R v Prinz (No 1) No. DCCRM-02-483

R v RIC MARK PRINZ (NO 1)
[2002] SADC 145
Judge Lunn
Criminal
REASONS ON VOIR DIRE RULING

In 2002 there was a task force within the South Australian Police known as “Avatar 2” which was concerned with the activities of motor cycle gangs. I have no direct evidence about the scope of the activities of this task force, but I infer that it was not confined only to investigating offences against the Controlled Substances Act 1984 (“the CSA”). On 29 October 2001 task force Avatar 2 organised an operation known as “Calypso” which involved several hundred police officers drawn from many different branches of the police force. In operation Calypso about twenty teams, each comprising about eight police officers, raided numerous premises in and around Adelaide searching for illegal drugs and evidence of offences against the CSA. Each of the raiding teams contained a field intelligence officer attached to an Intelligence section of the police force whose particular task in searching premises was to hunt out, record and forward to the State Intelligence Branch information which the intelligence officer thought would be of interest to that Branch. The intelligence officers in operation Calypso did not seize documents but merely recorded in their note books and field sheets particular pieces of information which they found in the premises being searched. When the information obtained by a field intelligence officer was sent back to the State Intelligence Branch it was processed by a person under the title of “Avatar Intelligence Analyst”, and, inter alia, put into reports which were circulated by the State Intelligence Branch to other parts of the police force.
In operation Calypso Search Team 16 comprised eight police officers which was led by Detective Clarke. One member of the team was Constable Uzelac who was a member of the Port Adelaide Intelligence Section. He acted in the team as the field intelligence officer. Each member of the team held a search warrant under s52 of the CSA. After various briefings Search Team 16 first visited premises in Charlotte Street, Adelaide where they used their warrants to search those premises. However, no drugs or evidence of offences were found there. Nevertheless, Constable Uzelac in the course of his search recorded various information which he gained on the search and submitted it to the State Intelligence Branch. Precisely what information he gave as a result of this search was not disclosed in evidence.
Later that morning Search Team 16 acting under warrants under s52 of the CSA searched the premises at 218 Gorge Road, Newton in which the accused resided. The accused had been involved in hydroponics and transport businesses, which had been carried on at least part from those premises. There is no evidence that he has any direct association with any motor cycle gang. In the course of the search Constable Uzelac concentrated on the documents he found in the premises. He made notes about various documents which he saw, copied names and telephone numbers from a teledex and telephone numbers from the memory in the accused’s mobile phone. Uzelac’s primary focus during the search was on information recorded in documents which were in the premises. However, Uzelac did not have any instructions about any particular names, telephone numbers or the like he was to look for. He merely recorded things which he thought might generally be of interest to the State Intelligence Branch. However, he did not have any real appreciation of precisely what use the State Intelligence Branch was going to make of the information which he submitted. There were numerous business documents in the premises and he did not seek to record much of the information which was contained in them. While other police officers in Search Team 16 also looked at documents they were merely interested in documents which might provide direct evidence of drug dealing and they did not record anything which they found in the documents there. Ultimately the searching of these premises located a substantial quantity of cannabis in a rear shed, but its detection was unrelated to anything which Uzelac had done in the course of his searching.
Soon after the arrest of the accused Uzelac sent the information which he had obtained on the search of the accused’s premises to the State Intelligence Branch. There is no evidence about what the State Intelligence Branch did with this information. There is nothing in the depositions to suggest that this information about names, telephone numbers and the like has formed any part of the evidence to be adduced by the prosecution in this case. It was within the power of the DPP to adduce evidence on the voir dire to show that the information obtained from the premises was only to be used by the State Intelligence Branch in investigating offences against the CSA. However, the failure of the DPP to lead this evidence, combined with the apparently wider objectives of Task Force Avatar, leads me to conclude that the information was obtained at least in a significant part for the investigation of criminal activities other than those in breach of the CSA.
At the commencement of his trial the accused sought a voir dire hearing to exclude all of the prosecution evidence obtained by use of the search warrants under s52 of the CSA on the grounds that the police had misused their powers under those warrants in carrying out the search of his premises. The grounds of the application were amended as the voir dire progressed but in the end result the challenge was confined to a misuse of the powers under s52 to obtain information which was not authorised by s52. The accused did not challenge the validity of the warrants under s52. He relied only on the power of the Court as a matter of public policy to exclude evidence where the police had acted improperly. He did not invoke the Court’s power to exclude evidence on the grounds of unfairness to himself.
A good deal of evidence on the voir dire was concerned with the involvement of police officers from the Crimes Confiscation of Assets Unit. I find that Constable Orr was mistaken in having said that that Unit was notified about the search of the accused’s house before the cannabis was found in the back shed. Although it is impossible to say how that Unit was notified, I am satisfied that it did not occur until after the cannabis in the shed was located. Two police officers from that Unit subsequently attended at the premises, but they did not take part in the search. Neither those officers, nor any other officers in Search Team 16, obtained any information for use in any proceedings under the Criminal Assets Confiscation Act until after evidence had been located of a serious drug offence by the accused. There was no unlawful, improper or unfair conduct of the police in relation to any information obtained by the Confiscation Unit relating to the accused. Accordingly, there is nothing on this topic which could give rise to any exclusion of evidence in this trial.
The only authority asserted by the DPP for Uzelac as the field intelligence officer to have taken the information which he acquired on the search was s52 of the CSA, the relevant parts of which are as follows:
“Power to search, seize, etc.
52. (1) Subject to this section, an authorised officer may-
(a)     enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and
(b)    where reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and
............
(2) While an authorised officer is in or on any premises pursuant to this section, the officer may-
(a)     inspect or search the premises or any equipment or other thing on the premises;
(b)    require any person to produce any books, papers or documents or any substance, equipment or device;
(c)    examine any books, papers or documents and take extracts from any of them or make copies of any of them;
............
(i)     where the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;
(j)     give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer’s powers under this Act.
............
(4) An authorised officer must not exercise the powers conferred by subsection (1)(a) and (b) except upon the authority of a warrant issued by an officer of police, a special magistrate or a justice, unless the powers are being exercised in relation to premises that are being used in the course of an activity in respect of which a licence, authority or permit has been granted under this Act.
(5) An officer of police, special magistrate or justice must not issue a warrant under subsection (4) unless satisfied, on information given upon oath-
(a)     that there are reasonable ground for suspecting that an offence against this Act has been, is being, or is about to be, committed; and
(b)    that a warrant is reasonably required in the circumstances.
(6) Subject to subsection (7), an authorised officer who is a member of the police force may search any person whom the officer believes on reasonable grounds has in his or her possession any substance or equipment in contravention of the Act.
.............”
The powers conferred by s52 are an infringement of personal liberty and privacy. They are to be strictly construed, and in favour of the subject: Tran Nominees Pty Ltd v Scheffer (1986) SASR 361. . The powers conferred on holders of warrants under s52 are very wide, but by implication they are limited to obtaining evidence or information about possible contraventions of the CSA: Swanevelder v Holmes (1990) SASR 549 at 556. They do not extend to using warrants under s52 to obtain evidence or information which is not related to any possible offence under the Act, but only to the investigation and enforcement of other parts of the criminal law. Section 52 only confers the power on police officers to assist in enforcing the provisions of the CSA, and not for any wider police purpose. It is significant that s52(2)(i) limits the power of seizure of evidence to where the officer suspects on reasonable grounds an offence against the Act has been committed. The power in s52(2)(b) and (c) to require production of books and records and to examine them and take copies of them is not so limited. However, it does not give the police the right to take and use information from records inspected on search under s52 where there is no connection between that information and any possible offence under the CSA or to use information properly obtained under s52 for purposes unconnected with the CSA.
On the evidence which I have I find it proved on the balance of probabilities that at least some of the information which was gained by Uzelac at the accused’s premises through the use of his s52 warrant was not directed to matters confined to enforcement of the CSA, but was for general police intelligence purposes. Although Uzelac in his evidence claimed that he believed the information which he took could be related to drug matters, there was no attempt to justify it and there was no evidence that its subsequent use was so confined. But for the use of his s52 warrant Uzelac would not have been able to gain much of this information. I find on the balance of probabilities that the police through Uzalec’s use of his s52 warrant improperly acquired some confidential information about the accused and others which they used, or intended to us, for purposes unrelated to the CSA.
The accused seeks that this Court as a matter of public policy exclude all of the evidence obtained on the search of his home because of this improper conduct of the police in the use which was to be made of some of the information derived from the search: Bunning v Cross (1978) 141 CLR 54. Although the exercise of the discretion here is not to be based upon it, the collection of information by Uzelac on the Charlotte Street search where no evidence of breaches of the CSA was found shows that the collection of information was part of the purpose of Operation Calypso even if there was no right to obtain it under s52 of the CSA. I consider that the Court should exercise what discretionary power it has to show its disapproval of such misuse of the police powers under s52 of the CSA as occurred here.
However, the Court’s power under Bunning v Cross (above) is only to exclude evidence if that evidence was obtained by improper police conduct, and not merely because there is some lesser association between the evidence and the improper conduct: R v Lobban (1998) 77 SASR 24 at 30-35; Question of Law Reserved (No 1 of 1988) (1998) 70 SASR 281. Here the only evidence obtained as a result of the improper police conduct was some of the contents of the accused’s teledex, his mobile phone memory, his business papers and the like. The improper police purpose was unrelated to the finding of the cannabis on the accused’s premises. The improper purpose did not extend beyond the use of Uzalec’s warrant under s52 to collect information and it could not affect the obtaining of evidence by other police officers under the separate s52 warrants issued to them. Accordingly, the order of the Court was to exclude from the trial any evidence based on the information contained in the report from Constable Uzelac. I had no power to order the exclusion of any other evidence obtained on the search and thus I did not order its exclusion.
I made my ruling on the voir dire on 14 November 2002 and the trial then proceeded. These are my reasons for that ruling.

[2002] SADC 145

20 November 2002