specific inquiry as to the fitness of the recipient.
Mr Stretton’s argument as to that aspect of the matter, with respect to him, appears to be based upon a misreading of s 67(1) of the Summary Offences Act.
As has been seen, that subsection authorises the Commissioner to issue general search warrants “to such members of the police force as the Commissioner thinks fit” (emphasis added). The words “thinks fit” do not give rise to an obligation upon the Commissioner to consider the fitness of the recipient of a general search warrant. On the contrary, the words “thinks fit” simply mean, in the context of the section, that the identification of a person as a recipient of a general search warrant is entirely a matter for the discretion of the Commissioner.
In the second place, to the extent that any inquiry might be necessary (and I doubt whether there is any obligation to make any inquiry as to the appropriateness of the proposed recipient of the general search warrant to receive it), I see no reason why the Commissioner should not act upon a report prepared by a member of his or her staff, or some other officer in the police force.
In particular, I see no reason why it would not be a proper exercise of the power to issue a search warrant for the Commissioner to identify the persons to whom such a warrant is to be issued by reference to their rank or status within the police force; by reference to the particular division or section within the force in which they may be engaged; by reference to the duties which they may be called on to perform; by reference to their need for a warrant; or by having regard to a combination of any of those matters.
The arguments against the validity of the warrant issued to Detective Andrew must fail.
Even if I am wrong in that conclusion, an appeal to the exercise of the discretion to exclude the evidence obtained on the search would be bound to fail.
There can be no doubt that Mr McKenzie acted in good faith in signing the warrant, and Detective Andrews had no reason to suppose that the warrant which he held was invalid.[28] The evidence which was obtained was cogent. While no doubt the evidence was prejudicial to the appellant, even highly prejudicial, there was no basis on which it would have been proper to exclude the evidence: see R v Hulse[29] per Bray CJ, Mitchell and Wells JJ:[30]
“If the probative value is high and the evidence is admissible, the fact that its prejudicial effect is also high is nothing to the point. A criminal trial is not a handicap race.”
[28] See R v Trotter and Ors (1992) 58 SASR 223 per Perry J at 229-230.
[29] (1971) 1 SASR 327.
[30] Ibid at 330.
The legality of the search (grounds 4 and 5)
Mr Stretton argued that the search was illegal.
Insofar as he put that argument forward on the basis that the warrant held by Detective Andrew was invalid, I have already dealt with that aspect of the matter.
Insofar as Mr Stretton suggested that Detective Andrew did not have “reasonable cause to suspect” that there was anything in the premises which might “afford evidence as to the commission of an offence”, it seems to me that the information given to Detective Andrew by Detective Robinson was sufficient to answer to that requirement.
Mr Stretton further argued that the manner in which entry was effected onto the premises and the manner in which the search warrant was executed were irregular, and for that reason the search was illegal.
The argument is based on the statement given by Detective Andrew dated 28 August 2002, the relevant part of which he confirmed in evidence on the voir dire.
In the statement, Detective Andrew says:
“At about 11.30 am that morning in company with Senior Constable ROBINSON, Detective DAWKINS and Constables NASH, BALDWIN and HLAVNICKA, we attended domestic premises at 18 Pelsaert Avenue, FAIRVIEW PARK. Upon arrival at that location I attempted to communicate with and raise the occupant whilst at the front of the house, with no success. I then gained entry via the roller door to the driveway and again made attempts to raise the occupant via the northern side door, again with no success.
I then caused enquiries to be made in relation to the occupant of the premises, a male person I now know as the accused in this matter, Terry John MCKELLIFF. I personally made numerous phone calls over a lengthy period to associates of the accused to establish his whereabouts, without success.
At about 11.40 am that morning I was then approached by Senior Constable ROBINSON whom informed me that he had located a small galvanised shed in the rear yard of the premises. This smaller shed was attached to a larger shed next to it. I was also advised that there was a strong smell of cannabis coming from within the shed and that there was a hydroponic set up within the shed for growing cannabis.
I then executed my General Search Warrant on the premises, subsequently at about 11.45 am that morning Senior Constable ROBINSON gained entry to the galvanised shed previously mentioned. After entry was gained into the larger shed via the smaller shed, Robinson advised me that there was an active hydroponic cannabis crop growing inside. I then entered the larger shed and saw six (6) cannabis plants growing in pots. Five of these cannabis plants were about one metre in height; the sixth plant was about 50 cm in height. I also saw a number of electrical ballast boxes on the eastern most wall, as well as high wattage ‘grow’ lamps and electrical timers. These plants appeared healthy and well cared for.
I then directed Senior Constable ROBINSON to photograph the shed and contents and shortly after that, other members assisted in the removal of the cannabis plants and hydroponic equipment from within the shed.
I then made further attempts to contact the accused via phone calls to his known associates and other known premises where he frequents. This continued for about one hour without success.
At about 1.30 pm that day entry was gained to the premises by Senior Constable ROBINSON via the roof area of the house. ROBINSON opened the door to the house on the driveway side; I then entered the house with other members. I then organised a search of the house with the members present; Constable REA was the designated exhibit officer.” (emphasis added)
Detective Robinson gave evidence that after the police officers came to the premises, and while outside the premises, Detective Andrew, having failed to raise the appellant by telephone, told Detective Robinson to go over the fence, which he did. Following that, he opened up a roller door near the carport, through which the other officers then entered the premises. They then knocked on the door and the windows, and looked through the windows but could not see anyone inside.
Detective Robinson then went to the shed in the back yard, where he observed the cannabis and hydroponic equipment for its cultivation.
After that, the police officers entered the house, gaining entry through the roof.
Mr Stretton seized on the words in Detective Andrew’s statement “I then executed my general search warrant on the premises”, referring to the entry made into the house. He submitted that what the police officers had done until that moment in gaining entry to the premises and in searching the shed, et cetera, amounted to an unlawful trespass.
I would reject the argument.
Clearly, Detective Andrew and those assisting him that morning had authority pursuant to the warrant to scale the fence, lift up the roller door, and enter the yard and the shed before entering the house.
Furthermore, equally clearly, Detective Andrew set off that morning to attend at the appellant’s premises, and if necessary to execute his warrant in order to gain entry and to search.
I think that it matters little as to the precise point of time at which Detective Andrew might have made a conscious decision to execute the general search warrant.
He had the general search warrant all along. As I have said, it authorised all of the actions taken that morning.
The appellant’s argument that there was an illegal entry onto the premises must be rejected.
Conclusion
For these reasons, I would dismiss the appeal.
GRAY J.                 I agree with the conclusions reached by Perry J. I agree with his reasons. I would dismiss the appeal.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. Judgment [2003] SADC 145, 24 September 2003.
2.   Two confidential affidavits were put before the trial juge, the contents of which were not released to the appellant or his counsel. The members of this Court have not read them.
3. (2000) 77 SASR 105, Doyle CJ, Mullighan and Bleby JJ.
4. (Unreported) 21 March 2001, judgment No [2001] SASC 65, Doyle CJ, Olsson and Perry JJ.
5.   Ibid par 13-18 inclusive.
6. (1996) 86 A Crim R 308 at 311-312.
7. (1985) 3 NSWLR 230 per McHugh JA at 246-247.
8. (1984) 154 CLR 404.
9.   (Supra) at 242.
10.   Haydon (supra) per Doyle CJ at par 15.
11.   Ibid per Perry J at par 66.
12.   Haydon at par 30.
13. [1955] 1 VR 84.
14. [1995] 1 VR at 89.
15.   Ibid at 90.
16.   Ibid at 91.
17.   Air Canada v Secretary of State for Trade (1983) 2 AC 394 per Lord Wilberforce at 439, cited with approval by Gibbs CJ in Alister v The Queen (1983-1984) 154 CLR 404 at 414.
18.   Reasons for ruling of the trial judge, par 34.
19.   Reasons for ruling of the trial judge, par 44.
20.   Reasons for ruling of the trial judge, par 42.
21. (1985) 59 ALR 225, in particular at 227-228.
22. (1985) 59 ALR 281.
23.   This reference is in error. The reference is to Young v Quinn.
24. [1956] 1 QB 191.
25. (1884) 27 Ch D 1 at 19.
26. [1930] 1 KB 527.
27. (Unreported) [1998] SADC D3940.
28.   See R v Trotter and Ors (1992) 58 SASR 223 per Perry J at 229-230.
29. (1971) 1 SASR 327.
30.   Ibid at 330.

[2004] SASC 63

11 March 2004