R v McKelliff

Case [2004] SASC 63

R v McKELLIFF
[2004] SASC 63

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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. In his notice of appeal, the appellant advances five grounds of appeal which may be summarised as follows.

  10. 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

  11. 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

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AGLC
R v McKelliff [2004] SASC 63
Case
[2004] SASC 63
Decision Date

CaseChat Overview and Summary

The case of R v McKelliff involved an appeal against the conviction of the appellant, who was found guilty of various drug-related offences. The trial judge had made several rulings that the appellant contested on appeal, including upholding a claim of public interest immunity, rejecting a request to cross-examine a police officer on his affidavit, and ruling that the search of the appellant's house was lawful. The appeal was dismissed by the court, which found no error in the trial judge's rulings.

The legal issues before the court were whether the trial judge erred in upholding the claim of public interest immunity, denying the appellant's request to cross-examine a police officer, and ruling that the search of the appellant's house was lawful. The appellant also argued that the trial judge should have excluded certain evidence obtained during the search.

The court found that there was no error in the trial judge's rulings. The court held that the claim of public interest immunity was properly upheld, as the affidavits in question contained sensitive information that could not be disclosed to the appellant. The court also found that the trial judge did not err in denying the appellant's request to cross-examine the police officer, as the officer's affidavit did not contain any material that would have been useful for cross-examination. Finally, the court held that the search of the appellant's house was lawful, as the police had a valid general search warrant and reasonable grounds to believe that there were drugs on the premises.

The court dismissed the appeal and affirmed the conviction of the appellant. The court held that the trial judge's rulings were correct and that there was no basis for overturning the conviction. The appellant's arguments were rejected, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ (dissent) PERRY J (dissent) GRAY J (dissent)
I agree with the conclusions reached by Perry J. I agree with his reasons. I would dismiss the appeal.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT1. 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.

Ratio Decidendi

Legal Principle Established

Established by:

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