R v Pandeli No. Sccrm-99-93 Judgment No. S324
[1999] SASC 324
•6 August 1999
R v PANDELI
[1999] SASC 324
Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ
DOYLE CJ. In my opinion the appeal should be dismissed. I agree with the reasons of Bleby J for so deciding, and have nothing to add to those reasons.
BLEBY J.
Background
This is an appeal against a conviction for possessing cocaine, a drug of dependence, for supply to another person contrary to s 32(1)(e) of the Controlled Substances Act 1984. The appellant was convicted after pleading guilty to the charge on 20 May 1999. In order to understand the circumstances of the plea and of the appeal, it is necessary to recite certain findings of fact made by the trial Judge upon a voir dire hearing as to the admissibility of some crucial evidence. The earlier conduct of the parties in the proceedings also needs to be noted.
On 9 August 1998 Constable Hodge commenced his shift at 7.00am. He checked to ascertain whether there were any outstanding warrants in respect of persons known to him. Later in the day at Gawler Place in Adelaide, whilst on patrol with Senior Constable Quinton, Hodge saw the appellant who was known to him. According to the information he had earlier obtained, there were warrants outstanding against him. He checked by radio with Hindley Street Police Station and ascertained that the warrants were still outstanding. He asked the officer on duty at Hindley Street to arrange for the Records Office to fax copies of the warrants to Hindley Street.
Constable Hodge approached the appellant and informed him that there were warrants outstanding for judgments both in this State and in the Northern Territory in the total sum of $2415. In fact there was $985 outstanding in respect of warrants issued in South Australia and $1430 in respect of four warrants issued in the Northern Territory.
The appellant produced to Constable Hodge the sum of $1200, and a friend of the appellant who was present produced another $500. That was insufficient to pay all that was owing on all of the warrants. However, it was sufficient to pay all that was owing on all the South Australian warrants or all that was owing on all the Northern Territory warrants. There is no suggestion that the appellant was offered the choice of paying the amounts due on some of the warrants and not others or that he requested that such a course be followed.
The accused was in the company of about eight other men. No‑one at that time amongst his friends had sufficient money with them to raise the balance outstanding on the warrants.
Section 79 of the Summary Offences Act 1953 provides:
“79 (1) A member of the police force may, without a warrant, take into custody a person whom the member has reasonable cause for believing or suspecting to be a person for whose apprehension or commitment a warrant has been issued by a justice.
(2) If a member of the police force, without a warrant, takes into custody a person whom the member has reasonable cause for believing or suspecting to be a person for whose committal a warrant has been issued by a justice, that member must forthwith deliver that person into the custody of the member of the police force in charge of the nearest police station and must, as soon as conveniently may be, produce or cause to be produced to the person taken into custody the warrant of commitment (if any), whereupon that person must be dealt with as required by the warrant.”
Section 113 of the Service and Execution of Process Act 1992 (Cth), which applied to the Northern Territory warrants, relevantly provided:
113 (1) The person in respect of whom a warrant of apprehension has been issued may be apprehended by an enforcement officer to whom it is addressed.
(2) The enforcement officer must give the person an opportunity of paying to the enforcement officer without delay the whole of the unpaid amount of the fine as specified in the warrant.
(3) If the person pays the whole amount without delay, the enforcement officer is not to apprehend the person.
....
(6) If the person does not pay the whole amount without delay, the enforcement officer may apprehend the person.
(7) Upon apprehending the person, the enforcement officer must, as soon as practicable:
(a).... bring the person before a court of the State in which the person was apprehended; and
(b) produce to the court the warrant, or copy of the warrant, in the enforcement officer’s possession.
....”
Subsequent provisions of that section direct what is to happen if the warrant is not produced.
When the balance of the money was not forthcoming from the appellant or his friends, they were informed that the appellant was to be taken back to the Hindley Street Police Station to view the warrants and that his friends could call there if they were able to obtain the money, perhaps from an automatic teller machine, in order to satisfy the totality of the warrants then outstanding.
The trial Judge considered that it was understandable that the police officers did not conduct a search of the appellant at Gawler Place. He was in the company of others, one of whom had a record for violence. For their own safety they decided to delay any search of the appellant until they reached the Hindley Street Police Station.
Hindley Street Police Station was said to be a substation of the Adelaide Police Station. It has no lock‑up or charging facilities. However, there is nothing to suggest that it is not a police station for the purposes of s 79 of the Summary Offences Act.
There is no evidence as to which of the Adelaide Police Station and Hindley Street Police Station were the nearest police station for the purposes of s 79 of the Summary Offences Act. It is common ground that, although there was a sergeant stationed at the Hindley Street Police Station the appellant was not delivered into the custody of that officer. However, the warrants were in fact shown to the appellant there, and he was then placed in an interview room. Arrangements were made for a more secure vehicle to take him to the city watchhouse at the Adelaide Police Station, where he was to have been taken before the charge sergeant.
The trial Judge found that, whilst at the Hindley Street Police Station, out of caution and for the safety of both the accused and of the police, the accused was told to empty his pockets. He refused. He was told that since he was under arrest, he was going to be searched, and he was then handcuffed and forcibly searched. He was found to have in his possession a quantity of cocaine. He was then cautioned and given his rights, but from that point on his arrest assumed a different complexion. In due course he was taken to the Adelaide Police Station and charged with possessing cocaine for the purpose of selling it to another person.
The matter eventually came before the District Court, and it was also common ground that in November 1998 the appellant offered to plead guilty to a charge of possession for the purpose of supplying it to another person but not of selling it. That was not accepted by the Director of Public Prosecutions.
The appellant was duly arraigned and pleaded not guilty to the charge of possession for sale. A voir dire hearing was conducted in relation to the events I have just described. The appellant argued that his arrest and detention at the time of the search were unlawful and that evidence of the search was inadmissible. The trial Judge ruled that at the time of the search the appellant was in lawful custody and the evidence was admissible. Immediately upon the ruling being given, counsel for the prosecution sought leave to amend the information to allege possession for the purposes of supply rather than sale. The appellant pleaded guilty and in due course was sentenced. At the time of entering the plea there was no reservation expressed that it was being entered on the understanding that the appellant would not lose his right of appeal against the ruling. Cf R v Romeo (1987) 45 SASR 212.
The prosecution acknowledges that without evidence of the search there was insufficient evidence to prove the case against the appellant for possession of the drug either for the purposes of sale or for the purposes of supply.
In fixing the sentence the trial Judge took into account the fact of the appellant’s plea of guilty, recognising that he had offered in November to plead to the information as it was eventually amended.
Competence of the Appeal
A question arose as to the competence of the appeal in the light of the appellant’s plea of guilty to the amended information. By his plea the appellant is taken to have admitted without qualification all the relevant facts necessary to constitute the offence, including possession of the cocaine. That fact was never in issue. What he unsuccessfully objected to was the admissibility of the evidence necessary to prove that fact. It was only when and because the evidence was ruled admissible that he changed his plea from not guilty to guilty.
I do not place any weight on the fact that, through his legal adviser, he had previously offered to plead guilty to the charge to which he did ultimately plead. There may be a number of reasons for that, including an assessment of the risk that the evidence would be held to be admissible, together with other factors presently unknown to this Court. I believe it would be improper for the Director of Public Prosecutions to attempt to lead evidence of an earlier offer to plead guilty as an admission of the relevant facts in a subsequent trial. The effectiveness and efficiency of the criminal justice system would be placed in severe jeopardy if defendants were considered to be at risk in making such approaches to the DPP.
The appellant’s reliance on his plea in mitigation of penalty is, however, another matter. There is a distinct element of inconsistency in relying on a plea in order to gain a significant sentencing benefit whilst then seeking to have the conviction based on that plea set aside.
Leaving aside the effect of a plea of guilty on the question of penalty, there is much to be said for allowing an appeal against conviction to be entertained in circumstances such as these. That is, where following a ruling on the admissibility of evidence, a trial and conviction would otherwise become a formality, and where the accused genuinely wishes to challenge the ruling which was the only basis on which the plea was entered. That was the only factor, it would seem, which stood between a finding of guilt or innocence.
Convenience suggests that a defendant in those circumstances should be able to appeal against the conviction rather than being required to put the State to the expense and inconvenience of what may, in some circumstances, be a substantial trial.
This was not a case where there had been an express reservation of the accused’s right of appeal with the cooperation of the prosecution. Cf R v Romeo (1987) 45 SASR 212. It was not a case where it was argued that the undisputed facts did not give rise to a criminal offence at all. Cf R v Howes (1971) 2 SASR 293; R v Cheng [1999] SASC 175.
Lander J discussed a number of these and other authorities in R v Frantzis (1996) 66 SASR 558. That was a case not dissimilar from the present where the plea depended on a ruling on the admissibility of evidence. However, in that case the prosecution did not argue that the appeal was incompetent. Lander J considered that there were grave doubts as to whether an appeal in those circumstances was competent, but in the light of the absence of objection, he was prepared to allow the appeal to be heard. Cox and Nyland JJ both expressed similar reservations about the efficacy of an appeal in those circumstances. Cox J (at 559 ‑ 560) sounded a warning that it would be “unwise, I think, for a defendant to take it for granted that the procedure that was adopted in the present appeal is always available as a short‑cut option to the course that is normally followed”.
The prosecution in this case argued against the competence of the appeal, suggesting that in the circumstances of this case denial of a right of appeal could never amount to a miscarriage of justice.
It cannot be said that the competence of the appeal was fully argued in this case, and in those circumstances I would prefer not to rule on the question, given that for other reasons, the appeal, if competent, must be dismissed in any event.
Whether the appellant was in lawful custody
The prosecution had relied on s 81(1) of the Summary Offences Act 1953. That subsection reads as follows:
“81 (1) When a person is taken into lawful custody, a member of the police force may search, and take anything found upon, his or her person, and may use such force as is reasonably necessary for those purposes.”
The question was whether the appellant was in lawful custody at the time that the search was carried out.
For reasons which he gave at the time, the trial Judge considered that the appellant’s detention was not unlawful at the time of the search. He considered that the arrest in Gawler Place was lawful. He found that a reasonable time was given for the appellant to satisfy the warrants whilst he was being spoken to in Gawler Place. The appellant and his friends were told that the appellant would be taken to Hindley Street Police Station in order to view the warrants, and where payment could still be made. He considered that it was proper for the appellant to be taken to the Hindley Street Police Station to speed up the process, and found that the warrants were produced to the appellant as soon as they conveniently could be at the Hindley Street Police Station. It would have been foolish, he said, to have attempted to search the appellant in Gawler Place. The search was done as soon as reasonably practicable for the safety of the officers and that of the appellant. He held that it was lawful.
Of course, the question is not whether the search was conducted as soon as was reasonably practicable for the safety of the participants. The question is whether, at the time when the search was undertaken, the appellant was in lawful custody.
It is uncertain whether the appellant was taken to the nearest police station. It appears that at the time of the search he may not have been “forthwith” delivered into the custody of the member of the police force in charge of the police station, even if that were practicable. To the extent that s 79(2) of the Summary Offences Act applied to the warrants in question, there may therefore have been a breach of that subsection. To the extent that the provisions of s 113 of the Service and Execution of Process Act applied, there may be arguable questions as to whether the appellant was given an opportunity of paying the unpaid fines “without delay”, and whether he was properly apprehended in Gawler Place. It could hardly be said in the circumstances that the police failed to bring him before the court as soon as practicable. There may also be nice questions, in the circumstances, as to which of those two statutory provisions apply and whether the appellant should have been given an opportunity to pay the amounts outstanding on either of the South Australian or Northern Territory warrants.
Once again, it is not necessary to embark upon a consideration of these questions. Contrary to the finding of the trial Judge, I am prepared to assume that the appellant was not in lawful custody at the time when the search was conducted.
The admissibility of the evidence
Based on the assumption which I am prepared to make, it would be necessary to consider whether the evidence of the search should be excluded on discretionary grounds of the type referred to in Bunning v Cross (1978) 141 CLR 54. In that case the following statement was taken to represent the law in Australia (at 72):
“Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”
In the course of their joint judgment Stephen and Aickin JJ (at 78 ‑ 80) listed a number of factors material to the exercise of the discretion in that case. By reference to those and other factors it can be said with some confidence in this case that there was no suggestion that the appellant was arrested on a pretext for conducting a search or for obtaining evidence in proof of some other criminal offence. There was no deliberate or reckless disregard of the law by the police. Indeed the combination of the two statutes in question may well have presented the police officer with an apparently insoluble dilemma as to which course he should follow. Constable Hodge suggested in evidence that he was adopting no more than his usual practice in taking the appellant to the Hindley Street Police Station in order to avoid delays which would have occurred in processing the appellant at the Adelaide Police Station. It cannot be said that the nature of the illegality affected the cogency of the evidence of the prosecution in any way. There was no suggestion of cutting corners by the police in order to make their task easier. The offence charged was serious, and one must be wary of being too reluctant to exclude evidence obtained illegally simply because it bears significant probative value. However, it cannot be said that the public interest in the proper administration of the criminal law would be prejudiced by the admission of the evidence in this case. It was evidence about which there could be no dispute. In the absence of any countervailing considerations, the public interest in the need to bring to conviction those who commit an offence where the offence could not otherwise be proved justifies the admission of the evidence.
In all those circumstances it seems to me inevitable that the proper exercise of the discretion would not result in exclusion of the evidence of the search, even if the detention were unlawful. Thus, if all other matters were decided favourably to the appellant, I would have no hesitation in exercising the discretion in that manner. Accordingly, in my opinion the appeal should be dismissed.
WICKS J. For the reasons given by Bleby J I agree that the appeal be dismissed.