R v Mckelliff No. DCCRM-02-1104

R v Terry John McKelliff
[2003] SADC 145
Judge Clayton
Criminal
Background

Terry John McKelliff was charged with one count of possessing methylamphetamine for sale and one count of possessing lysergide for sale.
By application pursuant to rule 9 of the District Court Rules, he challenged the admissibility of five categories of evidence. Some items were agreed and for present purposes it is only necessary to deal with that part of the application which sought to exclude evidence of material located during a police search of premises.
The evidence in question was obtained during the course of a search purportedly in compliance with the powers in a general search warrant. The applicant argued that the search was illegal and constituted a trespass. It was said that the police officers who conducted the search did not possess a valid warrant, because the general search warrant was not validly issued and the holder of the warrant did not have a sufficient basis to search the premises. It was argued that entry to the property was forcibly gained before the officer purported to exercise any power under the warrant and that it was only after a shed at the rear of the premises had been illegally searched and cannabis found that the holder of the warrant used the fruit of that illegal search to justify breaking into the premises and locating the evidence which was the subject of the application.
The rule 9 application was considered at a lengthy hearing on the voir dire.
Before any evidence was heard on the voir dire, there was argument about a subpoena which had been served upon the Commissioner for Police. The applicant sought the production on the voir dire of material which would identify an informant who provided the information which caused the holder of the warrant to form the beliefs required to enliven the warrant.
During the course of the hearing the prosecution contention that information had actually been provided by an informant to a police officer was an issue. Also, the accused suggested as a defence the fact that the drugs which were found during the search may have some connection with the informant. The identity of the informant was, therefore, said to be relevant.
Some documents were produced by the Commissioner pursuant to the subpoena. In respect of others, I upheld the objection as to relevance and/or the Commissioner’s claim of public interest immunity and I declined to order that any documents which may have identified the informant, be produced.
The Crown argued that it was not possible to go behind the face of the warrant. It was submitted that the challenge to the warrant could go no further than a consideration of the ability of the Commissioner to delegate the power to issue warrants to others. It was submitted that it was not permissible to examine the process which had been undertaken by the Deputy Commissioner when he issued the relevant general search warrant. On 15 July 2003 I ruled that the attack on the warrant could extend beyond the delegation by the Commissioner to the Deputy Commissioner of the power to issue search warrants. I said :
“The Crown has taken objection to this voir dire extending to exhibit VDA8. It is said that the drawing of inferences from VDA8 is an inquiry which is not permitted. The Crown relies in particular upon the decision of the Full Court in Question of Law Reserved on Acquittal (No 5) (2000) 76 SASR at 456. The argument has been extensive and ranged beyond the objection. At this point I must be careful to confine myself to the objection which has been raised.
Incidental to the objection is the question of the admissibility of exhibit VDA8 into evidence on the voir dire. Mr Stretton has acknowledged that the sufficiency of the material before the issuer of a warrant cannot be challenged. That is clear from Ousley v R (1997) 192 CLR 69, in particular the reasons of Gaudron J at p.87 ....
However, Mr Stretton has argued that a collateral challenge can be made on grounds such as where the issuer of a warrant has addressed the wrong issue. I think that is right.
In Question of Law Reserved on Acquittal (No 5), each of the three judges acknowledged that there were areas in which a collateral challenge could be made to a warrant. Mullighan J would permit such a challenge in the case of Wednesbury unreasonableness, Lander J would permit an inquiry as to whether the issuing officer had been satisfied on the information placed before him on oath, and Williams J would have permitted a collateral challenge on the question of whether the warrant was regularly issued on procedural grounds.
In my opinion, while the sufficiency of the material before Mr McKenzie cannot be the subject of a voir dire, there is still scope for a collateral challenge. I don’t attempt to identify what that scope might be. If at the end of the voir dire the argument put by the applicant goes beyond what is permitted, then that matter can be dealt with at that time.
For those reasons, I disallow the objection. I admit exhibit VDA8, or perhaps to the extent that it is already in evidence, I confirm its admissibility and I reserve the right to deliver reasons should that become necessary.”
Evidence was then called and there was argument as to the validity of the warrant and the lawfulness of the exercise of the warrant.
On 23 July 2003, I ruled that the warrant was not invalid and that the powers were not exercised in a way which was unauthorised. I found that the actions of the police officers which led to the evidence being obtained were authorised by the warrant. Accordingly, I declined to exclude the evidence which was the subject of the application. I said that I would deliver reasons later if required. These reasons have been prepared as a consequence of that intimation.
The Facts
In June 2002, Detective James George Andrew was an acting Detective Sergeant attached to the Avatar Taskforce, an ongoing investigation into outlaw motorcycle clubs in South Australia. Detective Andrew was the holder of a general search warrant issued pursuant to section 67 of the Summary Offences Act. The warrant was dated 1 January 2002, and was one of a batch of about 550 search warrants which had been signed some time in December 2001, by Mr Neil John McKenzie who, at the time, was Deputy Commissioner of the South Australian Police.
On 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.
Detective 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.
As 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.
The 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.
After 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.
Senior 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.
Detective 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.
At 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.
The 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. The purpose of the application was to have evidence of those items excluded.
While 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.
The Subpoena Served Upon the Commissioner of Police
At the voir dire hearing, the applicant served a subpoena on the Commissioner of Police seeking material relating to the informant who had provided the information which gave rise to the belief that was the basis for the exercise of the general search warrant. The subpoena was challenged and the Commissioner was represented by the Crown Law Office. The Commissioner relied upon an affidavit of Senior Sergeant Glen Jeffries, who was the acting officer in charge of Avatar.
Only one document, an edited history of the convictions of the informant, was produced. A claim for public interest immunity was made in respect of portions of the document which had been edited out.
An objection was made to the production of other documents, first on the ground of relevance, and secondly on the basis of public interest immunity. The basis for the objection was set out in the affidavit of Senior Sergeant Jeffries.
The claim for public interest immunity was based upon the fact that the documents contained information which would or might tend to identify the informant.
Amongst other things Senior Sergeant Jeffries deposed :
“14.Further the promise of confidentiality underpins police-informant relationship. Informants supplying information regarding the activities of persons associated or involved with organised motorcycle 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 a involved in the Hells Angels since about 1997.”
Mr Stretton, who appeared for the applicant, objected to paragraphs 13 and 19 of the affidavit. Paragraph 19 of the affidavit was conceded by the Commissioner and was therefore struck out. I ruled that paragraph 13 should be struck out because there was no basis for the opinion expressed in that paragraph.
After discussions, the applicant’s request became confined to three of the documents, namely, exhibits GDJ4, GDJ5 (firearms information) and exhibit GDJ8 (other incidents where the alleged informant accused people of committing offences). It was said that disclosure of the identity of the informant was necessary to enable the defence to investigate an hypothesis consistent with innocence.
Counsel for the Commissioner relied on the reasons of Bleby J in R v Mason (2000) 77 SASR 105. His Honour said at page 110 :
“The rule of law, now well established from a long line of cases, is that the identity of police informers may not be disclosed in most legal proceedings. This forms part of the general immunity from disclosure granted in respect of communications made in the public interest. The rule and its rationale are adequately described by Lord Diplock in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 :
‘The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus (1890) 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.’ ”
Counsel for the Commissioner submitted the questions that arose were, first, whether the documents were capable of raising the informant privilege, and secondly, if they were, what was the importance to the public interest that the documents be disclosed. It was submitted that the Court must consider whether there is good reason to think that the disclosure of the informant’s identity may be of substantial assistance in answering the case against the accused. A third question was where did the balance of the public interest fall. It was said disclosure of an informer’s identity was not sufficient to outweigh the public interest of non-disclosure.
Mr Stretton sought the information in order to check the veracity of Senior Constable Robinson. It was submitted by the prosecution that purpose did not satisfy the test set out in Mason. In Mason Bleby J said at page 116 :
“In my opinion, the description by Sergeant Foot of the informer could not reasonably have been said to be capable of being of any assistance to the appellant. The effect of that evidence, if given, could have been little more than speculative or, at the most, of very slight assistance. It was insufficient to outweigh the public interest in non-disclosure. If disclosure were required merely because it might enable an accused person to pursue a possible line of inquiry, it would be tantamount to destroying the very immunity which the public interest protects. The same could be said of any informer. In my opinion the appellant has been unable to bring himself within the exception to the public interest immunity rule.”
There was no evidence before the Court in this application to suggest that disclosure would have done more than to enable the applicant to investigate any line of enquiry that may have been opened up.
Identification of the informant was not relevant to any positive case which had been advanced by the accused. Put another way, the applicant required the informant to be identified so that he could embark upon a “fishing” expedition. In my opinion, that was not sufficient to outweigh the public interest in non-disclosure. There was nothing to suggest that the identity of the informer would be of any assistance to the accused in establishing his innocence.
The applicant suggested that 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. No positive basis was put forward for challenging the credibility of Senior Constable Robinson. Again, it was merely a “fishing” expedition.
Mr Stretton relied upon the decision of the High Court in Alister v The Queen (1984) 154 CLR 404. Gibbs CJ referred to the speech of Lord Wilberforce in Air Canada v Secretary of State for Trade (1983) 2 AC at page 439, and continued :
“In the latter case the House of Lords divided on the question whether, before inspection is ordered, the document should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to exist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam (1978) 142 CLR at pages 42 and 62), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”
Mr Stretton submitted that the comments of Bleby J in Mason were out of step with those of Gibbs CJ in Alister. He submitted that all the defence needs do is establish to the Court that there is a reasonable possibility that the information will assist the defence, either as evidence, as material based on cross examination or as material that would lead to a line of enquiry which might help to exonerate the accused.

Factually, the applicant did not make out any of those criteria. Accordingly, even if I did accept the submission that the Court of Criminal Appeal had introduced a test which is too high, I was not satisfied that the applicant had satisfied the lower test or that, to use the words of Gibbs CJ, it was “on the cards”, that the documents would materially assist the defence.
Mr Stretton’s final submission on this issue related to whether the condition of confidentiality in respect of the informer had been satisfied. That issue was also considered by Bleby J in R v Mason at page 113. Bleby J said :
“Merely because nothing is said does not mean that a condition of confidentiality has not been acknowledged. Often it will be implied from the conduct of the parties and from the other surrounding circumstances. In the examples I have mentioned above, the very brevity or incompleteness of the information will be a strong indicator that the condition applies. It is pointless to attempt to list all the circumstances which might give rise to an inference that the informer intended that the information should be given conditional upon his identity remaining confidential.
Where the informer has not made known explicitly the basis upon which the information is given, and in particular has not made known that it is given conditional upon his identity remaining confidential, then in the absence of evidence to the contrary, I consider that a court should be prepared readily to draw the inference from any conduct of the informer or from other surrounding circumstances that it was given on such a condition. Such an approach is consistent with the purpose and rationale of the rule, namely, to give effect to the public interest in ensuring that a person is not deterred, for whatever reason, from giving relevant information to the police for the detection and prevention of crime.”
Even if there was no express condition of confidentiality, I have no difficulty in drawing an inference that the information was given on a confidential basis.
Counsel for the Commissioner relied upon an affidavit of Senior Constable Robinson sworn on 10 July 2003. He was the officer who received the information from the informant and passed the information to Detective Andrew.
Mr Stretton applied to cross examine Senior Constable Robinson on his affidavit. He did not claim an absolute right to cross examine on the affidavit, but said that he ought to be able to do so where there was a legitimate purpose in it and a basis for it. He submitted that there was a basis for it and that he ought to be able to do so.
I was referred to the decision of the Full Court of the Federal Court of Australia in Young v Quinn (1985) 59 ALR 255, in particular at 227-228 and the judgment of Wilcox J Hilton v Wells (1985) 59 ALR 281 at 288. In Hilton v Wells 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 [1956] 1 QB 191; Lyell v Kennedy (1884) 27 Ch D 1 at 19; Ankin v London & North East Railway Co [1930] 1 KB 527). 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.”
Sheppard 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.”
On the basis of what was said in those two cases, I declined the application to cross examine Senior Constable Robinson on his affidavit.
The applicant sought production of the firearms records relating to the informant. The “card” that the information might throw up was said to be that the informant had been involved in criminal or organised criminal activity in the drugs context. There was no evidence to suggest that the informant had actually been involved in any such activity. In my opinion, the application was plainly “fishing”. It was not “on the cards” that the firearms information could materially assist the defence in any way.
Mr Stretton submitted that the firearms information in conjunction with the identity of the informant might enable the accused to prove that that person was an organised criminal and drug trafficker who had contact with the drugs which were the subject of the application and/or some involvement with those drugs. He said that was an hypothesis consistent with innocence that the accused was entitled to pursue. At the trial it was suggested that the informant was a person who bore the accused a grudge and planted the drugs at the premises.
There was no evidence to suggest that there was any substance in the assertion made by Mr Stretton. The argument was purely hypothetical.
Exhibits GDJ4 and GDJ5 were firearms documents. The first recorded the firearms which the informant had registered in his name. The second recorded the informant’s firearms licence details. Exhibit GDJ8 contained seven police incident reports relating to incidents in which the informant had been the victim or had reported an offence. None of the incidents related to the applicant or organised motorcycle gangs.
I declined to order the production of exhibits GDJ4, GDJ5 and GDJ8 pursuant to the subpoena. The ruling I made was :
“I decline to order production of GDJ4, GDJ5 and GDJ8. In my opinion the firearms documents do not go to any issue in this case. GDJ8 similarly does not go to any matter in issue in this case. I take into account what Mr Stretton said having viewed the document. Having viewed the affidavit, it is clear that the information in the documents would not assist the potential argument that Mr Stretton has identified. In addition, I uphold the claim of public interest immunity in the form of privilege which has been claimed by the Police Commissioner.”
The General Search Warrant
Mr Stretton argued that the general search warrant was invalid for four reasons, three of which he disclosed and one of which he did not open on prior to the giving of evidence by the police officers, but did disclose in due course.
First, it was said that the power to issue general search warrants was so important that it could not be delegated and the general power of delegation in the other statutes should not be taken as authorising a delegation.
Secondly, it was said that the general search warrant was not validly issued. That argument involved consideration of the words “such members as the Commissioner shall think fit”, in section 67(1) of the Summary Offences Act. Mr Stretton argued that there must be an element of the assessment of the recipient as being an officer who could be trusted with such a draconian power. It was submitted that the warrant had been issued on the basis of wrong criteria. It was said that the face of the record, albeit not necessarily the warrant, indicated that a specifically wrong jurisdictional basis was used by the decision maker so that there was a jurisdictional error of law on the face of the record and accordingly, the warrant was invalid.
The Ambit of the Hearing on the Voir Dire
The Crown objected to the hearing on the voir dire extending to exhibit VDA8, that is, the memorandum to the Deputy Commissioner from the Human Resource Management Branch, dealing with the re-issue of general search warrants for the period 1 January 2002 to 30 June 2002.
The Crown submitted that no enquiry could be made into what was in the mind of Mr McKenzie, because that would amount to a collateral attack on the warrant. Reliance was placed upon R v A Question of Law Reserved on Acquittal (No 5) (2000) 76 SASR 356 and Craig v The State of South Australia (1995) 184 CLR 163.
The Crown argued that the Court should not permit an enquiry on the voir dire that went behind the face of what was otherwise a valid warrant.
Mr Stretton disputed that proposition which he said was not supported by the authorities. He contended that the principles were first, that if a warrant is invalid on its face it will be void and secondly, that if the warrant is valid on its face, there can nonetheless be a collateral attack on its validity. Mr Stretton argued that administrative law principles apply. He referred to Ousley v R (1997-98) 192 CLR 69, which is to the same effect as R v A, that is, that the issue of a warrant is an administrative act capable of collateral attack.
Mr Stretton argued that the warrants must show their jurisdictional basis on their face by direct inference or reasonable inference. He referred to Gaudron J in Ousley at pages 88 and 89. He said the question was whether the warrant should, on its face, have disclosed to the satisfaction of the Commissioner that the person named in the warrant was fit to hold the warrant. Exhibit VDA6, the general search warrant issued to Detective Andrew, did not do that.
The warrant was in the form set out in the Summary Offences Act.
Mr Stretton said that the “record” extended to the memorandum that went to the Deputy Commissioner (exhibit VDA8) and that contained an error. Mr Stretton said exhibit VDA8 introduced wrong considerations. The names of the proposed recipients of the general search warrants had 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.
He complained that there was no focus on the fitness of the particular individuals rather than a consideration of appropriateness because of unspecified duties. He said the other criterion, namely, “a genuine need”, was meaningless. He argued that the word “fit” in section 67 related to the fitness of the person to whom the warrant was to be issued and that the warrant should have disclosed on its face the satisfaction of the (Deputy) Commissioner, that the person in the warrant was fit to hold the warrant.
On this preliminary issue I ruled :
“The Crown has taken an objection to this voir dire extending to exhibit VDA8. It is said that the drawing of inferences from VDA8 is an inquiry which is not permitted. The Crown relies in particular upon the decision of the Full Court in Question of Law Reserved on Acquittal (2000) 76 SASR at 456. The argument has been extensive and ranged beyond the objection. At this point I must be careful to confine myself to the objection which has been raised.
Incidental to the objection is the question of the admissibility of exhibit VDA8 into evidence on the voir dire. Mr Stretton has acknowledged that the sufficiency of the material before the issuer of a warrant cannot be challenged. That is clear from Ousley v R (1997) 192 CLR at 69, in particular the reasons of Gaudron J at p.87, the second paragraph, which I will not read having regard to the nature this exercise.
However, Mr Stretton has argued that a collateral challenge can be made on grounds such as where the issuer of a warrant has addressed the wrong issue. I think that is right.
In Question of Law Reserved on Acquittal, each of the three judges acknowledged that there were areas in which a collateral challenge could be made to a warrant. Mullighan J would permit such a challenge in the case of Wednesbury unreasonableness, Lander J would permit an inquiry as to whether the issuing officer had been satisfied on the information placed before him on oath, and Williams J would have permitted a collateral challenge on the question of whether the warrant was regularly issued on procedural grounds.
In my opinion, while the sufficiency of the material before Mr McKenzie cannot be the subject of a voir dire, there is still scope for a collateral challenge. I don’t attempt to identify what that scope might be. If at the end of the voir dire the argument put by the applicant goes beyond what is permitted, then that matter can be dealt with at that time.
For those reasons, I disallow the objection. I admit exhibit VDA8, or perhaps to the extent that it is already in evidence, I confirm its admissibility and I reserve the right to deliver reasons should that become necessary.”
The Special Nature of the General Search Warrant
Mr Stretton was at pains to point out the special nature of the general search warrant. He referred to the speeches in the South Australian Parliament at the time when Parliament gave the power to issue such warrants to the Commissioner of Police; but in South Australia there is no equivalent of section 15AB of the Commonwealth Acts Interpretation Act which authorises a consideration of the report of Parliamentary proceedings in the interpretation of a provision in an Act. His argument was founded on the principle which has been recognised for centuries that :
“The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence; as for his repose …” Semayne’s case (1605) 77 ER 194 at 195.
The principle has been acknowledged in many subsequent cases. Resentment over the misuse of general search warrants was one of the causes of discontent which led to the American War of Independence. More recently in this State, the unusual nature of the general search warrant was discussed by Jacobs J in Tran Nominees Pty Ltd v Scheffler Raven and the State of South Australia (1986) 42 SASR 361. At page 369 His Honour said :
“There is, I think, no doubt about the guiding principles. The issue and execution of a warrant to search and seize, or both, represents an invasion of the liberty of the subject, which was jealously protected by the common law, and the need for protection against abuse or unauthorised invasion is still a guiding principle when the authority to enter or search or seize is derived from a statute : the court will construe such statute strictly, resolving any ambiguity in favour of the subject, and insist upon strict compliance with the statute and the conditions upon which the warrant is authorised (England Revenue Commissioners v Rossminster Ltd; Crowley v Murphy per Lockhart J at pages 513).”
The Delegation of the Power to Issue the Warrant
The argument put on behalf of the applicant is not novel. It has been put to Judges of this Court on several occasions and been rejected. Counsel for the applicant argued that those earlier decisions are not binding.
The general search warrant is a creation of the South Australian Parliament. Section 67(1) of the Summary Offences Act provides :
“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.”
For the purposes of that Act, “the Commissioner” is defined in section 4 to be :
“‘the Commissioner’ means the Commissioner of Police or the person for the time being acting in the office of Commissioner of Police.”
There is no suggestion that Mr McKenzie, who issued the warrant, was a person who was acting in the office of Commissioner. His power to issue the warrant depended upon section 19 of the Police Act 1998 which 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.”
The Commissioner executed a form of delegation to Mr McKenzie which stated:
“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 submitted that the right to issue general search warrants should be confined exclusively to the Commissioner of Police because of the nature of the warrants. He said that was what Parliament had intended when it passed the legislation.
Whether there is merit in that policy is not the question. It is simply a matter of interpreting the two statutes. Under section 19 of the Police Act, the Commissioner may “delegate any of the powers or functions conferred on, or assigned to, the Commissioner by or under this Act or any other Act ...”. There is nothing in the Summary Offences Act to indicate that the power conferred on the Commissioner by section 67 of that Act should be excluded from his power to delegate.
Section 19 authorises the Commissioner to delegate the powers or functions conferred on the Commissioner “by or under ... any other Act”. That clearly includes the power to issue general search warrants under section 67(1) of the Summary Offences Act. Mr Stretton referred to cases, which establish that statutory provisions such as section 67 must be construed strictly and any ambiguity resolved in favour of the subject.
Even if one adopts a strict interpretation of section 19, that does not lead to the result for which Mr Stretton contends. There is no ambiguity, which could be resolved in the applicant’s favour.
The real issue is the interpretation of section 19 of the Police Act. The section is clear. There is no reason to confine its operation. Section 53 was the predecessor to section 19. In R v Bruno, Softley & Wilson, Judge Sulan (as he then was) said of section 53 :
“In my view, section 53 is unambiguous in its terms. It provides that the Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on or assigned to him under the Police Act and any other Acts. The authority to delegate gives the Commissioner a very wide power to delegate his functions. I consider section 53 still requires the Commissioner to exercise his authority reasonably.”
That comment has equal application to section 19 of the Police Act.
Judge Rice came to a similar view in R v Ellul (2001) SADC 6. So did Judge Anderson in R v Thaller and Gee (2003) SADC 14.
As requested, I have considered the matter afresh, but at the end of the day, I have come to the same conclusion as Judge Sulan did in R v Bruno, Softley and Wilson, Judge Rice did in R v Ellul and Judge Anderson did in R v Thaller and Gee.
I have considered the arguments of Mr Stretton on their merit. In my opinion there is nothing about section 67 of the Summary Offences Act, which excludes the application of section 19 of the Police Act to section 67. I find that the Commissioner was empowered to delegate his power to issue a general search warrant under section 67 to Mr McKenzie.
Mr Stretton criticised the decision of Judge Sulan on the basis that His Honour did not consider the criterion referred to by Gibbs C J in O’Reilly v The State Bank of Victoria (1982-83) 153 CLR 1 at page 11, namely :
“The answer to the question whether the statute requires the power to be exercised personally by the person designated depends upon the nature of the power and all the other circumstances of the case.”
He submitted the nature of the power required that it be exercised only by “the Commissioner”. The power to issue general search warrants is an important power. Such warrants exist nowhere but in South Australia. They empower the holder to exercise the extensive powers described in subsection 67(4). I acknowledge the force of the submissions but any weight that may otherwise attach to them is made irrelevant by the plain words of section 19 of the Police Act.

Section 19 enables the Commissioner to delegate “any of the powers or functions conferred on or assigned to, the Commissioner by or under ... any other Act”. In my opinion, both the power to issue a general search warrant and the selection of recipients of the warrants are “powers or functions” conferred on the Commissioner by the Summary Offences Act, and they are both capable of being the subject of delegation.
But for section 19 of the Police Act, I would accept that the Commissioner could not delegate the power to issue general search warrants to other persons. I accept that the nature of the power to issue general search warrants is such that it should be exercised only by the person in whom the statute reposes the power. However, section 19 makes express provision for the delegation of all of the Police Commissioner’s powers. That must include the power to issue a general search warrant. The Laws of Australia states (Volume 2, Part 2.4, Paragraph 145) that the presumption that a discretionary power is only to be exercised by the person named in the statute gives way if the language scope or purpose of the legislation shows otherwise. In my opinion, section 19 of the Police Act overrides any principal against delegation.
I accept Mr Stretton’s assertion that the nature of the general search warrants demands that care be exercised in the selection of the recipients and the issue of the warrants, but that does not preclude Parliament from authorising the Commissioner to delegate that power to others, which is what Parliament has done by section 19 of the Police Act.
The Issue of the General Search Warrants in December 2001
Mr McKenzie gave evidence of the way in which he executed the warrants which took effect from 1 January 2002. One evening in December he took home the file relating to the matter. It was proposed that about 550 general search warrants should be issued. Chief Superintendent K.J. Oakley, the Manager of the Human Resource Management Branch of the South Australian Police, had provided a memorandum to the Deputy Commissioner which became exhibit VDA8. The memorandum stated :
“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.”
Accordingly the two criteria for suitability were that the recipients were appropriate officers because of the duties they performed and they had a genuine need to possess a general search warrant.
Mr McKenzie had been provided by the Director of Public Prosecutions with a copy of the decision of Judge Anderson in R v Thaller and Gee (supra). After reading the decision, Mr McKenzie noted in hand on a copy of His Honours reasons the following :
“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 to an extract from General Orders in relation to search warrants which became exhibit VDC10. The General Orders note that :
“The Commissioner issues general search warrants under section 67 of the Summary Offences Act to :

l
Selected officers of police;

l
Officers in charge of stations;

l
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.”
While the General Orders are a guide they do not establish the criteria for the issue of general search warrants.
Mr McKenzie said that the purpose of making the notations on his copy of the reasons of Judge Anderson was to highlight the points that had been made in the case so that he might use them himself in determining whether or not a person was suitable to be issued with a search warrant and whether the person required a search warrant according to the duties that he might be required to perform.
It was argued that if any assessment was made of the suitability of Detective Andrew to hold a general search warrant, it was made by a Manager in the Human Resources Department of SAPOL, rather than the Deputy Commissioner. It was submitted that there was, on the face of the papers, no proper consideration of the fitness of the recipient by Deputy Commissioner McKenzie, who could form no view beyond the material that he had been provided with.
While he was Deputy Commissioner, Mr McKenzie was of the view that each Detective attached to the Drug and Organised Crime Branch would, by necessity, have to possess a general search warrant, because he or she could not perform the duties required of that position without a general search warrant.
When he issued the warrant to Detective Andrew in late 2001, the key pieces of information before Mr McKenzie were that the proposed recipient was Detective Andrew, his number, and the words “Drug and Organised Crime Investigation”. The information conveyed to him that he was attached to the Drug and Organised Crime Investigation Branch, he was a designated Detective and was of Senior Constable rank, he had undergone the screening and training and selection processes to obtain the designation of Detective and he had also undergone a separate and particular selection process to be attached to the Drug and Organised Crime Investigation Branch.
Mr McKenzie said that being designated a Detective met the initial criterion. If a Detective was subject to disciplinary process or on maternity leave, that would be a reason for not issuing the Detective with a general search warrant. He said that in the case of Detectives, the issue of a warrant was easier than in other cases, because Detectives have been through a number of testing processes in their own right to become designated. In the case of a Detective whom Mr McKenzie had never heard of, he would also need to know the posting and the nature of the work that a person at that posting would be required to perform.
Mr McKenzie handled the batch of 550 applications in about five hours, that is, at the rate of about two a minute.
General search warrants can be issued to such members of the Police Force as the Commissioner thinks fit. The Crown accepted that fitness involved a consideration of whether the proposed recipient was a fit person together with a consideration of the need for that person to be issued with a warrant.
The applicant argued that the general search warrant was not validly issued because of the nature of the consideration that the Deputy Commissioner gave to the issue of the warrant. Counsel argued that the Commissioner is required to make an assessment of the fitness of the individual.
Mr Stretton argued that the record shows that the assessment as to the suitability of Detective Andrew to hold a general search warrant, if it was considered at all, was considered by a Manager in the Human Resources Department, rather than the Deputy Commissioner. It was argued that the material before the Deputy Commissioner did not address the relevant issues and accordingly, the Deputy Commissioner could not form a view which extended beyond the material that he had been provided with. It was for that reason that it was argued that the real decision had been made by a Human Resources Manager.
I do not accept that submission. The evidence shows that while Mr McKenzie referred to the information from the Human Resources Department, the ultimate decision was his. He gave evidence as to his reasons for issuing a general search warrant to Detective Andrew.
While Mr McKenzie had no knowledge of Detective Andrew the criteria which were applied were that Detective Andrew was a designated Detective who was assigned to Avatar. Mr Stretton submitted that there is no evidence that Detective Andrew satisfied the criterion for fitness. He complained that there was no assessment of his individual fitness and that there was no evidence that a capacity to investigate satisfies the requirement of individual fitness. He argued that there can be no presumption of fitness simply because a person is a Detective.
The Crown submitted that it was unreasonable to expect the issuer of the general search warrants to need to know each person. It was said there must be a degree of practicality about the requirement. The Crown submission was :
“The bottom line is the issuer did not know the recipient personally. He knew he was a designated Detective, he knew what it meant to have got to that spot, he knew the area in which he worked, the type of work those Detectives were required to do, he described them as the upper echelon of the Detectives and he said “people who are doing that work as designated Detectives, in my experience of some 40 years in this force, 20 years as managing these people and have worked in this area, I consider that they have a need, and if someone is doing that work, having been selected for that and have not come across my desk with black marks on them, by that they are fit and proper people to get it.”
I accept that those matters were sufficient to justify the issue of a general search warrant.
I find that it was not necessary for the issuer to personally know the recipient.
The applicant carries the onus. He must show that there was an improper exercise of the power. The question becomes whether the nature of the general search warrant means that the Deputy Commissioner needed to know more about the proposed recipient than he knew about Detective Andrew and whether it was an improper exercise of power to think a person fit to hold a general search warrant simply because the person was a Detective attached to a particular squad.
An abuse of power will exist where the issuer has taken an irrelevant consideration into account or has failed to take a relevant consideration into account. Halsbury’s Laws of Australia paragraph 10-2162. Section 67 does not prescribe what criteria the Commissioner must take into account before he can determine that a police officer is a fit person. Halsbury says :
“Where relevant considerations are not specified in the statute, it is largely for the decision maker, in the light of the matter placed before him or her by the parties, to determine which matters he or she regards as relevant and their comparative importance.” Halsbury ibid paragraph 10-2174(18).
There is no evidence, which suggests that Detective Andrew was not an appropriate recipient. The applicant’s case was that Detective Andrew was not properly vetted.
Halsbury says in paragraph 10-2195(25) :
“In the case of a broad discretionary power it is clear, almost without exception, that corrupt or entirely personal and whimsical considerations, unconnected with proper governmental administration, are irrelevant considerations.”
Also, at paragraph 10-2201(27) Halsbury says :
“The requirement that the court not intrude into the merits of administrative decision making means that it is generally for the decision maker and not the court to determine the appropriate weight to be given to relevant considerations which are to be taken into account in exercising a statutory power.”
The Act gives the Commissioner a broad discretion. I understand the effect of Mr Stretton’s submission, but if the Commissioner (or his delegate) wished to take the view that the mere fact that a person was a Detective made that person a fit person to hold a general search warrant and that being attached to a particular squad could establish the need, that would appear to be within the discretion created by section 67(1).
I reject the submission that the decision to grant a general search warrant to Detective Andrew can be attacked on the ground of Wednesbury unreasonableness, that is on the ground that the exercise of the statutory power was so unreasonable that no reasonable person could have so exercised the power. Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. Halsbury’s Laws of Australia paragraph 10-2246(42).
In my opinion the requirements of section 67 of the Summary Offences Act are satisfied if the Commissioner or his delegate believe it is sufficient if the proposed recipient is designated as a Detective and is engaged in duties which may require the use of a search warrant.
Mr Stretton argued that the Crown had made a jurisdictional error. Halsbury says :
“... A Tribunal makes a jurisdictional error if it makes an error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.” Halsbury’s Laws of Australia paragraph 10-228.
I do not accept that any of those criteria have been made out in this case.
The Face of the Warrant
Mr Stretton argued that, the warrant needed to disclose on its fact the fitness of the recipient. He quite fairly acknowledged that there is authority to the effect that where the form of a warrant is prescribed by legislation, there is a presumption of regularity if the warrant is in the form in the schedule. This is such a case. The warrant does follow the form in the schedule.
I find that section 67(2) which requires the use of the form in the schedule, precludes any requirement to disclose the fitness of the recipient on the face of the warrant.
The Date of the Warrant
Next Mr Stretton argued that the warrant was void because it was not signed and dated on the date on which it purported to be signed and dated. That argument relied upon section 67(3) of the Act, which counsel submitted must be read against the historical background of the Act.
The reason why the warrants were issued ahead of their operative date was because Mr McKenzie knew of occasions when the new warrant did not reach the recipient until after the old warrant had expired. He liked to have a buffer. He saw the issue of the warrant on the days that they purported to be issued, that is, the date on the warrant as being fraught with danger.
The general search warrant is in the form in the Schedule to the SummaryOffences Act. The word “six” has been typed in the form to denote the number of months during which the warrant would remain in force “from the below date”, and the words “1st ... January ... 2002” have been typed in the appropriate space after the word “Dated”. The “below date” was 1 January 2002.
The evidence of Mr McKenzie is that he signed all the forms on a date in December, which he estimated to be between the 7^th and 18^th. His diary did not permit him to be more precise. All the forms showed that they were dated 1 January 2002.
Subsections 67(2) and (3) of the Summary Offences Act provide :
“(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.”
Subsection 67(2) does not say that the warrant will remain in force for six months from the day on which it was signed.
I am unable to read into the section the interpretation for which Mr Stretton contends. There is no requirement in the subsection that the warrant should bear the date upon which it is signed.
Mr Stretton contended that the Summary Offences Act did not permit the issue of a general search warrant prospectively. He said that if warrants could be issued prospectively that would defeat the time limitation in subsection 67(3). He said that would not be the intention of Parliament and that any other interpretation would dilute the protection of the public enshrined in subsection 67(3). If warrants could be issued prospectively, the Commissioner could in say, January of a year, sign a warrant and date it 1 July. Would that warrant have a life of six months from the date shown on the warrant?
The Crown argued that the date of the warrant is not the date on which the document is signed but the commencement date. It was said that to sign a warrant 10 to 14 days prior to its commencement was not unreasonable.
I am not aware of any authority to the effect that a document is invalid simply because it bears a date which is different from the date of execution. There is, however, authority that incorrectly dated documents are valid. The question is whether the operative date of the warrant is that shown on the document or the actual date of execution.
A deed or other writing must be taken to speak from the time of execution, and not from the date apparent on the face of the deed: that date is prima facie taken as the true time of the execution. See Halsbury’s Laws of Australia, Volume 10, paragraph 140-180, footnote 3, referring to Browne v Burton (1847) 17 LJQB 49. In that case Attison J said at page 50 :
“Now, the rule uniformly acted upon from the time of Clayton’s case to the present day is, that a deed or other writing must be taken to speak from the time of the execution, and not from the date apparent on the face of it. That date is indeed to be taken prima facie as the true time of execution; but as soon as the contrary appears, the apparent date is to be utterly disregarded.”
The date of the warrant is important because subsection 67(3) provides that a warrant remains in force for six months from the date of the warrant. The last sentence in the form of the warrant state, “This warrant remains in force for ... months from the below date”. The form in the Schedule to the Act makes provision for the date.
I accept the argument of the Crown that “the below date” is the date which is inserted in the warrant as the commencement date. The form does not state the date which is inserted is the date of signature. There is no requirement that the date which is inserted must be the date on which the warrant was signed.
A date on the face of the warrant is necessary for the purpose of identifying the commencement of the life of the warrant. From a practical point of view it would be difficult to sign the warrants on their commencement date and have them delivered to all the recipients, but that difficulty is not something which I should take into account in interpreting the statute.
I have considered Mr Stretton’s argument that the Police Offences Act does not authorise prospective warrants. I can see how an abuse could occur if the warrants were dated a significant time ahead of their execution. That abuse does not arise in the present case. If a warrant did specify a commencement date which was an unreasonable time into the future, that could lead to the setting aside of the warrant on administrative law grounds; but that is not the present case. No harm has been demonstrated to arise by reason of the fact that the warrant in question was signed prior to the date it bore.
Mr Stretton argued that the warrant expired six months from the date when it was signed. In that event, the warrant could have expired by the effluxion of the six month period at the time that it was used by Detective Andrew to obtain access to the premises of the accused on 19 June 2002. If the warrant was signed on 15 December 2001 the warrant would have expired on 15 June 2002. That was the fourth argument which Mr Stretton foreshadowed but did not identify in his opening.
I reject that argument. I find that the relevant date for the purpose of calculating the life of the warrant is the shown on the warrant (“the below date”) namely 1 January 2002 and not the date on which the signature was placed upon the warrant. Subsection 67(4) says that the warrant will remain in force for six months from the date of the warrant, not six months from the date of signature.

The form in the schedule has the statutory sanction of subsection 67(2).
I find that the warrant was not invalid because it was dated on a day different from the day on which it was signed.
Judge Anderson came to a similar conclusion in R v Thaller & Gee (2003) SADC 14, paragraph 14 at paragraph 31.
The “Execution” of the Warrant
Next it was argued that even if it was a genuine warrant, it was not validly executed by the officers concerned.
Mr Stretton argued that no-one purported to execute the warrant at the time when Senior Constable Robinson climbed the fence to gain access to the carport and allowed the other police officers to enter. He said that it was only subsequently that Detective Andrew purported to exercise the general search warrant to gain entrance to the shed. Accordingly, he submitted that the initial entry was a trespass and that the search was an illegal search.
Because the premises were surrounded by a substantial fence, it was said that there could have been no implied consent to the police obtaining access. The implied consent that tradesmen and others have to enter upon premises was said to be vitiated by the locked gate.
Mr Stretton submitted that none of the officers purported to execute the warrant at the time that Senior Constable Robinson gained access. He said it was only after that had happened that Detective Andrew purported to execute the general search warrant to gain entrance to the shed and discover the cannabis. He said the crucial point was that Detective Andrew had not exercised the general search warrant up until they had already broken into the premises. Accordingly, the initial entry was a trespass.
A subsidiary argument was that the search was effectively carried out by Senior Constable Robinson. Mr Stretton argued that it was not really a search by Detective Andrew assisted by Senior Constable Robinson.
The powers conferred on the holder of a general search warrant are exercisable when the holder has “reasonable cause to suspect” one of the matters listed in sub-paragraphs (a) to (d) of section 67(1). There was a challenge as to whether Detective Andrew had the necessary belief to enliven the powers conferred by the warrant. It was argued that the information passed on by Senior Constable Robinson to Detective Andrew did not create reasonable cause to suspect any relevant matters. Detective Andrew gave evidence that he had been informed by Senior Constable Robinson that the accused was dealing in amphetamine drugs from Rundle Street and may have a cannabis crop at Pelsart Avenue. Detective Andrew was also aware of the AGL electricity usage information. I have no reason to disbelieve that evidence. Accordingly, I find that the powers in the warrant had been enlivened.
It was submitted that the information given to Detective Andrew was not sufficient because the information related to drug dealing in the City of Adelaide (not Fairview Park) and was based on the suggestion that someone was trading in amphetamines (not cannabis). Mr Stretton submitted that the documentation showed that the police officers did not at the relevant time, have a belief in respect of the cannabis but only claimed to have had such a belief later.
I do not accept that. I find exhibit VDC20, the electricity consumption history, was together with the other information, sufficient to give Detective Andrew, reasonable cause to suspect matters which fell within subsection (a), subsection (c) or subsection (d) of the general search warrant. This belief related to both cannabis and amphetamines.
Exhibit VDA14, the statistical return on the use of general a search warrant, indicated that Detective Andrew believed he had reasonable cause to suspect matters which fell within those paragraphs. The return stated in the paragraph dealing with “results” that the evidence obtained was :
“Info received that cannabis crop growing at above prems, also info that person may be dealing in powder drugs.”
What was written in the form was more relevant to the information that had caused Detective Andrew’s suspicion, rather than a description of the evidence obtained by the use of the warrant. Mr Stretton argued that the emphasis in the return on cannabis was inconsistent with the information that had been passed to Detective Andrew by Senior Constable Robinson.
It is true that the statements do not line up mutatis mutandis. However, I do not think the discrepancy is a reason to believe that Detective Andrew had not received the information which he claims to have received from Senior Constable Robinson or that he did not have the belief which he asserted at the time that he was travelling to the Pelsart Avenue premises, and the time when the search was carried out.
Mr Stretton complained about the way in which the powers were used. He said that the evidence showed that the initial entry into the premises was not in the exercise of any power or search but was for “safety” reasons.
Detective Andrew directed Senior Constable Robinson to jump over the side fence and open up the roller door. He said he did that because they could not raise anyone after several attempts and phone calls were not successful. He said “I adverted to operational safety issues as well – a lot of the time people won’t answer the door, there could have been someone in the yard, inside the house, there could have been a number of people there which we might not have seen, so immediately I adverted my mind to the safety issues and wanted to get that checked. Specifically Detective Andrew was asked :
"QAt the time of directing Robinson to go over the fence, did you have any intention or otherwise in relation to the question of searching the premises.
AI still – my mind was still adverted to searching the premises at sometime after that on that date.”
I find that once the powers in the warrant had been enlivened, Detective Andrew was authorised to “break open the house, building, premises or place ...” with such assistants as he thought necessary.
I find that Detective Andrew did have reasonable cause to suspect a relevant matter. I find that the climbing of the fence and opening of the roller door was authorised by the warrant. I also find that the entry into the house via the roof and ceiling by Senior Constable Robinson was an act by an assistant of Detective Andrew which was authorised by the warrant.
To the extent that some of the actions may have been taken for the “safety reasons”, I find that those actions were carried out in the course of exercising the powers conferred by the warrant.
I reject the submission that the initial entry occurred before there was any purported exercise of the right to search.
Mr Stretton submitted that the holder of the warrant had to consciously form the necessary belief and then consciously execute a search power as a result of the belief. He said the officers did not do that until after they had broken into the premises. I do not accept that submission. Detective Andrew said that he had the intention to search the premises as he was driving to them.
I find that before he arrived at the premises, Detective Andrew had reasonable cause to suspect that an offence had been committed at the premises, or was about to be committed, that there may be things which may afford evidence as to the commission of an offence and that there may be things intended to be used for the purpose of committing an offence. His belief was based upon the information provided by Senior Constable Robinson.
I find that belief was sufficient basis for Detective Andrew to enter the premises, without the owners permission, in the exercise of the power conferred by the general search warrant. The warrant conferred a power to enter the premises with such assistants as Detective Andrew thought necessary.
The submissions were based on an assumption that the warrant had to be “executed” at a particular point in time. In my opinion that is not a requirement of section 67. In my opinion, once the holder of the warrant has reasonable cause to suspect one of the matters specified in subparagraphs (a) to (d), the warrant is enlivened and the holder is empowered to do those things which fall within the powers conferred upon him by the warrant.
Detective Andrew had reasonable cause to suspect the relevant matters as he drove to the premises. In my opinion that was sufficient to enliven the powers in the warrant and justify the entry into the premises and the resulting search.
The facts of this case are similar to R v Long & Ors (2002) 221 LSJS 316. Judge Lee, at first instance, (2002) SASC 426 Court of Criminal Appeal (Doyle C J, Lander & Bleby J).
Even if it was unlawful for Senior Constable Robinson to gain entry to the premises in the way in which he did, I would have exercised my discretion in such a way as to decline to exclude the evidence. Detective Andrew did hold a general search warrant. He did attempt to contact the occupier of the premises. The course of action adopted was not unreasonable in the circumstances which existed. The conduct which is complained of, does not effect the cogency of the evidence which was obtained. That evidence established serious criminal conduct. If there was any unauthorised conduct on the part of Senior Constable Robinson in gaining access to the premises, that conduct was of a relatively minor nature. The warrant could have authorised everything that was done. The real effect of the applicant’s complaint is that Detective Andrew had not consciously decided to “execute” the warrant when he told Senior Constable Robinson to climb over the fence. If that criticism is correct, it is of a relatively minor nature. Additionally, it is not supported by Detective Andrew’s evidence which I accept.
On my findings, Detective Andrew held a warrant which, if invoked, authorised what was done. The need for the holder of a warrant to understand the precise justification for actions pursuant to the warrant was discussed by Cox J in R v Romeo (1982) 30 SASR 243 at 277. His Honour said that he did not think that in principle the acts of police officers would be invalidated merely because they had a wrong view about the proper source of their legal authority.
I therefore reject the application to exclude the evidence on the basis that the warrant was not validly executed.

[2003] SADC 145

24 September 2003