SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROCKFORD
[2015] SASCFC 51
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
22 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Permission to appeal against conviction.
Appeal against sentence.
The applicant was found guilty after a trial by judge alone of one count of cultivating a commercial quantity of a controlled drug, one count of trafficking a large commercial quantity of a controlled drug and one count of possessing prescribed equipment.
Whether the trial judge erred in refusing to exclude evidence of the cultivation of a substantial cannabis crop on property leased by the applicant obtained by an unlawful search.
The appellant appeals a sentence of eight years and nine months imprisonment with a non-parole period of four years imposed after the appellant pleaded guilty to three counts of taking part in the production of a prohibited substance contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (the CSA) and one count of taking part in the sale of cannabis contrary to s 32(1)(d) of the CSA. This is separate offending from the offending the subject of the application for permission to appeal against conviction.
Whether the judge failed to consider properly whether imprisonment would have been a greater burden on the appellant by reason of the fact he suffers from terminal cancer. Whether, by reason of that fact, the non-parole period is manifestly excessive.
Held per Stanley J (Kourakis CJ and Sulan J agreeing) granting permission to appeal against conviction and allowing the appeal:
1. The judge failed to have regard to what Deane J describes in Pollard v The Queen as the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice (at [39]).
2. The evidence is excluded (at [47]).
3. Conviction quashed. Verdict of acquittal entered on all three counts (at [48]).
Held per Kourakis CJ and Sulan J (Stanley J dissenting) allowing the appeal against sentence:
4. Imprisonment will bear more heavily upon the appellant than upon a relatively healthy prisoner (at [7]).
5. This case demands a merciful approach (at [9]).
6. The non-parole period is set aside. A non-parole period of 20 months from 30 December 2013 is fixed (at [10]).
Controlled Substances Act 1984 (SA) s 32(1)(b), s 32(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(2c), referred to.
R v Rockford [2014] SADC 199; Bunning v Cross (1978) 141 CLR…
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- R v Rockford [2015] SASCFC 51
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- [2015] SASCFC 51
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, it had to consider the application of the *Bunning v Cross* discretion, specifically whether the judge erred in failing to exclude evidence obtained by unlawful conduct on the part of the police. Secondly, the court was asked to review the sentencing decision, particularly in light of the appellant's serious medical condition and the potential impact of imprisonment on his health.
The court's reasoning on the admissibility of evidence was guided by the principle that the *Bunning v Cross* discretion is enlivened when evidence is obtained through unlawful, improper, or unfair conduct by law enforcement. While the judge had considered factors such as the seriousness of the offending and the cogency of the evidence, the appellate court found that the judge had failed to adequately weigh the "high public policy" considerations favouring exclusion. These considerations include the threat posed by law enforcement disregard for the law to the legal structure of society and the integrity of the administration of criminal justice. The court emphasised the need to prevent judicial acquiescence in unlawful police conduct and to ensure that courts are not demeaned by the use of illegally obtained evidence.
Consequently, the court allowed the appeal, excluded the evidence obtained through the unlawful search, and set aside the findings of guilt. As this evidence was the sole basis for the prosecution's case, a verdict of acquittal was entered on all counts. Regarding the appeal against sentence, the court noted that the sentencing judge had considered the appellant's ill health and the potential impact of imprisonment, but ultimately found that a custodial sentence was not unduly harsh and that a significantly lower non-parole period was not warranted given the seriousness of the offending.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KOURAKIS CJ
In R v Lobban[19] this Court held that the public policy discretion in Bunning v Cross is enlivened only when the evidence sought to be excluded is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. The Bunning v Cross discretion does not operate to punish unlawful, improper or unfair conduct on the part of law enforcement authorities. That is a matter for police disciplinary procedures or the invocation of separate criminal proceedings. It is only when such conduct results in the obtaining of relevant and admissible evidence that the Court is required to exercise its discretion whether to exclude such evidence obtained by such means. The discretion to exclude does not extend to subsequent conduct on the part of law enforcement authorities, unless the subsequent conduct is closely connected with the earlier conduct. For example, the discretion does not apply where police officers give false evidence as to how material was obtained, where the material itself was not illegally or improperly obtained.[20] The unlawful or improper conduct must be the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.[21][19] [2000] SASC 48, (2000) 77 SASR 24. [20] Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 288 – 289. [21] Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90 at [55], (2003) 6 VR 430 at 454. Consideration Against the background of this analysis of the principles underpinning the circumstances in which the Bunning v Cross discretion is enlivened and applied, I turn to a consideration of the factors relevant to this appeal. In doing so I bear in mind that the applicant must persuade the Court that the judge's decision to refrain from excluding the evidence is erroneous, in the sense of being a decision that could not be reached in the proper exercise of the discretion. The respondent submits that no error has been demonstrated in the exercise of the judge’s discretion. In exercising the discretion, the judge properly considered the seriousness of the offending, the cogency of the evidence and its probative importance to the prosecution, and his finding that the investigating police officers did not deliberately contravene the law in entering the property to undertake their search. In weighing these factors, the judge acknowledged the risk that treating cogency of evidence as a factor favouring admission where the evidence is obtained unlawfully may serve to engender the erroneous view that, if evidence is damning enough, that factor will outweigh the illegality involved in obtaining it, thereby rendering meaningless the common law and statutory limitations on the exercise by law enforcement authorities of the powers of search and entry. The factors considered by the judge were relevant to the exercise of the discretion. They weigh in favour of the admission of the evidence obtained as a result of the unlawful search and entry. However, in my view, the judge failed to have regard to what Deane J describes in Pollard as the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.