R v Mitchell
[2020] SASC 147
•11 August 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v MITCHELL & ORS
[2020] SASC 147
Reasons for Ruling of the Honourable Justice Lovell
11 August 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
The accused, Alfred Rigney, is charged with two counts of murder pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). He is charged on a joint information with four co-accused.
Application to exclude evidence obtained from search - whether police had reasonable cause to suspect - lawfulness of search - Bunning v Cross discretion
Held:
1. The application is dismissed.
Summary Offences Act 1953 (SA) ss 67, 75, referred to.
Bunning v Cross (1978) 141 CLR 54; George v Rockett (1990) 170 CLR 104; Hussein v Chong Fook Kam [1970] AC 942; Kadir v The Queen (2020) 375 ALR 80; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Frantzis and Batas (1996) 186 LSJS 301; R v Golja [2017] SASCFC 61; R v Nguyen (2013) 117 SASR 432; R v Rockford (2015) 122 SASR 391; R v Rogers (2011) 109 SASR 307; R v Swaffield (1998) 192 CLR 159, considered.
R v MITCHELL & ORS
[2020] SASC 147Criminal: Application for exclusion of evidence
LOVELL J:
Overview
Alfred Rigney (‘Rigney’) is charged, along with four others, with the murder of Urim Gjabri (‘the deceased’) at Para Vista, South Australia (‘the Para Vista murder’).[1] The murder allegedly occurred during a “drug rip”.[2] Rigney and his co-accused have pleaded not guilty to the charges and the trial is set for September 2020.
[1] Pursuant to ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA).
[2] A drug rip is a home invasion at premises where drug crops are being grown.
By a rule 49(1)[3] application filed on 17 April 2020, Rigney seeks an order excluding from evidence items seized during a police search of 54 Ryan Street, Moonta (‘the Moonta address’). A black iPhone belonging to the deceased, found in a backpack during the search, is an important item of evidence on the prosecution case. Rigney contends that the police search, conducted under the authority of a General Search Warrant (‘GSW’), was unlawful as the officer holding the GSW, Detective Brevet Sergeant Loren Franz (‘Franz’), did not have “reasonable cause to suspect” as required by s 67 of the Summary Offences Act 1953 (SA) (‘the Summary Offences Act’).
[3] Supreme Court Criminal Rules 2014 (SA).
Background
The police attended the Moonta address on 26 October 2018 for two purposes: to arrest Rigney pursuant to a Parole Board Warrant and also to conduct a search of the premises pursuant to the GSW.
There were six people present at the Moonta address: Rigney, Stacey Karpany (‘Karpany’), Tamia Sansbury, Felicity Sansbury, Kym Sansbury and Tyler Mastrosavas.
During the search, the police seized a number of items:[4]
[4] Ex VDD8.
·two mobile phones located on Karpany;
·black bag containing personal items;
·camouflage bum bag;
·black knife in cover;
·left hand glove;
·right hand glove;
·red handled screwdriver;
·yellow handled screwdriver;
·large yellow handled screwdriver;
·backpack located in the north-east bedroom; and
·garbage bag containing personal clothing and items.
The “black bag containing personal items” belonged to Karpany. An iPhone, located in that bag, is alleged to have belonged to the deceased. The iPhone is an important piece of evidence on the prosecution case.
On 26 October 2018, Rigney was arrested pursuant to a Parole Board Warrant.
On 7 November 2018, police conducted a second search of the Moonta address, as well as a search of a vehicle located at the premises. It is the search on 26 October 2018 that Rigney contends is unlawful.
Legal principles
Section 67(4) of the Summary Offences Act:
67—General search warrants
…
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer 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;
(Emphasis added)
The question of what amounts to reasonable cause to suspect (or a “reasonable suspicion”) has been discussed in a number of cases. From an analysis of the cases the following propositions emerge:
1.suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. Suspicion arises at or near the starting-point of an investigation.[5]
2.a suspicion that something exists is more than mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence.[6]
3.there must be a rational connection between the supporting material and the suspicion.[7]
4.suspicion and belief are different states of mind. Suspicion is a lesser state of mind than a belief. Facts which can reasonably ground a suspicion may be quite insufficient to ground a belief.[8]
5.whether a reasonable suspicion attaches to certain conduct or circumstances is a factual question. The use of the expression “reasonable cause” imports an element of objectivity into the assessment. The test of reasonableness is to be judged by the court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held.[9]
6.reasonableness attaches to the suspicion and requires consideration of the circumstances as known by the officer. The suspicion must be genuinely held by the officer.[10]
7.a suspicion founded on information subsequently discovered to be wrong does not negative the existence of the suspicion or its reasonableness. A suspicion does not have to be well founded or factually correct to be reasonable.[11] Suspicion may be founded on evidence or statements which are inadmissible at trial.[12] However the requirement of reasonableness may require the officer to assess the reliability of the information that has been communicated.[13]
8.the requisite degree of suspicion must exist at the time of the search.
9.the force that can lawfully be used to enter, search and seize is that which could be reasonably considered to be necessary.[14]
[5] Hussein v Chong Fook Kam [1970] AC 942 at 948 per Lord Devlin.
[6] George v Rockett (1990) 170 CLR 104 at 115–116; R v Rogers (2011) 109 SASR 307 at 311 [21] per Duggan J; R v Nguyen (2013) 117 SASR 432 at 437 [21].
[7] R v Nguyen (2013) 117 SASR 432 at 437 [21].
[8] George v Rockett (1990) 170 CLR 104 at 115–116.
[9] R v Rogers (2011) 109 SASR 307 at 312 [21] per Duggan J.
[10] R v Rogers (2011) 109 SASR 307 at 312 [21] per Duggan J.
[11] R v Golja [2017] SASCFC 61 at 6 [27] per Stanley J.
[12] Hussein v Chong Fook Kam [1970] AC 942 at 949 per Lord Devlin.
[13] R v Rogers (2011) 109 SASR 307 at 312 [22] per Duggan J.
[14] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 297 per Doyle CJ.
Franz, the officer who held the GSW, gave evidence that he relied on the power contained in s 67(1)(iii) of the Summary Offences Act when searching the premises. He outlined the information he relied upon when forming his suspicion.
Evidence
Franz gave evidence at the voir dire hearing. In addition to his evidence, the following documents were tendered:
·Exhibit VDP4 - chain of emails, final date being 7 November 2018;
·Exhibit VDP5 - bundle of documents relating to information leading to exercise of general search warrant;
·Exhibit VDP6 – Shield Intelligence Report printed 27 May 2020 in redacted form;
·Exhibit VDP7 - Shield Intelligence Report printed 27 May 2020 at 15:33;
·Exhibit VDD8 - Affidavit of Brevet Sergeant Franz dated 3 December 2018;
·Exhibit VDD9 - Addendum Affidavit of Brevet Sergeant Franz dated 19 May 2020;
·Exhibit VDD10 – Shield Intelligence Report printed 27 May 2020 at 15:38;
·Exhibit VDD11 - email of Christine Mitchell to Detective Franz dated 18 May 2020;
·Exhibit VDD12 - Affidavit of Jasmine McDonald sworn on 20 May 2020 annexing email shown to Detective Franz; and
·Exhibit VDP13 - Affidavit of Patrick McManus dated 1 June 2020.
Confusion regarding searches
Franz initially stated in evidence that there was only one search and it was conducted on 26 October 2018. Under cross-examination and, after reviewing his notes, Franz accepted that he was mistaken and there had indeed been two separate searches of the Moonta address. He conducted the second search on 7 November 2018. Franz stated that he had melded the two searches into one.
What information did Detective Brevet Sergeant Franz have at the time of the search?
Franz gave evidence that the police attended the Moonta address on 26 October 2018 for two purposes: first, to arrest Rigney pursuant to a Parole Board Warrant and secondly, to conduct a search of the premises. Franz stated that he was tasked to conduct the search. He did not attend the Moonta address that day to arrest Rigney in relation to the Para Vista murder; he said he did not have sufficient information at that time to have a reasonable cause to suspect Rigney had committed the Para Vista murder.
Franz stated that he believed he had sufficient information to justify his search of the Moonta address.
As mentioned, Franz initially thought that he had conducted one search of the property on 26 October 2018. It was only when Franz was cross-examined by Mr Henchliffe QC for Rigney that it became apparent that he had conducted a second search at the premises on 7 November 2018. At the time of this second search, Mr Rigney was in custody having been arrested on 26 October 2018. Nothing of relevance to this matter was located during the second search. Franz, however, was confused about what information he possessed before conducting the search on 26 October 2018. During cross-examination, Franz conceded that some information he thought he possessed prior to the first search he did not discover until after 26 October 2018. His evidence about what information he possessed to support his “reasonable cause to suspect” changed during cross‑examination.
Franz also gave evidence about a document referred in the evidence as a PD23A. This document is created by the GSW holder and outlines the grounds for use of the GSW. It contains two parts: one section outlines the warrant holder’s suspicions which don’t have a claim of privilege attached, and the other section outlines suspicions which may be the subject of privilege. The document is submitted to a superior as a means of ensuring appropriate use of the GSW. It is usually returned to the warrant holder and retained following an administrative review of it by the superior.
Franz admitted that he could not find a PD23A for either of the searches. He recalled submitting a PD23A for the search on 7 November and his affidavit of 19 May 2020[15] supports this. Franz admitted that there is a possibility he didn’t submit a PD23A for the search on 26 October as there is no note of him doing so and no related location search report. I accept Franz’s evidence about the PD23A namely, that he did submit one for the second search which cannot now be located. I am unable to find that he submitted a PD23A for the first search. However, I reject the submission that Franz did not submit a PD23A for the search on 26 October as he knew he did not have enough information to support a reasonable suspicion that a search of the Moonta address would afford evidence as to the commission of an offence. Franz denied that suggestion and said that the reason for failing to submit a PD23A was likely just a tardiness in paperwork. I accept his explanation.
[15] Ex VDD9.
The prosecution bears the onus of proving that the search on 26 October 2018 was lawful. They must establish, on balance, that Franz genuinely held a suspicion and that, on the material that he possessed at the time he decided to search, his suspicion was reasonably held.
I do not stop to analyse Franz’s evidence in detail. I take into account Mr Henchliffe’s submissions about the approach I should take in my assessment of Franz’s evidence. However, I reject the submission that Franz deliberately conflated the two searches (and the information he had) as he knew he did not have enough information to found a reasonable suspicion before searching on 26 October 2018.
Mr Henchliffe also submitted that, in the alternative, I should find Franz’s evidence, due to the mistakes he made, to be unreliable to the extent that the prosecution failed to prove the legality of the search.
I find that Franz was an honest witness. However, he was clearly mistaken about the number of searches conducted at the Moonta address. After checking his running sheets, Franz accepted that his earlier evidence was, in parts, incorrect. He accepted that he had more limited information than he initially stated before forming his suspicion on 26 October 2018. While I consider that Franz was not attempting to mislead me, I agree that his evidence needs to be scrutinised in light of the mistakes he made in his evidence.
I am prepared to accept Franz’s evidence as reliable as set out below.
I accept that Franz had in his possession, and relied upon when deciding and commencing to search, the information contained in Exhibits VDP6 and VDP7. Indeed, there was little to no dispute that he had these documents. Prior to the search, Franz searched, or had other officers search on his behalf, the police records to ascertain Rigney and Karpany’s criminal history.
Under cross-examination Franz stated:
… I have a clear memory of calling for Mr Rigney's antecedents for serious criminal trespasses as well the conspiracy apprehension report in Murray Bridge. The third officer, Josh Noble, on the list in relation to Alfred Rigney, he essentially wanted to coordinate the job for an application for a sergeant so he and I were working quite closely in the lead-up to the search on the 26th. So that's how I would have been aware of those apprehension reports.
Franz stated that he had an independent memory of looking at apprehension reports but that he could not remember precisely which apprehension reports he examined. He later stated:
… I remember getting a fair indication that Mr Rigney had a number of antecedents for doing serious criminal trespasses in the company of other people and also the conspiracy to do a drug rip some years prior.
He accepted that the serious criminal trespass matters, whilst in company with others, did not relate to stealing cannabis.
Franz also gave evidence that he spoke to a detective at Major Crime in the days leading up to the 26 October search. In light of Exhibit VDP13, I infer that the detective to whom Franz had spoken was Detective Senior Sergeant Patrick McManus (‘McManus’). Exhibit VDP13 is an affidavit of McManus outlining that he had numerous phone conversations with Franz between 23 October 2018 and 25 October 2018.[16] His notes, annexed to the affidavit, support this.
[16] Ex VDP13.
I have regard to the affidavit of McManus where it supports the conversation with Franz. I disregard McManus’s recollection of the conversation as it is Franz’s memory which is relevant. Franz said the information provided was that Rigney was a suspect in relation to the Para Vista murder and drug rip, that there was a Parole Board Warrant in relation to him and that he was residing at a particular address. He stated that Major Crime did not go into details as to what evidence they had in relation to his involvement. The conversation with McManus, while it may have led Franz to be more confident in his suspicion, objectively added nothing.
I accept the evidence of Franz as set out above. I accept that this was the information on which he relied when forming his suspicion.
Was the suspicion reasonably held?
To execute the search warrant Franz was required, before searching the house, to have reasonable cause to suspect there was “anything that may afford evidence as to the commission of an offence”. When assessing whether the suspicion held by Franz was reasonable, I must take into account the information possessed by Franz about Rigney’s involvement. I must also have regard to the fact that the search was to be conducted at a house that was not Rigney’s usual place of residence and that the drug rip and murder had been committed 17 days before the search.
Exhibits VDP6 and VDP7 are two Shield Intelligence Reports obtained through the police computer system on 21 October 2018 and 22 October 2018 respectively. As their name suggests, the reports are a summary of intelligence received by a police officer, checked by the intelligence section of the police department, and then placed on the computer systems so that the intelligence can be shared amongst other members of the police force. They often, but not always, refer to intelligence from informants who wish to keep their identity confidential.
Both reports contained redactions. The redactions in Exhibit VDP6 related to confidential information. The redacted information in Exhibit VDP7 was subject to a claim of public interest immunity privilege made by the Commissioner of Police. A closed affidavit was produced and I upheld the claim of privilege. While Franz had access to the redacted information, I cannot use the privileged information in my evaluation of the objective reasonableness of Franz’s suspicion. My determination as to the objective reasonableness of his suspicion must be made on the disclosed information only.
The source of the information contained in Exhibit VDP6 was evaluated as “mostly reliable” and “known personally to the source but not to police”.
The information provided related to Rigney’s possible address and his possible involvement with certain vehicles. It states that Rigney was in company with Karpany and that he had been driving two different vehicles in the previous two days: a blue Holden Captiva and a red Ford. It also indicates that Rigney is a high priority parole offender and has an active Parole Board Warrant. Further it states he is a “person of interest” in relation to a home invasion in Para Vista. The report contains information about Karpany as well. It records that Karpany was bailed to the address of 13 Stanley Way, Gilles Plains. Further, a street check conducted on 19 September 2018 revealed Rigney in the driveway at that address with two other people.
Exhibit VDP6 contains only limited information about Rigney. It could not alone be a basis for a “reasonable suspicion”. The only relevant information, and it is slight, is that Rigney was a person of interest in relation to the home invasion on 9 October 2018 and that prior to that date, namely 19 September 2018, Rigney was seen at 13 Stanley Way, Gilles Plains.
The Shield Intelligence Report, Exhibit VDP7, is an important document. The source of the information contained in Exhibit VDP7 was evaluated as an “untested source”. The “intelligence evaluation” states “known personally to the source but not to police”.
The report states that Rigney was “responsible for the recent drug rip where someone was killed”. It states that Rigney attended 13 Stanley Way, Gilles Plains after the rip in a red XR6 Ford. Karpany also attended but was in a silver or white Holden Captiva. It states that “dope” was loaded from the Ford into the Captiva.
The “Assessment” section notes that Rigney is currently wanted in relation to a Parole Board Warrant and that he is a person of interest in relation to the drug rip. It also notes that Karpany is listed as an associate of Rigney. The report states the information has been verbally disseminated to Sergeant McManus at Major Crime.
The Shield Intelligence Report contains more than a bare assertion. It contains details of acts of Rigney and Karpany upon their arrival at 13 Stanley Way, Gilles Plains, the address mentioned in Exhibit VDP6. The fact that the informant is regarded as “untested” does not mean the information should be disregarded. Untested could simply mean, and probably does mean, that this is the first occasion that the source has provided information. There is no suggestion that the source is necessarily unreliable. However, I accept that the information has less weight than had it come from a previously known and reliable source. I also acknowledge that the information provided about the make of cars is, as discovered later, inaccurate. However, Franz had no ability to test that at the time. While the informant may not be prepared to give evidence at trial, the information contained in Exhibit VDP7 is of itself sufficient to raise a reasonable suspicion Rigney and Karpany were involved in the “drug rip” and also, the murder.
However, Franz had other information relating to Rigney’s prior criminal record. This included previous allegations of serious criminal trespass in company and having been arrested in 2002 for conspiracy to commit an aggravated serious criminal trespass to steal cannabis plants. Franz was unable to recall which apprehension reports he looked at relating to Rigney before he executed the search warrant. Franz’s evidence on this topic was somewhat vague. I accept his evidence but cannot find that it went any further than what he said in evidence, namely:
… I remember getting a fair indication that Mr Rigney had a number of antecedents for doing serious criminal trespasses in the company of other people and also the conspiracy to do a drug rip some years prior.
I must deal with one further submission made by Mr Henchliffe. He submitted:
The power of arrest, s.75 of the Summary Offences Act, only requires that a police officer - they may apprehend any person whom the officer has reasonable cause to suspect of having committed an offence. Virtually the same words; that is reasonable cause to suspect of having committed an offence.
If the officer does not have reasonable cause to suspect Mr Rigney has committed an offence, I ask rhetorically how does he have reasonable cause to suspect that he has evidence of the commission of the offence which he doesn't think this man has committed? The two aren't the same but they are very closely related.
I cannot accept such a broadly expressed submission. While there is similarity in the language used in both s 75 and s 67[17] of the Summary Offences Act, there is a significant and qualitative difference between the power to arrest and the power to search. The power to search is an investigative tool whereas the power to arrest is the preliminary step to the person being charged. Self-evidently they are significantly different steps in the process. The power to search enables a police officer to investigate the possibility that an offence might have occurred or that the person under investigation might have participated in the offending. The purpose of s 67 is different to that embodied in s 75. To draw too close an analogy between the power to search and the power to arrest, and therefore in some manner restrict the power to search, would unduly hamper the ability of the police to properly investigate alleged offending.[18]
[17] See also Summary Offences Act 1953 (SA) s 68.
[18] R v Frantzis and Batas (1996) 186 LSJS 301 at 25 per Lander J.
Discussion
The requirement of a reasonable suspicion entails satisfaction both that Franz held the suspicion at the time he decided to carry out the search and that the suspicion was objectively reasonable given the facts and circumstances known to him.
I accept that the information possessed by Franz has to be assessed in the context of the search being of premises not usually occupied by Rigney and 17 days after the drug rip and murder occurred. Allowing for those facts, in my opinion the information contained in Exhibit VDP7 alone was sufficient for Franz to execute his search warrant. While the source was “untested”, the information contained sufficient detail for Franz to form a reasonable suspicion.
Franz did have other information. Rigney’s previous criminal record, even if some of the convictions were old (and indeed some of the matters did not proceed), are relevant and assisted in forming the opinion and also on the question of whether it was reasonably held. The information found in Exhibit VDP6, namely Rigney being in company with Karpany some weeks before the offences being seen at the Gilles Plains address has some relevance in light of the information contained in Exhibit VDP7.
In my view, the information contained in Exhibit VDP7 taken in isolation was sufficient for Franz to execute his GSW on 26 October 2018. That suspicion was strengthened by the information relating to Rigney’s antecedent police history.
Taking into account all of the information possessed by Franz, as set out above, I find that he had a genuine suspicion, reasonably held, that a search of the premises at the Moonta address may afford evidence as to the commission of the offence.
I find that the search was lawful.
I turn to consider the question, if I am wrong in my assessment of the lawfulness of the search, of whether I should exclude the evidence when exercising the Bunning v Cross discretion.
The Bunning v Cross discretion
Bunning v Cross[19] confers on the court a discretion to exclude admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally.
[19] (1978) 141 CLR 54.
The exercise of the discretion involves balancing competing interests. There is the consideration of “high public policy” involving the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of the criminal justice system to be weighed against the need to bring criminals to justice.[20]
[20] Kadir v The Queen (2020) 375 ALR 80.
The factors involved in the exercise of the discretion were identified by Kirby J in R v Swaffield[21] as:[22]
·the nature of the offence charged;
·the probative value of the evidence and its importance in the proceedings;
·whether the conduct was deliberate, or resulted from a mistake;
·whether the nature of the conduct affected the cogency of the evidence so obtained;
·the ease with which those responsible might have complied with the law in procuring the evidence in question;
·the legislative intention (if any) in relation to the law that is said to have been infringed; and
·whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.
Other factors may be relevant depending upon the facts of the case.
[21] (1998) 192 CLR 159.
[22] R v Swaffield (1998) 192 CLR 159 at 212–213 [135].
This analysis was adopted by Stanley J in R v Rockford,[23] with his Honour emphasising the importance of the concept of “high public policy”.[24]
[23] (2015) 122 SASR 391.
[24] R v Rockford (2015) 122 SASR 391 at 401 [38]–[39].
Assuming that the prosecution have failed to establish the lawfulness of the search, the discretion enunciated in Bunning v Cross[25] is enlivened. Rigney submitted that I should exercise the discretion in his favour and exclude the evidence.
[25] (1978) 141 CLR 54.
I accept that the rights of a citizen to be protected from an unlawful search and entry are important and must be protected. Further, I accept that it is of great importance that police officers entrusted with powers that can infringe on a citizen’s rights should pay close attention to the proper exercise of those powers.
I find that Franz genuinely believed he had a reasonable suspicion. In that sense, his conduct was not a deliberate flouting of the law. Franz did not “cut corners”. It could not be said that the information he did have was “trite”. Further, his conduct does not affect the cogency of the evidence. The finding of the deceased’s iPhone and its (alleged) link to Rigney is a very important piece of evidence in the prosecution case. Self-evidently the offence of murder is serious.
The misuse of GSWs is not tolerated by those higher in authority. The procedure required of filing the PD23A demonstrates that those higher in authority routinely, although not in this case, supervise the use of GSWs.
Taking all these matters into account, I consider they favour the admissibility of the evidence. I would not exercise the discretion to exclude the evidence.
Order
1.The application is dismissed.
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