R v Penno No. DCCRM-02-1127

R v MARK JOHN PENNO
[2004] SADC 50
Judge Rice
Criminal
Introduction

The accused is charged with the offence of Possessing Methylamphetamine for Sale. Particulars of the offence are that, on the 31st day of July, 2002 at Gould Creek, he knowingly had a substance containing methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
In this matter a Rule 9 application was filed raising objections to the admissibility of two aspects of the evidence. I heard argument on the objections and ruled that the evidence should be admitted. I indicated that I would provide reasons at a later time. I now provide the reasons for those rulings.
Rule 9 application
The application raises two objections, the second only calling for a decision on the basis that the first objection was unsuccessful.
The first application was that all evidence of the search of the relevant premises on 31st July, 2002 should be excluded as inadmissible because the search warrants issued in respect of that premises were invalid on their face. Further, assuming that the warrants were invalid on their face and the evidence was thereby illegally obtained, that I should not exercise my discretion in favour of admission.
The second application related to entries in a diary located and seized as part of the search. It was submitted that the significance of some of those entries, and the purpose to which those entries were proposed to be put by the prosecution, were only recently made known. It was submitted that, if the diary went in to evidence in its entirety for those purposes, then the accused would not obtain a fair trial without time to obtain the evidence of an accountant with a view to explaining some of those entries. Because there was insufficient time to obtain that evidence, then the diary and its contents should be excluded.
For reasons I will touch upon later, I indicated that I would probably allow some of the diary to go in in any event and otherwise defer a decision as to the remainder. There was no application to adjourn the trial.
For the purposes of the application, certain documents were tendered by consent. The prosecution called one witness on the application. The documents and evidence are discussed below.
Factual background
The declarations revealed that, on Wednesday, 31st July, 2002, police officers at the Elizabeth Tactical Unit, Operation Mantle, attended at 35 Williams Road, Gould Creek. For present purposes I refer to the suburb or area as Gould Creek, although the s.52 Controlled Substances Act warrants possessed by those officers referred to 35 Williams Road, Hillbank. The address at 35 Williams Road consisted of a large house upon an area of land of about ten acres.
Upon the attendance of the officers at that address, they approached the house, knocked on doors and windows, but nobody was home. The officers gained entry to the house via an open garage and unlocked door into the house itself. A number of items were seized from inside the house. Importantly for the purposes of these applications, a significant quantity of methylamphetamine was seized, together with electronic scales, a large number of plastic money bags, two large bags of a cutting agent, a knife with methylamphetamine on its blade and $1,450 in cash.
The diary to which the second application relates was found in one of the rooms. It had notations in it as well as personal and financial documents inserted between its pages such as to suggest it was in current and ongoing use. The diary and its contents were photographed and seized. The diary and the interleaved documents assumed a real importance to the prosecution when the accused later told the police that he was not the occupier of the premises and did not live there.
As mentioned, the police officers who attended at the house on 31st July, 2002 were all in possession of s.52 Controlled Substances Act warrants. They are headed “Warrant to Enter Premises”. Each warrant was issued and signed by Detective Chief Inspector B.G. Smith on 31st July, 2002. Those warrants became P1 on the voir dire. Each warrant nominated the premises in respect of which it authorised entry as “35 Williams Road, Hillbank”.
The first application to exclude all evidence of the search on 31st July, 2002 is based upon the assertion that there are no such premises as 35 Williams Road, Hillbank. Rather, the correct description of the place where the premises are to be found is “35 Williams Road, Gould Creek”. It was submitted that, because the warrant authorised the entry and search of 35 Williams Road, Hillbank and not 35 Williams Road, Gould Creek, an entry and search of the latter premises was not authorised and any seizure was illegal.
Additional evidence - Mr J Purtle
The prosecution called Mr Purtle on the voir dire. Mr Purtle is a rates officer with the Playford City Council. A search of the Council’s records shows there is no address of 35 Williams Road, Hillbank but one address of 35 Williams Road, Gould Creek. Number 35 Williams Road, Gould Creek has the accused, Mr Penno, as the registered owner. Other evidence adduced from Mr Purtle, together with maps of the area, showed that the property owned by the accused was on the boundary of the two suburbs of Hillbank and Gould Creek. His house was the first house in the suburb of Gould Creek having passed out of the suburb of Hillbank.
It was conceded by Mr Braithwaite, for the accused, or at least he was not in a position to contest, that the premises entered and searched by the police were the very same premises that they intended to enter and search. Put simply, the error here was in the misdescription of the suburb as Hillbank, rather than Gould Creek, on the face of the warrants. I expressly find that that misdescription occurred by innocent error and that the premises in fact entered and searched were the premises always intended to be entered and searched. I also find that there are no premises described as 35 Williams Road, Hillbank.
Legal considerations - discussion
The question arises as to the characterisation of the error on the face of the warrants. The misdescription of the address on the warrants is a misdescription of suburb only, indeed the adjacent suburb. Are these warrants invalid and was the consequential search and seizure illegal, such that any evidence obtained in execution of them is liable to be excluded?
It is unnecessary to traverse the legion of cases on search warrants, but there are some that are on point.
In the English case of R v Atkinson [1976] Crim LR 307, the police obtained a search warrant pursuant to the Misuse of Drugs Act, 1971. The defendant resided at Flat 30 in certain premises. The police attended before obtaining the warrant and noted that the flat which they believed the defendant lived in and in which they believed he had drugs, had no number on its front door. It was, however, adjacent to a flat number 46. The police, therefore, obtained a warrant for Flat 45. Upon their execution of the warrant, the defendant flushed tablets down the toilet.
Upon a charge of obstructing a police officer in execution of his duty, the trial judge admitted evidence of the search holding that the mistaken address not vitiate the search warrant. The report is scant but it seems that the court, on appeal, took the view that the warrant did not permit an entry to Flat 30, but only to Flat 45. In other words, the error was not treated as a misdescription of premises but as a description of other premises. On that basis, and having regard to the nature of the power, the appeal was allowed.
The report also notes the comment that misspellings or trivial errors in the description of premises would not necessarily invalidate a warrant. That comment was cited with approval in R v Conley (1979) 21 SASR 166.
The final case is Police v Boileau (1999) 75 SASR 179. A single judge of the Supreme Court referred to the Full Court an appeal from an acquittal by a stipendiary magistrate. The proceedings before the magistrate arose from a complaint with three counts alleging various offences arising from activities in what was alleged to be a brothel. The officers who attended at and entered the premises were each in possession of an authority issued by a superintendent of police, purportedly in pursuance of s.32 of the Summary Offences Act 1953.
The premises the subject of the police attention were known as the “Hyde Park Relaxation Centre”. Its correct address was 5/100 King William Street, Goodwood. The authority issued to one of the relevant police officers to enter and search referred to the premises at “5/100 King William Road, Hyde Park”. Concerning that error, Olsson J (with whom Nyland J agreed) said this (182):-
“It is to be observed that the address shown in the warrant incorrectly refers to the adjacent suburb of Hyde Park and ought to have referred to Goodwood. However, it is impossible to perceive how this could be said to be a matter of significance. King William Street is well known and the subject premises were correctly identified by number in that street. The error, in truth, was trivial and could not possibly have invalidated the authority. (Cf R v Atkinson [1976] Crim LR 307, R v Conley (1979) 21 SASR 166 at 169.) No doubt it stemmed from the actual name of the business conducted on the subject premises.”
In a separate judgment, Mullighan J said this (189):-
“I do not think that the misdescription of the suburb in the authority is a relevant error. It is a mistake, but without question the authority referred to particular premises. It is no different than correctly describing premises as the ABC Tennis Club with the correct street number and street, but wrongly using the name of another but adjacent suburb if the identity of the premises cannot be mistaken.”
Although the description of the subject premises as known to the police was “Hyde Park Relaxation Centre”, the authority simply referred to the address as “5/100 King William Road, Hyde Park”.
In my view, the misdescription of the suburb was not a relevant error. I rely upon Boileau’s case (supra), although I do not overlook the fact that that case involved an authority and the case I am considering involved a warrant for a far more serious offence and with greater powers upon entry. (See also R v Edwards [1998] QCA 246 and R v Adamic (2000) 117 ACrimR 332.)
If I am considered to be wrong about that characterisation, and the error was a relevant error thereby rendering the search and seizure illegal, I would have no hesitation in exercising my discretion in favour of admitting the evidence of that search and seizure. In so ruling, I have considered the competing considerations in Bunning v Cross (1978) 141 CLR 54.
Before leaving this topic, there is one additional observation I would like to make. I did not become aware of this matter until after my ruling on this topic during the course of the trial.
As mentioned, the warrants possessed by these officers referred to 35 Williams Road, Hillbank, when the suburb should have been the suburb over the accused’s boundary, namely, Gould Creek. The accused’s diary which has also been mentioned above has his address written in it as 35 Williams Road, Hillbank, the same address as on the police officers’ warrants. Even if that is not his writing, he has failed to correct it. It would seem quite unreasonable to be too critical of the police for using an address that is borne by the accused’s own diary.
The remaining matter relates to the same diary. As I summarised earlier, the significance of some of the entries in the diary were only drawn to counsel’s attention shortly before the trial. Without sufficient time to obtain accounting advice as to the meaning of these entries (the entries relating to the accused’s financial position), it was submitted that the accused would not receive a fair trial. I took the view that a few pages of the diary should be admitted in any event because they indicated that, even though it was a 2001 diary, it was being used currently and in an ongoing fashion by the accused. Bearing in mind it was found in the house on Williams Road where the accused denied he was living, it was relevant to prove he was living or staying at the place where the methylamphetamine was found.
In my view, the other entries in the diary that related to the accused’s financial affairs were not of such an unusual or complex nature that he would have been denied a fair trial to proceed at that stage. In any event, I deferred a final decision as to the admissibility of the diary until it was sought to be admitted during the trial. As events transpired during the trial, the diary was admitted in its entirety without objection.
For these reasons I overruled the objections.

[2004] SADC 50

12 March 2004