R v Muja - [2018] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MUJA
[2018] SADC 58
Reasons for Ruling of His Honour Judge Costello
4 June 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application to exclude evidence of search of a farmhouse in which the applicant, Muja was residing - police attended farmhouse at night for the purpose of locating two possible suspects (other than Muja) and if so to arrest them - police confronted by presence of locked gate some 100-200 metres from farmhouse - police climbed over gate and approached farmhouse on foot - on arrival at farmhouse police pushed open front door and announced themselves - police then noticed strong smell of chemicals and observed glassware containing possible chemicals - police suspected premises being used as clandestine drug laboratory and entered the farmhouse - at time of entry no police officer was in possession of a search warrant - consideration of lawfulness of entry and search - consideration of discretion to exclude unlawfully obtained evidence.
HELD: In climbing over the gate and proceeding to the farmhouse police were trespassing and thereby acted unlawfully - evidence of the 'fruits' of the search should nevertheless be admitted in the exercise of the Court's discretion - application to exclude evidence refused.
District Court Rules 2014 r 49(1)(e)(h), referred to.
Coco v The Queen (1994) 179 CLR 427; Halliday v Nevill (1984) 155 CLR 1; Kuru v New South Wales (2008) 236 CLR 1; Bennett v Police [2016] SASC 139; R v Golja [2017] SASCFC 61; Pollard v The Queen (1992) 176 CLR 177; R v Rockford [2015] SASCFC 51; R v Nguyen (2013) 117 SASR 432; Bunning v Cross (1978) 141 CLR 54, considered.

R v MUJA
[2018] SADC 58
Introduction

Todi Muja (‘the applicant’) is charged with the following offence:
Statement of Offence
Manufacturing a Controlled Drug. (Section 33J(1) of the Controlled Substances Act, 1984).
Particulars of the Offence
Todi Muja between the 9^th day of September 2016 and the 9^th day of October 2016 at Tailem Bend, manufactured a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was or was to be a controlled drug.
The applicant has filed an application pursuant to the provisions of r 49(1)(e)(h) of the District Court Rules 2014 seeking the following order:
1. That the Prosecution not be permitted to lead evidence of, nor make reference to, the ‘fruits’ of a search conducted at about 10:15pm on Saturday 8 October 2017 (sic) at 6.29 (sic) Westbrook Road, Tailem Bend, South Australia.
The grounds upon which the applicant relies are:
1.1That the search was unlawful in that, police at all material times acted as trespassers. Police had neither leave nor licence either express or implied to enter or remain on the property.
Prosecution Case in Overview
At approximately 10:15 pm on 8 October 2016 five members of the State Tactical Response Group (‘STRG’), Senior Constables Goreing, Hocking, Bentley, Hintz and Rowe drove towards the property at 629 Westbrook Road, Tailem Bend (‘the subject land’).
They were in attendance at the subject land to render assistance to the Murray Bridge CIB. Detective Brevet Sergeant Clegg (of the Murray Bridge CIB) was at that time the senior officer investigating an offence involving two suspects named Ward and Hales.
Sergeant Clegg had sought additional resources from members of the STRG to assist him in carrying out enquiries as to the whereabouts of Ward and Hales and if successful to then arrest them.
Sergeant Clegg conducted two briefings with these five officers earlier in the day. During the briefings the officers were provided with information concerning some 14 different addresses with which one or either of the suspects had been previously associated.
The subject land was the last address at which they attended on this day.
The officers proceeded in two cars towards the subject land along an unsealed roadway off Westbrook Road for some 500 metres before encountering a gate which blocked their progress.
Some 150-200 metres beyond the gate was a farmhouse which was (unbeknown to the officers) occupied at that time by the accused and a girlfriend of his, Ms Rowan.
All five police officers left their cars and proceeded towards the farmhouse on foot. In order to do so it was necessary for the officers to open the gate or climb over it. The officers were unable to open the gate but decided nevertheless to enter the subject land, which they did by climbing over the gate or one of the side fences.
On their arrival at the front door of the house one of the officers, Hocking pushed open a door which was, to his observation, prior to that moment, slightly open by a matter of a few centimetres. He then called out ‘police’. As he did so he noticed a heavy chemical odour coming from the house which made his eyes water. Whilst still outside he noticed, on the lean-to floor, and to the left of the doorway, glassware containing what appeared to him to be chemical type liquids.
Officer Hocking and other officers quickly formed the impression that the house was being used as a clandestine drug laboratory. The accused attended the front door in response to Officer Hocking’s call. The accused gave him his name and address and told him that the owner of the house, Mr Patterson, was in Murray Bridge. He also told Hocking that there was another person in the house, namely Ms Rowan.
On being apprised of this information Hocking and other officers then entered the house, inter alia, to ascertain whether there were any other persons in the house and, if so, to ‘clear them out’ believing that any such occupants could be in danger due to the existence of potentially volatile chemicals.
After confirming their suspicions, that the house had the hallmarks of premises used for an illicit drug laboratory, the officers contacted officers from the Drug Investigation Branch who arrived later that evening and took over the investigation.
The Evidence in Detail
In the course of its case the DPP called the following witnesses.
Detective Brevet Sergeant Clegg
Sergeant Clegg was at this time attached to the Murray Bridge CIB and conducting an investigation into two suspects, Ward and Hales.
On 8 October 2016 he said that he conducted briefings with members of the STRG wherein he sought their assistance in attempting to locate and then arrest the suspects.
He provided them with a series of addresses at which they were to attend, make enquiries and, if the suspects were located, to arrest them.
Cross-examination
The only information that he provided to the STRG officers (with respect to the suspects’ association with the subject land) was that Hales had been present at this address some six months earlier when enquiries were being made with respect to a stolen vehicle.
Assessment of Clegg as a Witness
I am satisfied that Clegg was both truthful and reliable when giving his evidence. In particular, I accept his evidence that during his briefing of the STRG officers the only information he provided them concerning the association of the suspects with the subject land was that Hales had been there some six months earlier when police were making enquiries with respect to a stolen vehicle.
Senior Constable Goering
He has been a member of the STRG for some five years and a police officer for 16 years. He recounted the briefing from Clegg during which he was asked to search for the suspects at a number of given addresses.
He said that the subject land was a farming style property. On their approach to the subject land he said that they came across a closed gate blocking their path. He did not check to see whether the gate was locked, but given the fact that the officers climbed over it, he assumed that it was locked. He elected to climb over because he believed ‘that I was able to exercise our common law [right] to enter under tacit consent’.
He did not consider that he was, in so doing, committing a trespass because this was a large rural property. In his view, a closed gate on a rural property was quite normal and did not, without more, indicate a withdrawal by its occupants of tacit consent for him to enter.
He chose not to shout out to the potential residents from behind the gate because, in his view, the house was too far away and, in any event, he felt that he had lawful authority to approach the front door of the house.
He said that he did not recall a conversation with his fellow officers prior to them climbing the fence.
He said that if, upon speaking to the occupants, he had been told to leave he would have left immediately as their ‘tacit consent’ to be there would have been withdrawn.
He said that he walked up the path towards the house and then continued to follow the path which went around to the left-hand side of the house. As he did so he heard voices at the front of the house. He returned to the front of the house and was immediately confronted by what he described as an ‘incredibly strong chemical smell’. He then noticed glassware and what he believed to be chemicals in jars on the floor just inside the doorway. He formed the view that the house was set up as a clandestine drug laboratory.
He said that he decided to enter the house because ‘he believed a breach of the peace was being committed’ and that he needed ‘to go into the house to evacuate any persons that were inside and render it as safe as possible’.
He described his understanding of a breach of the peace as ‘an act done or threatened to be done which either causes harm or is likely to cause such harm to a person or … his property’.
He thought that any people in the house would have been in imminent danger because his training gave him to understand that a drug laboratory in these circumstances was ‘incredibly volatile with a high risk of explosion and dangerous fumes’. He completed his search of the house but found no other persons inside. During his search he also took four photographs of items, indicative of it being a drug laboratory, which he observed in the house.
Thereafter officers from the Drug Investigation Branch were called and took over the investigation.
In Cross-examination
He agreed that Ward and Hales were suspected of committing serious offences. He also agreed that they were to be arrested but that to his knowledge there were no arrest warrants issued for them.
He agreed that no single officer, among the five officers, was nominally in charge on this night. He disagreed that he went around to the side of the house as part of a process to cordon off the house. He said that if he had been part of a police cordon he would have remained in position (in accordance with his training) until the house was cleared, rather than immediately going back to the front of the house upon hearing voices.
He disagreed that he had to step inside the house in order to see the glassware on the floor.
He accepted that he had not used the term ‘breach of the peace’, in his out of court statements, but said that he had otherwise described a set of circumstances in his initial statement which, in his view, amounted to a breach of the peace.
He disagreed that he had made up his evidence to justify an unlawful entrance into the house.
Assessment of Goreing as a Witness
Goreing was an impressive witness who made appropriate concessions where his memory did not permit him to answer with any certainty. In short, I accept his evidence as truthful and reliable. In particular, I accept his evidence that he did not check to see whether the gate was locked. I also accept his evidence that he genuinely believed he could enter the subject land on that night.
I accept his evidence that he followed a path which went around to the left side of the house, but immediately returned to the front on hearing voices, as well as his evidence as to what he saw and smelt with respect to potential chemicals.
I am also satisfied that he observed the jars containing apparent chemicals while he was outside the house.
Finally, I accept his evidence as to the basis for entering the house, namely his belief that a breach of the peace may have been committed. In so saying, I do not necessarily accept that the circumstances he described, namely the operation of an illegal drug laboratory, either in fact or law constituted a ‘breach of the peace’ as that term is commonly used and understood. Nevertheless, I accept that at the time he entered the house he held a genuine belief that he was doing so to prevent an actual or threatened breach of the peace.
Senior Constable Hocking
He has been a police officer for 20 years and a member of the STRG for five years.
He said that on the night in question he climbed over a closed gate which (although he couldn’t now specifically remember) was probably locked. At that time his intention was to locate the suspects and arrest them. He didn’t think the existence of a closed gate in a rural location represented an indication that people were not to enter, but was there more to prevent stock getting out.
He said that he walked up to the front door which, in his words, was ‘open and ajar’ by perhaps a couple of centimetres. He said he pushed the door open still further and ‘announced ourselves’ on two occasions.
The accused came to the door and identified himself. He said that he, Hocking, was ‘overwhelmed by a very strong chemical smell which made my eyes water and took my breath away’.
His attention was then drawn, by Senior Constable Bentley (who was standing to his right), to the presence of some glass jars inside the front door, which led him to believe that the house was being used as a clandestine drug laboratory.
He said that he was concerned that, if there were other persons still in the house, such persons could be affected by the chemicals. He therefore decided to enter the house to see if there was anyone in the house who might perhaps be unconscious or in need of medical attention.
In Cross-examination
He said that there was no particular plan in relation to arresting the suspects. He said that these five officers had worked together as a team for a number of years and that their work together was somewhat second nature or intuitive.
He said that on this night the house was well lit. He accepted that he might have announced himself by saying ‘hello, it’s the police’. He disagreed that the door was closed when he announced the presence of police and/or that he had actually opened the door.
He agreed that he asked the accused his name and where the owner, Shane Patterson was. The accused told him that Patterson was in Murray Bridge. He agreed that the accused said he was with a woman named ‘Karla’.
He said that once the door was open and he had formed a suspicion as to the house being used as a drug laboratory, his focus shifted away from the whereabouts of the suspects Ward and Hales to one of concern for the safety of any other persons who may have been in the house.
He said that he didn’t remember the accused saying words to the effect ‘I can’t stop you coming in but this is private property’.
Assessment of Hocking as a Witness
I found his evidence to be generally truthful and reliable. He was frank in his concession that the gate was probably locked, even though he couldn’t now remember if it was. I accept his evidence that he did not believe he was trespassing when he entered the subject land.
I accept his evidence with respect to his memory as to the door being open rather than closed. I also accept his evidence as to the strength of the chemical smells and their impact on him.
I accept his evidence as to his reason for entering the house, namely to ascertain whether others were in the house and to render assistance to them and finally his evidence that prior to entering the subject land, there was no discussion among the officers concerning what I might describe as a ‘plan of action’ should the suspects be encountered.
Senior Constable Bentley
He said that he had been a police officer for 18 years and a member of STRG for some five years. He said that the gate to the subject land was locked because he had tried to open it (to enable the cars to go through) and couldn’t. He said that he jumped over one of the side fences. His intention after entering the subject land was to make enquiries and arrest the suspects if they were there. He said that, if they were not there and the police were told to leave by the occupants, he would have left.
He didn’t consider that he was trespassing because rural properties, in his experience, were often locked to protect stock and other property. Furthermore, he said there was no other way to raise the occupants other than by going over the fence and proceeding up to the house.
He said that he was positioned to the right of Hocking when he approached the house. He said that he thought that the door was shut but he didn’t see Hocking open the door. He said Hocking announced their presence. Inside the open door he saw glassware on the floor and observed a strong chemical smell. He said that the period from the time he neared the front door until he saw and smelt the chemicals comprised only about 10-15 seconds.
He detected the smell of chemicals when he was about 1-2 metres from the door. He too suspected that it was being used as a drug laboratory.
In Cross-examination
He said he had worked with these officers for between two and eight years. He did not know whether he had a torch with him.
He explained what he meant by ‘cordoning’ the house, namely that he and his fellow officers went to various points to the front and side of the house.
In re-examination he said that on some (not all) previous occasions, and prior to entering upon private property, this group of officers had formed plans about effecting a possible arrest but on this occasion they didn’t.
Assessment of Bentley as a Witness
Bentley also gave his evidence in a frank and forthright manner. I generally accept him as truthful and reliable.
I accept his evidence that the gate was locked and that he was genuine in his belief that he was not trespassing by climbing over one of the fences. However, I do not accept his evidence as to the front door being closed. His evidence on this issue is at odds with that of Hocking and he conceded that he did not see Hocking open the door. He said that his attention was on other things as he approached the front door. I prefer Hocking’s evidence on this issue.
I accept his evidence as to observing a strong smell of chemicals being emitted from the house and that when he referred in his statement to a ‘cordon’ he meant no more than the police officers going to various points at the front and side of the house.
Senior Constable Hintz
She had been a police officer for 14 years and a member of STRG for two years. She confirmed that she and other offices had attended the subject land at about 10:15 pm. She could not recall whether the gate was locked. The gate, she said, was some 150-200 metres from the farmhouse.
She didn’t consider that she had been trespassing by entering the property. She thought that she had a tacit consent to enter upon the property in the absence of any keep-out type signs informing them that they could not enter.
On reaching the house she followed the path to the left side of the house because she knew, having been raised in the country, that country houses often have numerous doors.
After proceeding along the left side of the house she heard voices and returned to the front in the direction of those voices.

She was then informed by Bentley of what he had seen and smelt. Due to her concerns for the safety of any persons in the house she entered the house in order to carry out a search.
In Cross-examination
She said she went around the side and towards the back of the house because rural properties often have their main door at the rear. She said they were only there to question possible suspects and not to arrest them, but rather contact Murray Bridge police if they located them. She could not recall how she entered the subject land i.e. whether she climbed over the gate.
She said that they did not discuss any plan for what might occur if the suspects were located. She could not recall whether she used her torch that night.
She said Goreing took photographs in the house because, in her opinion, he suspected it was a drug laboratory.
She was unable to say whether the front door was open or closed when they approached.
Assessment of Hintz as a Witness
I have no hesitation in accepting her as an honest witness. However, I have reservations as to her reliability. I am not prepared to accept her evidence that they were not instructed to arrest the suspects if they encountered them. On this issue I prefer the evidence of other officers such as Goreing and Hocking.
Senior Constable Rowe
He had been a police officer for 13 years and in the STRG for 3½ years. He said that when they reached the gate it was locked. He said that the gate was located some 200 metres from the farmhouse.
He said that there was no conversation as to what they were going to do before they climbed over the gate.
He didn’t think he was trespassing in climbing over it because he said there were no signs telling persons to keep out and because of his experience of country properties, namely that they were often closed because the occupants could not always be there to meet visitors.
On entering the subject land, he proceeded towards the front of the house but to the left of the front door. He said that he noticed Hocking speaking to a male and female before he, Hocking entered the house.
He said that he decided to enter the house to ensure the safety of Hocking. He didn’t see Hintz or Goreing enter the house. Whilst in the house Hocking said to him that the house was being used as a drug laboratory. He said that his intention, when he went into the house, was to clear any occupants from the house for their safety.
In Cross-examination
He said the suspects were to be arrested if located. He said that prior to entering the subject land there was no conversation with respect to planning what they were to do if the suspects were located.
In terms of the front door he said that he couldn’t tell whether it was completely closed or slightly ajar.
He thought that it was Hocking who went into the house first and that he followed him. He only saw Goreing as he came out of the house.
Assessment of Rowe as a Witness
In his case, whilst I am satisfied that he was being honest in giving evidence, again I have some reservations about his reliability. He said that he entered the house after Hocking but did not see either Goreing or Hintz in the house. The house is not a large house and it is difficult to understand how he could not have seen either of them during his time in the house. Again, where his evidence differs from others, particularly Goreing and Hocking, I prefer their evidence.
Applicant’s Case
The accused elected to give evidence on the application. He was the only witness called in his case.
The Accused
He said that he was at his friend, Patterson’s house on 8 October 2016 and that he had been there for about 45 minutes before the police arrived. He said that he was there to have sex with Karla. He said that on this night the gate was locked. When police arrived he was in the lounge room with Karla.
He said that he heard the front door opening and then heard the words ‘hello police’. He went to the front door and gave his name to police who then asked where Patterson was. He told them where Patterson was and that Karla was in the house with him.
He said that there was no chemical smell in the house. He said that the police officer (Hocking) said we are going to go through and look for Fiona and asked whether anyone else was in the house. He said no. When they said they were going to come in he said ‘I can’t stop you – this is private property. I’ve got permission to be here’.
He said the front door was definitely closed and that police opened the door.
In Cross-examination
He denied that he was cooking methylamphetamine on this night. He said Patterson was a friend. He was ‘pretty sure’ that on this day he had called Patterson to get his permission to go to Tailem Bend so that he could have sex with Karla. He wasn’t using drugs at this time but Karla was. Prior to this date he said that he hadn’t done much with Karla. He said he drove to Murray Bridge in Karla’s car whereupon Patterson drove them to the subject land in Karla’s car and dropped them off.
He denied that the reason there was no car left at the subject land was in order to hide the fact that he was running a drug laboratory. He said that he and Karla had to jump over the gate because it was locked.
He said that he didn’t see any of the drug paraphernalia in any parts of the house during the time he was there. When it was suggested to him that police had found the exact same item, namely a condenser, in his house, as was found by the police in the lounge room of the farmhouse, he said that ‘he didn’t know about that – maybe they have’.
He said that he didn’t notice a fan drying (from what the video footage may have been) chemicals, nor the glassware with chemicals at the front door.
He disagreed with the suggestion that lights were on in the front area of the house.
Assessment of the Accused as a Witness
I am not prepared to rely on the accused as a witness of truth. I found him to be an evasive and argumentative witness who advanced a version of events which simply lacked the ‘ring of truth’. By way of example, it simple offends common sense for someone in his position to fail to notice any of the numerous items in the house which one might commonly associate with drugs.
It is equally difficult to believe that the owner of the house would drive him and his girlfriend out to a house where, in order to gain access, they were forced to jump over a gate and then drive off leaving them without the very vehicle which he and his girlfriend had used to travel to Murray Bridge from Adelaide.
I formed the view that during his evidence he regularly gave answers of convenience. Where his evidence was in conflict with that of the prosecution witnesses and in particular Goreing and Hocking, I prefer the evidence of the latter.
Against this evidence and my assessment of the witnesses, I make the following findings as to which, I am satisfied beyond reasonable doubt.
Findings
·The five police officers were experienced police officers who had worked together as part of a team for a number of years;
·The subject land was the 14^th address visited by the officers on this day. It may generally be understood to be a farming property;
·The gate which the officers encountered on that night was locked. The officers climbed over the gate or a side fence to enter the subject land;
·The officers entered the subject land with the intention of speaking to the occupants concerning the possible whereabouts of the suspects, Hales and Ward;
·The intention of the officers (save and except for Hintz whose evidence on this issue I do not accept) was to arrest the suspects if they were located in the farmhouse;
·Prior to entering the subject land the officers did not discuss what was to happen if the suspects were encountered nor did they form any plan of action in that respect;
·The farmhouse was some 100-200 metres from the gate;
·As the officers approached the farmhouse it was well-lit by internal lighting in a number of rooms;
·As the officers approached the house Hocking went to the front door, with Bentley going to a point to Hocking’s right by perhaps 10 metres. Officers Goreing and Hintz followed a path around to the left side of the house while Rowe stayed slightly back from and to the left of Hocking;
·As Hocking approached the house the door was open (albeit fractionally) and not closed;
·Hocking pushed the door further open and then announced the presence of police officers;
·After he pushed the door open he became aware (as did other officers) of the presence of a very strong chemical smell emanating from the house;
·A short time later the accused came to the front door;
·At about the time the accused did so, Bentley noticed the glass jars on the lean-to floor;
·As a result of the aforementioned observations, Hocking, Bentley and other officers formed a suspicion that the house was being used as a clandestine drug laboratory;
·A number of officers entered the house in order to ascertain whether other persons may still have been in the house and, if so, to clear them out and/or render assistance to them;
·On this night there were no existing warrants for the arrest of the suspects and none of the officers held a general search warrant.
Against the evidence and these findings, two issues emerge for consideration:
1 Was the entry onto the subject land and subsequent search of the house lawful?
2 If the entry and search was unlawful, should any evidence relating to the results of the search be excluded in the exercise of the Court’s discretion?
Unlawful Entry and Search
In the applicant’s submission the police were at all times acting as trespassers. As such, they were acting unlawfully. Any evidence obtained as a result of their unlawful conduct should, so it was submitted, be excluded.
The legal principles governing this issue are now largely settled.
Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right.[1]
[1] Coco v The Queen (1994) 179 CLR 427, 435.
The aforementioned principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his or her duty, unless the entering or remaining on the premises is authorised or excused by the law.[2]
[2] Halliday v Nevill (1984) 155 CLR 1, 10; Kuru v New South Wales (2008) 236 CLR 1 at [43].
At common law a licence or consent to enter or remain on private property for a particular purpose may be inferred. If the entrance is not locked or obstructed and there is no other indication (for example by notice) that entry by visitors is forbidden, then a licence will be implied to enter the property for any legitimate purpose that does not interfere with the occupier’s possession of the property.[3]
[3] Bennett v Police [2016] SASC 139 at [34]; Halliday v Nevill at pp 6-8; Kuru v New South Wales at [45].
Applying these principles to the circumstances in question, it is clear enough that the entry onto the property by police was not expressly authorised. Whether or not the subject land was rural property with a corresponding need to ensure the security of stock, a licence or consent for police to enter and/or remain could not be inferred in the face of a locked gate and fencing. Nor could it be said that the entry or remainder of the police was otherwise excused under common law or by statute.
In so saying, I do not overlook the fact that the police entered the house with the intention of preserving life or property, a circumstance which may justify what would otherwise be a trespass.[4]
[4] Kuru v New South Wales at [40].
However, their entry into the house occurred after they had entered the subject land unlawfully. I am not persuaded that their status as trespassers was somehow expunged by the exigencies of the situation, however laudable their motives for entry may have been.
In the circumstances, I am satisfied that the police were trespassers and that their entry and search thereby was unlawful. The remaining issue is whether the evidence of the ‘fruits’ of their search, namely the discovery of what is asserted to be a clandestine drug laboratory should be excluded in the exercise of my discretion.
Discretion
The principles governing the exercise of a discretion to exclude relevant and admissible evidence based upon public policy considerations, where that evidence has been obtained illegally or unfairly obtained, were thoroughly canvassed by Stanley J, speaking for the Court, in R v Golja.[5]
[5] [2017] SASCFC 61 at [33]-[35].
As may be seen from his Honour’s observations, the following relevant considerations, which have been distilled from the cases, will largely inform the exercise of a judge’s discretion, namely:
·       the nature of the offence charged;
·       the probative value of the evidence sought to be excluded;
·       whether the conduct of the police was deliberate or resulted from a mistake;
·       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;
·       whether the 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.
In addressing each matter in turn, I am satisfied that:
·       the offence is a serious one;
·       the evidence sought to be included is highly probative of the charge;
·       although the conduct was deliberate, it arose out of a somewhat unusual combination of factors which rendered it, for practical purposes, difficult for the police to make their presence known to the occupants of a house so far away. Furthermore, on this issue, I accept that all officers genuinely, but wrongly, believed they were not committing a trespass in these circumstances. In the result, I am satisfied the officers did not consciously behave in a deliberately unlawful manner;
·       the conduct of the police did not affect the cogency of the evidence;
·       faced with a locked gate and the absence of a warrant (or the likelihood of gaining one) the police would have had to leave and later seek to contact the owner. I am of the view that this would not have presented any particular difficulty for the police;
·       the legislative intention is to prohibit the manufacture and use of illicit drugs;
·       despite the fact that all five officers were experienced senior constables, there is no evidence that their actions in entering a rural property such as the subject land, where the gate was locked, was somehow encouraged by those in higher authority in the police force or that their erroneous understanding of their rights to enter was shared by the upper echelons of the force.
In exercising my discretion, I am particularly conscious of the ‘high public policy’ (identified by Deane J in Pollard v The Queen [6] and confirmed by Stanley J in R v Rockford[7] which favours the exclusion of evidence procured by unlawful conduct by police. I am also conscious of the need identified in R v Nguyen[8] for the courts, in certain circumstances, to censure the excesses of power by which evidence is sometimes procured.
[6] (1992) 176 CLR 177.
[7] [2015] SASCFC 51.
[8] (2013) 117 SASR 432.
Having said that, I did not detect in the behaviour of the police in this case any overt defiance of the will of the legislature or calculated disregard of the common law referred to in Bunning v Cross.[9] To the contrary, here I would characterise the actions of the police as conduct stemming from honest but mistaken beliefs as to their rights to enter the subject land and approach the front door in circumstances where it was otherwise, in a practical sense, quite difficult to establish contact with any occupants.
[9] (1978) 141 CLR 54.
Having undertaken the requisite balancing exercise adverted to by Stephen and Aickin JJ in Bunning v Cross,[10] in my view, the balance lies in favour of admitting the evidence of the ‘fruits’ of the search.
[10] Ibid.
Accordingly, the application for the exclusion of the evidence is refused.