R v Rockford

Case [2015] SASCFC 51

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
Case
[2015] SASCFC 51
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CaseChat Overview and Summary

The case of R v Rockford concerned an appeal against a judge's decision to admit evidence obtained through an unlawful search and entry by law enforcement authorities. The appellant, Rockford, was charged with drug offences, including taking part in the production and sale of a prohibited substance. The central dispute revolved around whether the evidence gathered from Rockford's property, despite the unlawful means of its acquisition, should have been excluded from trial.

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

KOURAKIS CJ
I would exclude the evidence. I do so because I consider it necessary, as it was in R v Nguyen,[26] to censure the excesses of police powers by which the evidence was obtained in order to better secure compliance with the limitations on the exercise of the powers of search and entry conferred on police. In addition, I consider it necessary so that the administration of criminal justice is not brought into disrepute by statements of judicial disapproval of the unlawful procuring of evidence by police appearing hollow and insincere. [26] [2013] SASCFC 91 at [42], (2013) 117 SASR 432 at 443.Conclusion I would grant permission to appeal. I would allow the appeal. I would set aside the findings of guilt on all three counts. As the excluded evidence is the only evidence against the appellant, I would enter a verdict of acquittal on all three counts.Appeal against sentence 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 CSA and one count of taking part in the sale of cannabis contrary to s 32(1)(d) of the CSA. The first offence of taking part in the production of a prohibited substance carried a maximum penalty of two years imprisonment or a fine of $2,000 or both. The remaining charges each carried a maximum penalty of 10 years imprisonment or a fine of $50,000 or both. The charges related to cannabis being cultivated hydroponically at three residential premises and 7.8 kilograms of cannabis material sent to New South Wales by surface mail. There were a number of people involved in the cultivation. This was a well-organised and sophisticated commercial operation intended to generate substantial profits. The appellant was at the centre of this organisation. The potential gain from the appellant’s offending ranged between $33,000 and $2,244,000. The appellant pleaded guilty on 1 November 2010. He subsequently fled the jurisdiction. After absconding, the appellant was diagnosed with bowel cancer. He was returning to Adelaide for treatment when he was arrested on 30 December 2013. The appellant submitted to the sentencing judge that he was concerned about the level of care he had received and would receive in custody for the cancer. After hearing evidence from officers of the Department of Correctional Services and the Prison Health Service, the sentencing judge found that the prison system has the capacity to provide adequate care for the appellant during a term of imprisonment. This was conceded before the sentencing judge by the appellant’s counsel. The sentencing judge said:[27]Your counsel put to me that any imprisonment term imposed upon you would have a harsher effect on you than on someone in good health because of your medical needs and the possible delay in receiving some of your medication from correctional staff. I have taken all of those submissions into account, and having regard to all of those matters put to me, I do not consider that it would be unduly harsh for you to serve time in prison because of your ill health. In my view, a suspended sentence would not be warranted solely due to s 38(2c) of the Criminal Law (Sentencing) Act. Your counsel has asked that I consider fixing a lower than usual non-parole period, given your terminal illness.I have taken all relevant matters into account, including your ill health and the effect of any imprisonment term imposed upon you in fixing your sentence. Given the seriousness of your offending and the circumstances surrounding it, I do not think that it would be appropriate for me to fix a non-parole period in your case that is significantly lower than usual.[27] Sentencing Remarks of Judge Slattery delivered 28 August 2014 at [40] – [41].

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.