R v Ramiz Mehmed No. DCCRM-02-419

R v Ramiz Mehmed
[2002] SADC 130
Judge Sulan
Criminal

The accused, Ramiz Mehmed, is charged with possessing cannabis for sale, contrary to section 32(1)(c) of the Controlled Substances Act 1984 (“the Act”) (“the first count”) and producing cannabis, contrary to section 32(1)(a) of the Act (“the second count”). Particulars of the first count are that on the 26^th July 2001, at Kilkenny, he knowingly had cannabis, a prohibited substance, in his possession, for the purpose of selling it to another person. It is further alleged that the said offence involved more than two kilograms of cannabis. Particulars of the second count are that between the 1^st day of May 2001, and the 27^th day of July 2001, at Kilkenny, he knowingly produced cannabis, a prohibited substance.
Prior to the commencement of the trial, Mr Stretton, on behalf of the accused, applied for a permanent stay of the information, pursuant to Rule 8. In the alternative, he sought orders pursuant to Rule 9, that no weight measurements of the cannabis taken by the Crown, be admitted. There were other items of evidence in respect of which the accused sought orders pursuant to the Rule 9 notice, but it is unnecessary in these reasons to deal with those matters.
The major thrust of Mr Stretton’s argument was that I should order a permanent stay on the ground that evidence had been destroyed and that his client was therefore deprived of the opportunity of a fair trial. He submitted that that unfairness amounted to an abuse of process, thereby rendering it appropriate for the Court to order a permanent stay. Further, he submitted that if the stay was not granted, I should exercise my discretion to exclude all evidence relative to weight of the cannabis. Before I deal with the applications, it is important to set out the relevant facts.
Factual Background
On the 26^th July 2001, police attended at premises at 8 Brian Street, Kilkenny. Detective Senior Constable Vincent was the officer in charge of the investigation. The accused was at the premises and police were directed to a garage at the rear of the premises.
Inside the garage the police observed hydroponic equipment and twelve small cannabis plants growing in rockwool blocks under lights. In another area of the garage they found one larger growing plant and a quantity of cut cannabis hanging and drying. They also observed a quantity of what appeared to be cannabis heads on the floor. Photographs were taken. The property was then seized. The loose cannabis and the cannabis which was hanging in the shed were packed in separate plastic bags. The twelve growing pots were packed separately and the one growing plant was packed separately. Constable Robert Rae was assigned as the exhibits officer.
The accused was not interviewed at that time, nor was he arrested. He voluntarily attended at the Port Adelaide police station three days later on Sunday 29^th July 2001, when he declined to answer questions. Subsequently, an information was laid on the 20^th December 2001, which required the accused to attend at the Port Adelaide Magistrates Court on the 30^th January 2002. The information alleged one count of possessing cannabis for sale, that amount being in excess of two kilograms and one count of cultivating cannabis, the number of plants being 13 plants.
Constable Rae gave evidence that on the 26^th July 2001, he took the various items that had been seized, to the Port Adelaide police station, where they were placed in four hessian bags, which were marked with a property receipt, 02/A38066. Evidence was given that when exhibits are booked in at the property section, a computer generated police property receipt is produced. The computer generates an exhibit number and each individual item is given a separate item number under the exhibit number. Item one was the bag containing the twelve small cannabis plants. Item two was the bag containing the loose cannabis head. Item three was the bag containing the cannabis heads and stalks which had been hanging in the shed, and item four was the bag containing one large cannabis plant. The computer generated receipt in respect of each item was attached to each bag by string, and the bags were stored in the property area. There was a specific area for storage of drugs and illicit substances. The evidence established that the exhibits were stored in divided sections and that exhibits from other investigations may have been stored in the same section.
On the 26^th July 2001, the accused was provided with a receipt in respect of the property that had been seized. Constable Vincent gave evidence that it was his practice to provide a document known as a “PD94”, to persons in cases where property, which was to be analysed, had been seized. The PD94 is a notice to an accused person that if they wish to examine property which has been seized, they should give notice to the Commissioner of Police within 14 days of receipt of the PD94, that they desire to have the property retained. Constable Vincent had no independent recollection of providing such a notice to the accused, but he said that one would have been given to the accused on the 29^th July 2001, in accordance with his usual practice. The accused gave evidence that he was never provided with a notice. The accused consulted a solicitor, Jon Lister, on 21^st September 2001. An affidavit of Jon Lister was tendered by consent, in which he deposed that his practice was to ask all clients to provide him with all documentation. The accused did not provide him with a PD94. The accused said that the only document ever provided to him by the police was the receipt for the seized goods.
Neither Constable Vincent nor Constable Rae made notes. In giving their evidence, their recall of detail was dependent upon their usual practice and upon the computer generated documentation. In that regard, as in a number of respects with which I will deal later, the investigation was unsatisfactory. Constable Vincent was not a convincing witness. He had little memory of this investigation. He was the officer in charge and in my view, the whole investigation was carried out somewhat casually. No adequate notes were kept and the various police officers who gave evidence had little recall of detail. I am not satisfied that Detective Vincent followed his usual practice in respect of delivering a PD94 to the accused. I am satisfied that if written notice had been provided to the accused, he would have given it to Mr Lister. I am satisfied that Mr Lister did not receive such a document. I accept the accused’s evidence that he was not given a notice.
On the 3^rd September 2001, Constable Vincent delivered the four hessian bags to the Forensic Science Department. He completed a request for scientific examination form (exhibit “P2”). The bags were received and a log in receipt was generated at the Forensic Science Department. That log-in receipt was numbered case number 013736, which is a computer generated number. Each item was given a separate item number. The items were then booked in to a room specifically designated for the storage of drugs within the Forensic Science Department.
On the 7^th September 2001, the items were analysed by Mr Gregory Webber, an analyst appointed under the Act. Mr Webber gave evidence about the system of storage within the Forensic Science Department. He said that once the exhibits were numbered and typed with the forensic science identification number they were stored in a secure room specifically designated for the storage of drugs. They were removed by him at the time of analysis. Once he had conducted his examination he re-tagged and re-sealed the bags with the same number and they were again stored until they were returned to the police. I am satisfied that the cannabis seized from the premises and later stored in the hessian bags, was the cannabis that Mr Webber analysed. When Mr Webber analysed the material, his conclusions were as follows :
“Item one contained a sealed white bag containing a mouldy, decomposing matted mass of cannabis cuttings in rockwool blocks with some root development present;
Item two contained a sealed white bag containing a gar bag with approximately 2,300 grams of slightly damp, mouldy, decomposing female cannabis plant material;
Item three contained a sealed white bag weighing approximately 4,650 grams and containing slightly damp, mouldy, decomposing female cannabis plant material on cut stem pieces up to approximately 60 centimetres long;
Item four contained a sealed white bag weighing approximately 4,270 grams and containing slightly damp, mouldy, decomposing cannabis leaf and female flower material on cut stem pieces, up to at least one metre long.”
In evidence, Mr Webber said that the useable weight in respect of items two and three was somewhere around 2.7 kilograms.
Constable Vincent attended at the Forensic Science Department on the 16^th October 2001, when the various items were returned to him. He took those items to the property section at Port Adelaide.
Constable Miller gave evidence that between August 2001 and December 2001, he was the officer in charge of the property section at Port Adelaide. He said that on the 19^th October 2001, the property was destroyed under his authorisation. It is unclear whether prior to authorisation being given, Constable Miller spoke to Constable Vincent. Neither Constables Vincent or Miller had a memory of any discussion. The computer generated property receipt contained a reference in respect of each item under a title “Destruction Authorised if Incident Finalised”. The response to that question was “No”. There was a further endorsement on the receipt in the following terms “Property Officer. Please do not destroy these drugs as they are required to be weighed”.
Constable Miller gave evidence that before authorising destruction, he checked to see if a PD94 was attached to the exhibit and found no such document in respect of these exhibits. When the exhibits were destroyed, it was done in the presence of a Justice of the Peace and Senior Sergeant Ian Gibson. Constable Miller gave evidence that Sergeant Gibson was acting officer in charge at Port Adelaide at the time and that he was therefore acting in the post of a commissioned officer. Constable Miller said that the reason for the destruction of these exhibits, as with other exhibits was that the property room was becoming too crowded and items had to be released or destroyed. That was his role.
Section 52A of the Act provides :
“52A         (1)    Subject to this section, seized property must be held pending proceedings for an offence against this Act relating to the property.
(2)    If seized property-
(a)     is a prohibited substance or a drug of dependence or other poison; or
(b)    is, in the opinion of the Commissioner of Police, likely to constitute a danger if stored pending proceedings for an offence against this Act relating to property,
the Commissioner of Police may direct that the property be destroyed, whether or not a person has been or is to be charged with an offence in relation to it.
(3)    Property referred to in subsection (2) may be destroyed at the place at which it was seized or at any other suitable place.
(4)    If a charge is laid, or is to be laid, for an offence in relation to property referred to in subsection (2)-
(a)samples of the property that provide a true representation of the nature of the property must be taken and kept for evidentiary purposes; and
(b)the defendant is entitled to have a portion of the sample analysed by an analyst (see section 53); and
(c)the defendant must be given written notice of that entitlement.
(5)    Possession of samples taken under this section must remain at all times within the control of the Commissioner of Police or his or her nominee.
(6)    The regulations may make provision relating to the taking of samples of seized property and analysis of those samples.
(7)    If the Magistrates Court on application by an authorised officer, or any court hearing proceedings under this Act, finds that seized property-
(a)was the subject of an offence against this Act; or
(b)consists of equipment, devices, substances, documents or records acquired, used or intended for use for, or in connection with, the manufacture or production, or the smoking, consumption or administration, of a prohibited substance or drug of dependence,
the court may, by order, forfeit the property to the Crown.
(8)    Property that is the subject of an order for forfeiture under this section may be sold, destroyed or otherwise disposed of as the Commissioner of Police directs.
(9)    Subject to subsections (10) and (11), if seized property has not been forfeited to the Crown in proceedings under this Act commenced within the prescribed period after its seizure, a person from whose lawful possession the property was seized, or a person with legal title to it, is entitled to recover from the Commissioner of Police (if necessary, by action in a court of competent jurisdiction) the property itself, or if it has been damaged or destroyed or has deteriorated, compensation of an amount equal to its market value at the time of its seizure.
(10) Subsection (9) does not apply to property that has been destroyed under subsection (2) if the property-
(a)was the subject of an offence against this Act; or
(b)consists of equipment, devices, substances, documents or records acquired, used or intended for use for, or in connection with, the manufacture or production, or the smoking, consumption or administration, of a prohibited substance or drug of dependence.
(11) Despite subsection (9), a court hearing proceedings under that subsection in relation to property that has not been destroyed under subsection (2) may, if it thinks fit, make an order under subsection (7) for forfeiture of the property to the Crown.
(12) The operation of the provisions of the Criminal Assets Confiscation Act 1996 relating to forfeiture of property referred to in section 4(a), (b) or (c) of that Act or any other provisions of that Act is not affected by this section.
(13) In this section-
the prescribed period means two years or such longer period as the Magistrates Court may, on application by an authorised officer, allow;
seized property means anything-
(a)seized under this Act; or
(b)seized otherwise than under this Act that is evidence of an offence against this Act.”
Neither Constable Miller nor Constable Vincent knew of the provisions of section 52A and neither of them had regard to the provisions of that section when dealing with the exhibits in this case. The power to order the destruction of exhibits under section 52A can be exercised by the Commissioner of Police or a duly authorised member of the police force. There was no evidence before me that those who caused the destruction of the exhibits in this case were authorised as required to do so. Mr Lesses, for the Director of Public Prosecutions, conceded that there had been non-compliance with section 52A in that respect.
I conclude that there was a breach of section 52A in that there was no evidence of proper authorisation under the Act to Constable Miller. No senior officer was called to say that he had been authorised to authorise the destruction of the exhibits as provided by section 52A. Further, no samples were kept as required by the section. I accept the evidence of Constables Vincent and Miller that they were not aware of the provisions of section 52A. I consider it unsatisfactory that an officer who was in charge of a drug investigation and an officer in charge of property were unaware of the provisions of section 52 of the Act. I conclude that there was a somewhat cavalier approach taken by the police in this case. No proper notes were kept of their observations at the scene. Mr Vincent made no note as to whether a PD94 had been provided to the accused. He gave evidence that it was not his custom to make a note, but it was his practice to provide such a document. I do not consider that that is satisfactory, and a note should be made by any officer when he provides a document, such as a PD94, to an accused person. It seems to me that there was no reason why the handing of the document to the accused could not have been part of the video recording at the time when the accused came to the police station.
Further, neither Constables Miller or Vincent made a note of speaking to one another before Constable Miller authorised destruction of the exhibits. That too was unsatisfactory. I conclude, however, that the breach was not deliberate.
When the information charging the accused was issued, it contained the following endorsement “a sample of the cannabis, which is the subject of this charge, has been retained for evidentiary purposes in accordance with the regulations under the Controlled Substances Act 1984. Pursuant to section 52A of the Controlled Substances Act 1984, you have a right to have part of the sample analysed by an analyst. Should you desire to exercise this right, please contact the Criminal Justice Section listed below”.
That notification was incorrect, because the exhibits had been destroyed some months earlier. This again illustrates the unsatisfactory nature of the police communication between different sections. Those who laid the charge were unaware that the exhibits had been destroyed.
The accused gave evidence that when he received the information, he was surprised that it was alleged that the weight of the material was in excess of 2 kilograms. He raised that matter with his solicitor, and a request was made to examine the material seized. The police were unable to comply with that request because the material had been destroyed.
Stay of Proceedings
It was submitted by Mr Stretton that the accused and his solicitors have been deprived of an opportunity to examine the material, or to have an expert examine the material. The defence has therefore been deprived of the ability to call independent evidence to support the accused’s contention that the useable material was far less than two kilograms and that the cannabis the subject of count 1 may have weighed less than 2 kilograms. It was contended by Mr Stretton that the accused has been deprived of the opportunity to prove by independent evidence that the material seized was of such little value and of such poor quality that it was not saleable. He submitted that evidence was particularly important given that if the weight of all the material was proved to be in excess of two kilograms, the accused then had the onus to establish that it was not possessed for the purpose of sale. Mr Stretton submitted that to allow the trial to proceed in those circumstances would be so unfair as to amount to an abuse of process, and the information should therefore be stayed.
The Second Count
Mr Stretton conceded that as to the second count, the weight of the material and the quality of the material, was not relevant. Therefore, the argument for a stay in respect of that count lacked the same force as in relation to the first one. He submitted, however, that if a trial in respect of the second count were to proceed and the accused was convicted, then, if the Crown allege that the production was for commercial purposes, then his submission had force. He contended that in sentencing, a Judge should not have regard to evidence from the analyst and therefore a finding that production was for commercial purposes based upon weight was not open. In respect of that submission, I indicated to Mr Stretton that that may be a matter for argument at a later time, if and when there was a determination in respect of the second count.
As to the count of producing cannabis, I can see no basis upon which that count should be stayed. The only evidence of the analyst which is relevant to that count is his analysis that the material, which was seized, was cannabis. There was no argument advanced that the accused was prejudiced by his inability to examine the material in respect of that issue. I can see no reason to justify a stay, and the application is refused as to count two.
The Law
The First Count

A permanent stay of proceedings should be ordered only in rare and exceptional circumstances (see Jago v District Court (NSW) (1989) 168 CLR 23; Duncombe-Wall v Police (unreported, Supreme Court, SA, Lander J, no. 502 of 1998, 2^nd July 1998). In determining whether to grant a stay of criminal proceedings, the Court is required to undertake a balancing process whereby two competing public interests are weighed against each other, namely, the right of an accused to a fair trial and the need to punish people who break the law (see Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299 at 301).
In Jago’s case the High Court considered the circumstances in which a Court has power to stay criminal proceedings. The Court discussed the right of an accused person to a fair trial. Deane J at pages 56 and 57 preferred to express it in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial. In discussing the general notion of fairness, His Honour said at page 57 :
“Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness for an overall trial must proceed on a case by case basis and involve and undesirably, but unavoidably, large content of essentially intuitive judgments. The best that one can do is to formulate relevant general propositions and examples derived from past experience.”
His Honour went on to discuss various examples such as impropriety on the part of the prosecution in pre-trial procedures, inadequate or misleading particulars, denying an accused an opportunity of preparing his defence or concealment from an accused of important evidence which would have assisted his defence. His Honour then went on :
“In each of those examples the effect of the default or impropriety could ordinarily be dealt with by orders (eg adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or re-trial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused.”
Brennan J discussed the position at page 49 :
“By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge’s responsibilities are heavy but they are not discharged by abdication of the court’s duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice is not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.”
His Honour went on to say :
“Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility placed on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.” (The underlining is mine.)
The prejudice alleged in this case is that the accused, upon becoming aware that he was to be charged with possessing cannabis for sale, and further upon him becoming aware that it was alleged that the quantity of cannabis, the subject of the possession charge was alleged to be greater than two kilograms, was deprived of the opportunity of having an independent expert examine the cannabis, not only for weight, but for quality and useability, in support of a contention by the accused that so little of the material seized was of saleable or useable quality that a jury should conclude that possession of the material was not for sale. The question of how much material is useable or non-useable is a relevant factor which bears upon the question of how much of the material was for sale, or capable of being sold. These questions go directly to the issue of the accused’s purpose or intention (See Sitturio v Caviello (1995) 81 ALR 293 at 297.) There is a greater prejudice to an accused when the accused has the onus to prove that his possession of the cannabis was not for sale.
Mr Stretton referred to a number of decisions in which evidence had been destroyed and where the court ordered a permanent stay of proceedings. In Holmden v Bitar (1987) 47 SASR 509 the respondent had been charged under the Commonwealth Quarantine Act with bringing tins containing meat paté into Australia. Section 86D of that Act provided that an averment of the prosecution in the information “shall, in the absence of proof to the contrary, be deemed to be proved”. The averment in the information was that the respondent had “knowingly brought into a port in Australia 5 tins of meat paté”. The averment went on to specify the content of the paté. The tins of paté had been destroyed. The respondent had not had an opportunity to have the contents examined. By virtue of section 86D the burden of proof with respect to the tins’ contents were on the respondent. The magistrate dismissed the prosecution on the grounds of an abuse of process, holding that the seizure and destruction of the tins by quarantine officers deprived the respondent of the opportunity of calling evidence in rebuttal of the prosecution case.
There was an appeal against that decision. Cox J observed the power to order a stay of proceedings, or to dismiss them, as an abuse of the court’s processes was quite an exceptional remedy (page 517). His Honour went on to observe, at page 521 :
“There appeared to be no justification at all for the destruction of the evidence before the case had been heard.”
In those circumstances, provided that the Magistrate thought the respondent’s objection was sincerely made (that is, that she really wanted to have the contents examined or tested before trial), Cox J held that the Magistrate was entitled to hold that the appellant had been denied a fair trial, and that the destruction of evidence coupled with the effect of section 86D made the respondent’s position quite intolerable. In Cox J’s opinion the Magistrate was justified in treating this as one of the rare instances of a proved abuse of process and in acting accordingly.
The effect of the destruction of the tins of paté in that case was to deprive the respondent of any opportunity of examining the contents and establishing that the contents were not those as avered in the information.
Similarly, in Commonwealth Service Delivery Agency v Bourke (ibid) at page 299, certain forms which had been lodged with the Department of Social Security by the defendant had been destroyed. Those forms were the only evidence which had the potential to support the respondent’s defence that he had filled out the forms correctly to the best of his capabilities. He was therefore denied the opportunity to cast doubt upon the prosecution evidence and the inferences from that evidence that he had followed a systematically dishonest approach to providing income tax details to the Department, and that the Department had not made errors when processing the information as to income on the forms. Wicks J considered that the prejudice was so great in that case as to justify the ordering of a permanent stay.
Should a Stay be Granted
I return to the proposition that in determining whether to grant a stay the court must balance the two competing interests to which I referred earlier and in doing so the court is entitled to consider processes by which the prejudice suffered by an accused can be lessened by making rulings on evidence. I further have regard to the fact that it is not always possible to secure perfect justice to an accused.
I consider that in order to substantially alleviate the prejudice alleged by Mr Stretton I should order that any evidence relating to weight is to be excluded. The prosecution will then carry the burden to establish beyond reasonable doubt that the accused was in possession of cannabis for the purpose of sale. If no evidence of weight can be led then the burden will not shift to the accused and the prosecution will be required to prove the case against him by evidence other than that relating to weight (e.g., electricity consumption and method of growing and drying).
I also have regard to the fact that even though the accused received no notice of the proposed destruction, it was always open to him from the moment the material had been seized to request an inspection of it. It was open to his solicitor when he obtained instructions on the 21^st September to seek to inspect the material. At that stage it was still available for inspection. I also have regard to the fact that if the reason for the accused desiring to have the material inspected was as a result of the allegation that he was in possession of in excess of two kilograms, even if the material had still been available at that stage it would have been far from in the same condition as it was at or near the time of seizure or when it was inspected by the analyst approximately forty days after its seizure. It was already rotting and mouldy and if it had still been available in December 2001 or January 2002 it would have decomposed even further and I anticipate any evidence as to its quality or useability at the time of seizure would have had limited value.
I conclude, therefore, that if the evidence as to weight is not permitted to be led then the trial will not be rendered so unfair as to amount to an abuse of process and I therefore reject the application for a permanent stay.
The Effect of the Ruling
Mr Stretton submitted that if the evidence of weight is excluded, the consequence of my ruling is that the averment as to weight in count 1 should therefore be struck out. He submitted that the effect of any ruling was that the prosecution could not establish weight and that once the averment was struck out the offence became a non-indictable offence and was therefore triable only in the Magistrates Court.
Mr Lesses submitted that the effect of a ruling was that no evidence of weight could be led before the jury and therefore any averment as to weight should not be alleged when the accused was arraigned before the jury. He accepted that the prosecution therefore had the onus to prove beyond reasonable doubt not only that the accused was in possession of cannabis but that he was in the possession of it for the purpose of sale. He submitted that there was evidence other than evidence of weight, such as, evidence of electricity consumption, evidence of the equipment found at the premises and the evidence of the photographs showing the manner in which cannabis had been stored and was being treated, upon which it was open to a jury to draw the inference and conclude that the accused was in possession of the cannabis for sale. He argued that if the jury did convict the accused of possession for sale of the cannabis it was open to the prosecution then to allege that the weight was in excess of two kilograms. He submitted that that was a matter for the sentencing judge. If it was established beyond reasonable doubt that the weight of the cannabis was in excess of two kilograms then the matter was properly an indictable offence and the maximum penalty was a fine not exceeding $50,000 or imprisonment for ten years.
In response Mr Stretton submitted that any order prohibiting the prosecution from leading evidence of weight at the trial included any evidence which the prosecution would seek to lead in respect of sentence and therefore I should reject the prosecution’s submissions.
In my view the prejudice suffered by the accused in being deprived of the opportunity of having an independent expert examine the material applies both to the trial proper and to any evidence that may be led as to weight if the accused were convicted of the charge of possessing cannabis for sale. It is not to the point that the prosecution case may be strong. I accept that the evidence of the accused that he genuinely believed that the allegation as to weight of which he became first aware after the information was issued in December 2001 was genuine. I accept that he was concerned about that allegation. The conduct of the police deprived him of the opportunity of testing the prosecution case. In my view it is essential to a fair trial of this matter that the appellant should have been given the opportunity to support his contention and it is not to the point that the prosecution case may be strong (see Commonwealth Service Delivery Agency v Bourke at page 299).
It follows that my ruling applies equally to any evidence which the prosecution may wish to call either before the jury or before the sentencing judge if a conviction were obtained. The averment in the information alleging weight should therefore be struck out.
As a consequence it is conceded by Mr Lesses that the matter would then become a summary trial. Mr Stretton submitted that I should refer the matter back to the Magistrates Court. Section 22 of the Magistrates Act 1983 provides that a District Court judge may exercise the jurisdictional powers or functions of a magistrate. As the matter has now proceeded before me and I have heard evidence I consider it appropriate that I should continue to hear the matter and the matter should therefore proceed before me in a summary way and I will exercise the jurisdiction of a magistrate.
Rule 9 Notice
Mr Stretton submitted that I should also rule upon paragraph 4 of the Rule 9 Notice which seeks an order that no weight measurements of the cannabis taken by the Crown be admitted.. It is submitted that this is an appropriate case in which the court should exercise its discretion to exclude the evidence of weight on the ground that it would be unfair to the accused in the sense that the trial would be unfair if such evidence were admitted. Mr Stretton submitted that the same arguments as advanced in respect of the abuse of process argument are apposite and I should exclude the evidence under the general unfairness discretion. In R v Lobban (2000) 77 SASR at 24 Martin J with whom Doyle CJ and Bleby J agreed, dealt with the court’s discretion to exclude evidence. At page 51 of the judgment Martin J summarised the position concerning discretionary exclusion of evidence as follows:
“(i)A court has a discretion to exclude confessional evidence in the exercise of the overall discretion enunciated in the majority judgment and by Kirby J in Swaffield.
(ii)Until the High Court determines otherwise, the overall discretion should be regarded as limited to confessional evidence.
(iii)Prior to Swaffield, discretionary exclusion of confessional evidence was based upon two independent but overlapping discretions, namely, the public policy discretion and a discretion which had as its focus unfairness to an accused.
(iv)The public policy discretion also extends to non-confessional evidence.
(v)The public policy discretion, whether in the context of confessional or non-confessional evidence, is enlivened only if the evidence was obtained by unlawful or improper conduct or if the criminal offence was induced by unlawful or improper conduct on the part of law enforcement authorities.
(vi)The authorities are not consistent as to whether the unfairness discretion formerly applicable to confessional evidence was enlivened only if some unlawful or improper conduct on the part of law enforcement authorities resulted in the making of the confession.
(vii)A discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair:
·      the purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted;
·      the operation of this discretion is not dependent upon the conduct of law enforcement authorities;
·      in principle, this discretion applies to any evidence, but in those areas where special bodies of law exist with respect to the admissibility and discretionary exclusion of particular types of evidence, this discretion may be subsumed by or overlap with well established principles.
(viii)I agree with the observations of Doyle CJ concerning the application of and scope for the exercise of the general unfairness discretion.
(ix)The Christie discretion based upon a comparison of probative and prejudicial values should be seen as an example of the application of the general unfairness discretion.”
In dealing with the general unfairness discretion Martin J examined the authorities in detail. Having done so he said at page 45:
“Bearing in mind the statements in the authorities to which I have referred, in my opinion a discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of the discretion is not dependent upon the conduct of law enforcement authorities. An accused person is entitled to a fair trial and it is the duty of the court to attempt to ensure that the trial is fair: see Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23 and Dietrich). The existence of this discretion is inherent in that duty of the court. For ease of reference I will refer to this discretion as the “general unfairness discretion”.”
His Honour distinguished the general unfairness discretion from other areas in which special bodies of law already exist in connection with the admissibility and discretionary exclusion of particular types of evidence.. In that regard His Honour referred to the principles concerned with the evidence of bad character, the discretion to exclude certain types of identification evidence, the Dietrich discretion in respect of representation and the discretion that can be exercised in respect of confessional statements. His Honour accepted that there may be some overlapping when one deals with the general unfairness discretion but, nevertheless, he was of the view that such a general unfairness discretion is a separate head of discretion in respect of non-confessional evidence. His Honour went on to observe that the inherent power of the court to achieve a fair trial does not permit idiosyncratic notions of what is fair and just, however he accepted that the discretion is broad and its exercise will depend upon the circumstances of any particular case. At page 48 His Honour said:
“Nevertheless, for these purposes the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of “the rights and privileges of the accused”, which rights “include procedural rights” (at 189 and 197). Both discretions look “to the risk that an accused may be improperly convicted” (at 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require of the evidence. In those circumstances the admission of the evidence would result in an unfair trial.”

His Honour went on to say that there are circumstances in which the court may need to weigh factors such as those that are considered in the context of the public policy discretion. He said that the factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. He said:
“For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded.”
In dealing with the requirements of a fair trial in Dietrich v The Queen (1992) 177 CLR 292, Gaudron J at pages 363 and 364 said:
“…Speaking generally, the notion of ‘fairness’ is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and common sense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury. In other cases, the procedures may be modified, for example, to allow for special directions to counteract the effect of pre-trial publicity or even something said or done in the trial itself. Sometimes the venue may be changed to counteract some perceived difficulty in obtaining a fair trial in the area in which the offence was committed; in other cases proceedings may be adjourned, for example, to enable evidence to be checked or to allow for pre-trial publicity to abate. The examples are not exhaustive. They are, however, sufficient to show that the requirement of fairness is, and, in various different contexts, has been recognised as, independent from and additional to the requirement that a trial be conducted in accordance with the law.
The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court.
The notion of a fair trial and the inherent powers which exist to serve that end do not permit of ‘idiosyncratic notions of what is fair and just’ any more than do other general concepts which carry broad powers or circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values. It is because of these matters that the inherent powers of a court to prevent injustice are not confined within closed categories. And it is because of those same matters that, save where clear categories have emerged, the inquiry as to what is fair must be particular and individual. And, just as what might be a fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.”
For the reasons I have earlier expressed I consider it would be unfair and will create an unfair trial for the evidence of weight to be admitted and I conclude that the evidence should be excluded in the exercise of the general unfairness discretion. The evidence is excluded and in my opinion is inadmissible both at a trial and upon the calling of evidence before a sentencing judge in respect of the appropriate maximum penalties to be applied. I rule that the evidence of weight should be excluded for all purposes.

[2002] SADC 130

26 September 2002