R v Rockford
[2014] SADC 199
•27 November 2014
District Court of South Australia
(Criminal)
R v ROCKFORD
Criminal Trial by Judge Alone
[2014] SADC 199
Reasons for Ruling and Verdict of His Honour Judge Soulio
27 November 2014
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ENTRY
Accused charged with one count of cultivating a commercial quantity of a controlled plant contrary to s 33B(2) of the Controlled Substances Act, one count of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act, and one count of possessing prescribed equipment, contrary to s 33(LA) of the Controlled Substances Act.
The accused issued an application pursuant to Rule 49(1)(H) DCCR, seeking exclusion of all evidence obtained as a result of the search of the property, on the basis that the evidence was unlawfully obtained, because the search of the premises was unlawful. Held – search was unlawful but discretion to exclude evidence not exercised.
Controlled Substances Act 1984 ss 32, 33; Summary Offences Act 1953 ss 52, 68; District Court Criminal Rules 2014 r 49, referred to.
R v Romeo (1982) 30 SASR 243; Halliday v Nevill & Anor (1984) 155 CLR 1; M v AJ (1989) 44 A Crim R 373; Police v Dafov (2008) 102 SASR 8; Kuru v State of New South Wales [2008] HCA 26; Dinan v Brereton [1960] SASR 101; Wheare v Police [2008] SASC 13; Coco v The Queen (1994) 179 CLR 427; State of New South Wales v Corbett (2007) 230 CLR 606; Bunning v Cross (1977-78) 141 CLR 54; R v Chapman [2001] SASC 113; Pressler v Holzberger (1989) 44 A Crim R 261; R v McKinnon [2007] SADC 132; R v Nguyen [2013] SASCFC 91; R v Cavallaro [2011] SADC 15, considered.
CRIMINAL LAW - PARTICULAR OFFENCES
Accused elected for trial by judge alone following unsuccessful ruling on application to exclude evidence.
Verdict – Guilty on all three counts.
Juries Act 1927 s 7, referred to.
R v ROCKFORD
[2014] SADC 199
The accused is charged with the offences of cultivating a commercial quantity of a controlled plant, contrary to s 33B(2) of the Controlled Substances Act 1984 (‘CSA’); trafficking a large commercial quantity of a controlled drug contrary to s 32(1) CSA; and possessing prescribed equipment, contrary to s 33LA CSA.
The background to the charges, by way of summary, is that on 13 February 2011 police attended at a number of properties on Lobethal Road, Ashton, after receiving information that the accused was growing cannabis on a property in the area. Police gained access to the accused’s property, before ascertaining that it was his property, by climbing over a gate which was either locked, or had the appearance of being locked. Upon entering the property police noticed a vehicle which they were able to identify as belonging to a person associated with the accused.
Having ascertained that the property was associated with the accused, police then observed items in an open equipment shed which appeared to them to relate to the growing of cannabis hydroponically. They also noticed a humming emanating from a locked shed which they associated with functioning hydroponic equipment. Police broke into the locked shed and there located two hydroponic rooms, each containing nine mature cannabis plants, 24 cannabis seedlings, and two small cannabis plants in pots. Police also located about 3.4kg of dried cannabis, as well as hydroponic and other prescribed equipment used to grow cannabis.
The accused’s finger prints were located on a box of disposable gloves found in the shed, and on a light shade, and his DNA was located on used gloves, a coffee mug, and a heat sealer located inside the shed. The accused was identified by the owner of the property from photographs, as the tenant renting the premises, although the premises were rented by the accused using a false name. The accused was arrested by police at Adelaide Airport on 16 February 2011, after returning from interstate. A key located in his luggage, opened the padlock on the gate to the Lobethal Road property.
Pre-trial Issue – Application to Exclude Evidence
The accused issued an application pursuant to Rule 49(1)(H) of the District Court Criminal Rules 2014 seeking exclusion of all evidence obtained as a result of the search of the accused’s property, on the basis that the evidence was unlawfully obtained, because the search of the premises was unlawful. The assertion that the search was unlawful was made on the basis of an assertion that the initial entry onto the property was unlawful.
Power to Search
The search of the premises was conducted by Detective Hanssen and Detective Moore. Each gave evidence on the voir dire.
The power to search potentially derived from s 52(9) CSA, s 68(1)(b) of the Summary Offences Act (‘SOA’) or under the powers provided to Detective Hanssen who was the holder of a general search warrant.
It was not contended by either police officer, or by counsel for the Director of Public Prosecution (‘DPP’), that the police officers held a reasonable suspicion, justifying a search, at the time they initially entered the property.
It may have been open to assert that the initial entry onto the property was made pursuant to the powers provided by the general search warrant, and authorised because the provision of information to police officers regarding the accused’s criminal activities justified a search of the property. However public interest immunity was claimed in respect of the information upon which police were acting at the time of the initial entry onto the property. Each of the police officers, and counsel for the DPP, specifically eschewed reliance upon the general search warrant. To do otherwise may well have required disclosure of greater detail of the information which had been provided to police, than police were willing to disclose.
The basis for the formation of a reasonable suspicion as to the existence of a hydroponically grown cannabis crop, was not controversial given that once police officers had entered the property, they saw items in the open equipment shed, and had heard the humming of the hydroponic equipment.
The sole issue for consideration was whether the entry onto the property, in the first instance, was lawful.
The Evidence
Detective Hanssen
At the time of the search Detective Hanssen was the investigating officer, and a detective sergeant in the drug investigation branch. He had been a police officer for some 20 years. He had received information about the accused growing cannabis at a property at Ashton. Ultimately Detective Hanssen disclosed, to a limited extent, the information upon which police were acting, namely, that he had received information that the accused was growing cannabis on a property situated adjacent to Lobethal Road, Ashton, and that he should look for a property located somewhere opposite a black iron fence on the southern side of Lobethal Road.
The area of the search was depicted in photographs received into evidence on the voir dire, namely an aerial photograph and photographs showing a dirt track leading north off Lobethal Road.
Detective Hanssen said he was unaware of how many properties were located adjacent to that dirt track, when he first set off along that track. He said that his main purpose was to inspect the properties situated on that track in an endeavour to identify vehicles and registration numbers in order to ascertain whether any of the properties were occupied by the accused. Detective Hanssen said that he had had dealings with the accused prior to the date of the search, and was familiar with the identity of members of the accused’s family and the accused’s associates, and the cars used by those people.
Detective Hanssen said that he and Detective Moore inspected three other properties prior to entering what turned out to be the accused’s property. Detective Hanssen said his sole initial purpose was to identify which property, if any, was associated with the accused in order to be able to conduct further inquiries. It became apparent that two of the three properties were not associated with the accused. The third property simply contained a large open shed and there was no means of identifying any association with the accused.
Detective Hanssen agreed that he and Detective Moore sought, in so far as was possible, to avoid being seen, as they did not wish to alert the accused that they were in the area, or to alert any potential associates who might inform the accused that the police officers were investigating in the area. No one was spoken to at any of the three properties. Detective Hanssen conceded that if he had been approached and an inquiry made as to his reason for being on any of the properties, he intended to say that he was a tourist, and had become lost.
Detective Hanssen said that after visiting the first three properties, he then saw another track leading from the dirt track. He parked their unmarked police vehicle 30 or 40 metres back up that track and walked towards a gate on the track. There was no identifying sign or mark on the gate. There was no sign saying anything like “private property’ or “keep out”. He said that the gate across the track looked like a fire track gate or paddock gate.
Detective Hanssen said the gate had the appearance of being locked. He said a chain was wrapped around the post and gate, and there were a couple of padlocks, so on initial inspection it looked like it was locked. He said that on closer inspection he noticed that the chain could be removed without unlocking the padlocks. He said that he did not remove the chain as there was no need to do so, and that as a precaution the chain was left in situ so that if anyone came up the track, they would not know that people were at the property, or had been at the property. He said that he climbed over the gate. He said that at that stage his intention was simply to identify whether in fact the gate led onto private property, and if so, whether there was a house there. Detective Hanssen positively stated that Detective Moore entered the property by climbing over the gate, as Detective Hanssen had done.
Detective Hanssen said he believed he generally had tacit consent to enter a private property, and to attend at the front door of an address, to make initial inquiries. If the accused, or any known associates had approached him, he said he may have been satisfied he was at the correct property, and then executed his general search warrant. He said that he differentiated between a locked gate of a suburban residential property which would signal that his tacit consent to enter the property ceased at the gate, and a gate on a rural track, such as he encountered, which, on his opinion, would not indicate a withdrawal of the tacit consent to enter.
Detective Hanssen said that the information he had received which ultimately led to the search, was not sufficiently specific to enable him to conduct a Lands Titles Office search to identify the property. He said it was a matter of finding the property first and working back. He had subsequently ascertained that the accused was renting the property under a false name.
In cross-examination Detective Hanssen agreed that he did not have grounds to execute a general search warrant when he entered the property occupied by the accused. He also agreed that he did not want anyone knowing he was searching for a property associated with the accused. He did not have undercover authority but said that he did not require such authority. By the time he entered the accused’s property, he had not necessarily ruled out the possibility that the other properties were associated with accused, but did not have any information to suggest that they were.
Detective Hanssen agreed that the gate to the accused’s property was configured in such a way as to convey to anyone approaching, that it was locked. He said that it did not convey to him however that the person did not want him to enter the property. He maintained that on closer inspection it was evident that the gate was not locked, and he formed the opinion that there was no indication that he was prohibited from entering. In any event, he said that if the gate had been padlocked, he believed he would have had tacit consent to climb over the gate, if he was making inquiries at that address and knew that a house was there. He said that with rural properties, he would be entitled to climb over the fence to make inquiries, but would leave if he was asked to do so.
Detective Hanssen denied knowing that at the time he climbed over the gate, he was necessarily entering a private property. As soon as he realised he and his fellow officer were on a residential property, that is, when he saw there was a house on the property, he made a decision to approach the house and disclose that he was a police officer. He described the process in which he was engaged as part of an investigation process, attempting to obtain intelligence to confirm that he and Detective Moore were at the right location. He said that once he realised that the address was one associated with the accused, confirmed by checking the registration numbers of vehicles on the property, he executed his general search warrant.
It was put to Detective Hanssen that in his initial declaration, contrary to his evidence in court, he said “I entered the premises over a locked gate”. He accepted that he had said that in the earlier statement. He sought to explain that in evidence by saying that there was a chain around the gate fitted with two padlocks, and that was what he meant by saying the gate was locked. He accepted that the existence of a locked gate is an important consideration when determining whether tacit consent to enter had been revoked by the owner of a property.
Detective Hanssen described the chain as being wrapped around the edge of the gate and the fence post, and described a knot or ball of chain going through the gate and over the post several times. He seized the chain and padlocks. He said that the two padlocks were locked together and, in effect, formed a loop with the chain.
Counsel for the accused called for production of the locks and chain. What was produced were two padlocks locked together with a single chain link attached to each. The balance of the chain was not present. Detective Hanssen was unable to account for the absence of the chain and said that when he seized the chain it was intact. He did not know where the chain was now. He said that the exhibit had been logged as two padlocks, and offered the explanation that the chain had been padlocked,[1] but then the chain cut off prior to the exhibit being logged. He denied that the reason the chain was missing was that it had to be cut to be removed from the gate before police officers entered the property.
Detective Moore
[1] As shown in photograph 77 of Exhibit VDP4.
Detective Moore was a detective brevet sergeant in the drug task force, and had been a police officer since 2001. He attended at the property with Detective Hanssen. His evidence was consistent with that of Detective Hanssen as to the approach they had taken, in that he said that during the investigation of the Lobethal Road properties they had made a point of remaining discreet, as they were unaware whether the accused had associates in the area, and did not want to declare themselves. He said they were looking for a property with links, direct or indirect, to the accused or his associates.
As to the search of the accused’s property, he said that the police car was left a short distance from the gate and he and Detective Moore approached the gate on foot. He said that the padlocks were locked into the chain links and the chain was wrapped from the post through the gate so that it appeared to be locked. He said further observations confirmed to him that it was in fact not locked. He said that rather than jumping over the gate, he removed the chain and went through the gate, and then re-threaded the chain around the gate and fence. He said that at the time they went through the gate he could not see any buildings, and did not know what was on the other side of the gate. He said that he did not see the need for the execution of a general search warrant and did not consider that he would have had authority to execute a general search warrant at that point.
Detective Moore said that he believed that he had a common law authority to enter through the gate, and was not searching the property, but rather gathering information. He said that if he had been approached and asked to leave he would have done so.
Detective Moore said that as he and Detective Hanssen walked through the property he noticed a house and the end of shed, and formed the view that he had and Detective Hanssen had been potentially exposed to any occupants. They approached the house and knocked on the doors. They then approached the shed looking for any occupants of the property, and observed two vehicles on the property. He said that he was told by Detective Hanssen that a green utility on the property belonged to the accused. Detective Moore and Detective Hanssen then made observations, to which I have referred, as to the presence of the hydroponic equipment, and the humming of fans from the shed, consistent with cannabis cultivation. He said Detective Hanssen called for other officers to assist and he believed by that time they had authority to search under the general search warrant.
In cross-examination Detective Moore said that at the time of entering the property he believed he was using a common law authority to do so, and said that members of the general public would have the same right. He ultimately conceded that by the manner in which he and Detective Hanssen had approached all of the properties, they had denied the owners the opportunity to ask them to leave.
Detective Moore was not able to identify a situation where a member of the public could lawfully go on to a property, intentionally concealing their presence. He agreed that he was, for the purposes of the common law, the equivalent of a member of the public at the time of entering the property.
Detective Moore said that upon approaching the accused’s property, the unmarked police vehicle was put off the side of the road. He accepted that in his initial statement he had said “we decided to secrete the car”. He also accepted that the inference to be drawn from the fact that a person had set up the gate to appear locked, was that it would negate vehicle access. He agreed that a possible inference was that the owner did not want people on the premises.
Detective Moore said that he did not climb over the gate. He said he was hoping to have a look around and conceal from any occupant, the fact that police officers were there. He agreed that if the gate had been locked he would nevertheless have climbed over the gate. He accepted that it could be argued that the gate was secured by the padlocks.
Detective Moore agreed that in an earlier statement he had said that “at the bottom of the track was a large gate secured by a heavy chain and two padlocks” and that was consistent with his description of the doors to the shed being padlocked – the evidence being that they were in fact locked with padlocks.
Detective Moore said that he recalled the padlock and chain being removed without any need to cut the chain. The chain was present when he photographed the exhibit. He did not recall cutting the chain from the locks, or seeing anyone else do so. He said that the chain may have been cut off and just the padlocks seized as exhibits because of the weight and length of the chains. He said that the padlocks were logged as exhibits, in order to enable fingerprints and DNA to be taken, and to check, in the event there were any keys subsequently discovered in the possession of the accused or others, whether such keys fitted the padlocks.
The Accused
Mr Rockford said that he was living at the Lobethal Road property as at February 2011. Access to the property from Lobethal Road was through the gate and along a dirt track. He said that the gate in question was secured with a padlock. He described it as being secured with a chain, which went around a loop, through the gate itself and onto a post so that it formed a circle. One padlock was put into the other, and pushed shut. He said the padlocks were always kept locked and that he and his partner had a key to the padlock.
Mr Rockford said that prior to the police search in February, upon leaving the property in order to travel to the airport to go to Sydney, his partner got out of the car and unlocked the gate. After he drove through she locked the gate again. He said that he saw her do so whilst looking in his side mirror, and was sure that she locked it because they were going away for an extended period. He said that when he was arrested at the airport on his return from Sydney, the key to the padlock was in his possession.
In cross-examination Mr Rockford said that no one else had access to the gate and that the key that his partner had would have been in her purse. He agreed that there were two cars at the property belonging to his step-son and step-daughter’s boyfriend, but said he was using those cars and they simply could not have been removed while he was away. He said that there was no one attending the property to tend the cannabis crop while he was away, as the hydroponic growing process was automated, and there was no need for anyone to attend.
Findings
I find that the accused intended that the gate be locked when he left the property. That is consistent with the presence of the key to the padlock being present in his luggage, when he was arrested at the airport. I find that the gate was secured in such a fashion as to be locked, or at the very least, to give the impression that it was locked. That is consistent with the evidence of Detective Hanssen, which I accept, that he climbed over the gate; and consistent with his acceptance of a statement made in his declaration that the gate was padlocked.[2]
[2] Detective Hanssen of course had said in evidence that the gate appeared to be padlocked but upon closer examination it transpired that it was not in fact effectively padlocked. He said, however, that even had it been padlocked he would have climbed over the gate.
I find that, although there were no signs prohibiting entry, the appearance of the gate so described meant that there was no implied licence or tacit approval to enter upon the property. Even had there been such an implied licence, it did not extend to authorising entry upon the property to obtain information or evidence linking the accused to the property.
I am puzzled by the evidence of Detective Moore to the contrary, namely, that he undid the chain, that he and Detective Hanssen walked through the gate, and that he replaced the chain, as best he could, as it had initially appeared, so as not to alert anyone of the presence of the police officers on the property, or that police officers had accessed the property. I am unable to reconcile his evidence with that of Detective Hanssen. Ultimately it seems to me that Detective Moore must be mistaken in his memory as to the means of access, and it is likely that Detective Hanssen is mistaken in his memory as to the state of the chain, or has engaged in a faulty reconstruction.
I am somewhat troubled by the accused’s suggestion that he was able to observe his partner padlocking the gate, by looking in his driver’s side mirror, when logically she would have been on the external side of the gate, presumably facing the gate and post, with her back to the car. The accused’s partner was not called to give evidence.
However, there was an illegal operation going on on the property, and the accused was leaving the property for a week. Logic might suggest that the gate would have been secured.
I find that the police officers did not cut the chain which was wrapped around and securing the gate at the time they made the initial entry onto the property. To have done so was entirely inconsistent with the admitted approach of the police officers, namely to surreptitiously inspect the properties they were interested in, and to have cut the chain at the outset, before they knew that the property was one associated with the accused, would have been entirely contrary to the approach taken to the investigation of the properties generally. There was no need to cut the chain at that stage. The police officers were engaged in a surreptitious investigation. I accept the evidence of Detective Hanssen that the police officers climbed over the gate.
It is likely that if the gate was in fact padlocked, the chain was cut in order to enable police vehicles to enter the property once the hydroponic crop had been discovered. At that stage of the investigation, the particular evidentiary interest was in the padlocks, to ascertain whether there were keys fitting the padlocks in the possession of the accused.
The Law
A search may be lawful, if police in fact had authority to conduct the search, but mistakenly believed that their authority derived from an invalid source.[3] Here, however, for the reasons to which I have referred, I do not consider that the entry onto the property was authorised by the general search warrant held by Detective Hanssen.
[3] R v Romeo (1982) 30 SASR 243 p 276-278 per Cox J.
As to whether a police officer has an implied licence from the occupier of premises to enter the driveway of those premises, in Halliday v Nevill, in relation to suburban premises, the court said:[4]
While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked (cf. Edwards v. Railway Executive). The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.
…
The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property.
[4] Halliday v Nevill & Anor (1984) 155 CLR 1.
In Halliday, the court held that the police officer had an implied licence from the owner of the premises to be on the driveway, and that accordingly an arrest effected on the driveway was lawful, and said:[5]
There is no suggestion that the driveway was closed off by a locked gate or any other obstruction or that there was any notice or other indication advising either visitors generally or a particular class or type of visitor that intrusion upon the open driveway was forbidden. That being so, a variety of persons with a variety of legitimate purposes had, as a matter of law, an implied licence from the occupier to go upon the driveway. The question which arises is whether, in those circumstances, the proper inference as a matter of law is that a member of the police force had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway. The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative. That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land. Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer's rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute. ... All that that conclusion involves is that, in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it.
[5] Halliday v Nevill & Anor (1984) 155 CLR 1 p 8.
In M v AJ,[6] police officers, upon receiving a complaint from a neighbour regarding the discharge of a firearm, visited the juvenile offender’s house, and took a statement from him. Upon appeal, he submitted that the police were trespassers, and that any admissible evidence had been obtained illegally. Neasey J held that the search power under the Tasmanian Police Offences Act did not provide an unlimited right of entry, and that there was no specific or implied authorisation for police officers who attended the property and approached the front door, to then proceed around to the back of the house to locate the offender, and conduct an interview. The decision was based, in part, upon an acceptance of evidence that in order to progress from the front of the house to the back door it was necessary to travel through a lattice fence in which there was an opening and past protruding trees and shrubs, and that such access was not ordinarily used by the occupants of the house, or by tradesmen in the ordinary course. Neasey J said:[7]
The learned magistrate accepted the father's evidence concerning the nature of the access from front to rear, and other relevant features of the property, and in my view the reasonable finding which should have been made on that evidence was that there was no implied licence in the police officers to proceed from the front to the back door, and accordingly that at the time they questioned the applicant they were trespassers.
[6] M v AJ (1989) 44 A Crim R 373.
[7] M v AJ (1989) 44 A Crim R 373 at [13].
The issue of entry by police onto private property was also considered in Police v Dafov,[8] where the court cited Kuru v State of New South Wales, where the High Court addressed the common law position, saying:[9]
As was pointed out in this Court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable.
…
In Halliday v Nevill, this Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the person or property of the occupier, or the occupier’s guests. But as Brennan J pointed out in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is “a contest between public authority and the security of private dwellings.
[8] Police v Dafov (2008) 102 SASR 8.
[9] Kuru v State of New South Wales [2008] HCA 26 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [43], [45] (footnotes omitted).
Consent to entry may be implied where a person enters a property, including entry onto the driveway of a dwelling house, for a lawful purpose. However, except in cases provided for by common law or statute, the police have no special rights to enter land. A police officer who enters or remains on private property, without the implied or express licence of the person in possession of the property, or entitled to that possession, commits a trespass unless entering or remaining on the premises is authorised or excused by law.
The common law also permits entry onto land without the consent of the occupier in certain circumstances and various statutes confer power to enter premises without the consent of the occupier.
There is a presumption that, in the absence of an express provision or a clear implication to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct. An example of a rebuttal of the presumption by statute may be found in Dinan v Brereton,[10] where s 75 SOA, giving a general power of arrest to the police, was found by necessary implication to permit a police officer to enter on private land to effect an arrest.
[10] Dinan v Brereton [1960] SASR 101. See also Wheare v Police [2008] SASC 13.
In Coco v The Queen,[11] the High Court had occasion to consider this fundamental principle, and summarised the position as follows: [12]
Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon:
“[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.”
In England, Lord Browne-Wilkinson has expressed the view that the presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required. That approach is consistent with statements of principle made by this Court, to which we shall shortly refer. An insistence on the necessity for express words is in conformity with earlier judicial statements in England which call for express authorization by statute of any abrogation or curtailment of the citizen’s common law rights or immunities.
...
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. (citations omitted)
[11] Coco v The Queen (1994) 179 CLR 427.
[12] Coco v The Queen (1994) 179 CLR 427 at 435-437.
In Kuru,[13] the High Court had occasion to consider whether a provision of the Crimes Act 1900 (NSW) authorised police to enter and remain on private property, notwithstanding a direct request that they leave. Gleeson CJ, Gummow, Kirby and Hayne JJ confirmed the need for clear words to erode the common law protection. In that respect their Honours observed:[14]
To the extent that, in the end, there was any ambiguity about the meaning and ambit of the authority provided to police by ss 357F and 357H to remain in the appellant’s flat after he had made it clear that he was requiring them to leave, such ambiguity must be resolved in favour of the foregoing construction. This is because of the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person’s residence. That principle has been recognised and upheld by this Court on numerous occasions. It derives from the principles of the common law of England. Indeed, it appears to be a principle against which the provisions of ss 357F and 357H of the Act were written. It defends an important civil right in our society. If Parliament were to deprive persons of such a right, or to diminish that right, conventional canons of statutory construction require that it must do so clearly.
[13] Kuru v State of New South Wales [2008] HCA 26.
[14] Kuru v State of New South Wales [2008] HCA 26 at [37] (footnotes omitted).
In the course of the discussion, their Honours drew on the judgment of Kirby J in State of New South Wales v Corbett.[15] Although the observations of Kirby J were made in the context of a challenge to a search warrant, the reasons that lie behind the Court’s approach are equally relevant to statutory powers of entry. In that respect Kirby J observed:[16]
What are the reasons that lie behind this rule of strictness? They include:
(1)The protection of the ordinary quiet and tranquillity of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people;
(2)The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures;
(3)The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures;
(4)The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and
(5)The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds.
[15] State of New South Wales v Corbett (2007) 230 CLR 606.
[16] State of New South Wales v Corbett (2007) 230 CLR 606 at [22].
Was the Initial Entry Lawful?
In the present case the evidence of the police officers was that their purpose was not to communicate with the occupier of the land, but rather to gather information. Rather than seeking out the occupant of the property in question, and indeed the occupants of the three properties they had visited earlier, they sought to avoid contact with the occupants. In effect, the police officers were searching the premises in order to obtain evidence or information connecting the accused with the premises.
In my view, the implied or tacit licence to enter onto land, does not extend to the provision of a tacit consent for a person, absent the existence of a special authority, to come onto the land to conduct such an inspection surreptitiously, for the purpose of obtaining such evidence or information.
Here, counsel for the DPP submitted that a finding that the gate was locked, or that it was intended to convey the impression that it was locked, was not fatal to a finding that the police officers had an implied licence to enter the property. That submission was made on the basis that the boundaries of the property were not defined, the gate was not marked, there was uncertainty as to whether the land on the internal side of the gate was private property, and the police officers did not know whether they were entering onto private property.
It is apparent from the evidence of the police officers that had there been a house visible from the gate, which was apparently a rural residential or farm property, the police officers would have taken the same steps, and made the same search to determine whether there were vehicles registered in the name of the accused or his associates, or other evidence connecting the accused to the property. The conclusion to be drawn from the evidence of the police officers is that they were engaged upon a surreptitious exercise designed to obtain information to identify the property belonging to the accused.
Whilst I accept the evidence of Detective Hanssen and Detective Moore that they believed, erroneously as I have found, that they had tacit consent to go on to the property for the purpose of ascertaining whether the property was occupied by or associated with the accused, I find that the entry onto the accused’s property was in fact unlawful. The evidence which was subsequently located is admissible, but there is a discretion to exclude that evidence.
The Exercise of the Discretion
Counsel for the accused argued strongly that the evidence ought to be excluded in the exercise of the Court’s discretion, particularly were I to find that the police officers had deliberately fabricated evidence relating to the circumstances of their initial enter onto the accused’s property.
I do not find that the police officers fabricated their evidence.
Counsel for the DPP submitted that the following factors weigh against excluding evidence obtained from an illegal search:
·Where the unlawfulness by the police was not deliberate;
·Where the police did not act upon trite information;
·Where police actions were not of a wilful or malicious nature;
·Where the cogency of the evidence was unaffected;
·Where the evidence is of considerable probative value in relation to a serious charge.
Counsel for the prosecution submitted that it would be inappropriate to exercise the discretion to exclude the evidence of the items found on the accused’s property, given the nature of the items discovered, the seriousness of the offence of large scale cultivation of cannabis, the evidence of commerciality, and the effect on the community of such offending.
Where there is a finding that the search was unlawful, the court must proceed to decide whether to exclude the evidence pursuant to the public policy discretion referred to in Bunning v Cross.[17] There the balancing exercise was described by Stephen and Aickin JJ in the following terms:[18]
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[17] Bunning v Cross (1977-78) 141 CLR 54.
[18] Bunning v Cross (1977-78) 141 CLR 54 p 74.
The starting point in considering the exercise of discretion to admit evidence, the product of an unlawful search, is perhaps to be found in the following remarks in Bunning v Cross:[19]
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguard the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignoble part" - per Holmes J in Olmstead v United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[19] Bunning v Cross (1977-78) 141 CLR 54 p 77 & 78.
In R v Chapman, referring to earlier authority, Williams J said:[20]
In the course of his judgment in R v Armstrong (1989) 53 SASR 25, King CJ roundly criticised the arrogation by police officers to themselves of such high-handed purported authority. Whilst the circumstances of that case differed in some respects from those of the instant case, the key principle is identical. If police officers deliberately exceed their authority by embarking on unlawful and unauthorised conduct which impinges upon the normal rights of a citizen then they cannot be heard to complain if the courts, in conformity with the approach enunciated in Bunning v Cross (1978) 141 CLR 54 and R v Ireland (1970) 126 CLR 321, exclude evidence obtained in the course of such activity.
[20] R v Chapman [2001] SASC 113 at [37].
Recently, in R v Nguyen, the court, in excluding evidence obtained unlawfully said:[21]
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends.
…
The Court exercises its discretion to exclude the evidence of the appellant’s possession of heroin and methylamphetamine on 30 July 2011. We do so because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA.
[21] R v Nguyen [2013] SASCFC 91 at [41].
The observations of Spender J in Pressler v Holzberger are also apposite:[22]
Where the legislature has defined the circumstances in which a person's liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation should be tolerated or excused. Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens.
[22] Pressler v Holzberger (1989) 44 A Crim R 261 p 272.
I have found that the investigating police officers did not deliberately exceed their authority, but rather proceeded on a genuine, if mistaken, view as to the extent of their authority.
The cogency of the evidence discovered as a result of the search had not been affected by any illegality or impropriety, and the evidence sought to be impugned is of obvious significance to the prosecution case.
I bear in mind the observations in Bunning v Cross that:[23]
To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the erroneous view that if such evidence is damning enough that will of itself atone for the illegality involved in procuring it.
[23] Bunning v Cross (1977-78) 141 CLR 54 p 79.
I bear in mind that unauthorised searches that gather no evidence will rarely be the subject of scrutiny; it is only those that reveal cogent evidence which are the subject of consideration by the Court and that accordingly, if every unauthorised search that reveals cogent evidence were to be excused, that would effectively render the statutory pre-requisites for a search redundant.
As was observed in R v McKinnon:[24]
If an unauthorised search could be justified whenever a police officer "gets lucky", to adopt the expression of defence counsel, and obtains cogent evidence, that would effectively render the statutory prerequisites for a search otiose. The practical result would be that if a search is conducted and nothing is found, the incident would be forgotten, but if evidence is found, then the illegality should be overlooked. In that event, the legislative safeguards would be meaningless. As Williams J observed in R v Chapman the legislature has set quite deliberate limits upon the police powers to search under the Controlled Substances Act 1984 and the Summary Offences Act 1953.
[24] R v McKinnon [2007] SADC 132 at [43].
I also bear in mind the submission that it is relevant to consider the fact that, whilst serious, this offending is of the category which can be described as a victimless offence although only in the sense that:[25]
… the offence is not one where there is a personal victim who might feel aggrieved that the crime against him received no redress because of lax police investigative work.
[25] R v Cavallaro [2011] SADC 15 at [56].
Conclusion
The circumstances of this case present a difficult decision in the exercise of the discretion. The actions of the police officers in entering the property, and the searches that followed, were, because of the erroneous assumption of an implied licence to enter the property, unlawful.
However, having regard to the cogency of the evidence, the fact that the approach by the officers arose, as I have found, as a result of an honest misunderstanding about the right to initially enter the premises, rather than a deliberate flouting of such powers, the fact that the illegality of the search did not contaminate the evidence, and the seriousness of the offences disclosed as a result, I conclude that, in the exercise of my discretion, the application should be refused, and the evidence admitted.
The Trial
The accused sought an abridgment of time within which to make application pursuant to s 7 of the Juries Act 1927, for the trial to proceed before a judge sitting without a jury. The application was made by consent. I granted the application.
Counsel for the DPP tendered, by consent, statements of witnesses and additional documents. No additional witnesses were called. No case was presented on behalf of the accused.
I direct myself as to the onus of proof, the elements of the offences, and as to the approach to be taken in determining the issues, including the ultimate issue as to whether the guilt of the accused has been proven in respect of each of the charges beyond a reasonable doubt.
As I have said, arising out of items located at Lot 12 Lobethal Road, Ashton, the accused faces three charges:
·Cultivating a commercial quantity of a controlled plant, contrary to s 33B(2) CSA;
·Trafficking a large commercial quantity of a controlled plant, contrary to s 32(1) CSA; and
·Possessing prescribed equipment, contrary to s 33LA CSA.
Evidence
Attendance at the Property
During the afternoon of Sunday 13 February 2011 Detectives Hanssen and Moore attended an area in Ashton in the Adelaide Hills. They had received information that the accused was growing cannabis on a property in the area.[26]
[26] Declaration of Detective Hanssen 1 June 2011 p 1. Declaration of Detective Moore 23 May 2011, p 2.
After checking several properties and vehicle registrations of cars they observed, they followed a dirt track that led to Lot 12, Lobethal Road. Part way along the dirt track was a gate that appeared to be padlocked. They continued beyond the gate and located a house and shed at the end of the track.[27]
[27] Declaration of Detective Hanssen 22 October 2014 p 2-3. Declaration of Detective Moore 22 October 2014 p 3.
The officers attempted to raise the occupants but no one was at home.[28] The officers then approached the shed area. They observed two vehicles that were parked under an open garage structure next to the shed, a green utility registered to a business owned by the step-son of the accused, and Ford motor vehicle registered to the partner of the step-daughter of the accused.[29]
[28] Declaration of Detective Hanssen 22 October 2014 p 3. Declaration of Detective Moore 22 October 2014 p 3.
[29] Declaration of Detective Hanssen 1 June 2011 p 2. Declaration of Detective Hanssen 22 October 2014 p 3. Declaration of Detective Moore 23 May 2011 p 2. Photographs MAH2, photographs 23-27.
In the same garage area the officers also observed assorted equipment commonly used in the growing of cannabis. When they passed the closed shed they heard the sound of fans commonly associated with operating hydroponic equipment.[30] Detective Hanssen executed his General Search Warrant and entry was gained to the shed through a padlocked door.[31]
The Cannabis Crop and Associated Materials
[30] Declaration of Detective Hanssen 1 June 2011 p 2-3. Declaration of Detective Moore 23 May 2011 p 2. Photographs MAH2, photographs 28-32.
[31] Declaration of Detective Hanssen 1 June 2011 p 3. Declaration of Detective Hanssen 22 October 2014 p 3-4. Declaration of Detective Moore 22 October 2014 p 4.
Inside the shed police found a room that contained a water tank and an assortment of equipment consistent with the hydroponic growing of cannabis (nominated the ‘ante room’).[32] In the same room was a foam box containing 557.0gm of female cannabis plant material, predominantly female flowering top pieces but also leaf material, most of which was finely ground but there were some whole pieces of female flowering head material, some whole leaves and some thin stem pieces.[33] There was also a green rubbish bin that contained 2728.5gm of predominantly female flowering top pieces, but also some leaf material. Most of it was finely ground but there was at least one whole leaf and some thin stem pieces. While female cannabis head is generally distributed without being finely ground, cannabis can be used and sold in this form and would have similar street value as if sold in its usual form.[34]
[32] Declaration of Detective Hanssen 1 June 2011 p 3. Declaration of Detective Moore 23 May 2011 p 3. Photographs MAH2, photographs 6. Photographs GSM3, photographs 1-12.
[33] Certificate of Analysis of Gregory Webber 15 February 2011. Declaration of Tanya Lenore McKew 22 October 2014.
[34] Certificate of Analysis of Gregory Webber 15 February 2011. Declaration of Tanya Lenore McKew 22 October 2014. Declaration of Daniel Steve Parish 22 October 2014.
Directly ahead of the entrance to the shed was a door which led to a grow room. The room was set up as a room used to grow cannabis hydroponically, including with lighting hanging from the ceiling. Inside that grow room were two small cannabis plants in individual black pots and a seedling incubator containing 24 cannabis seedlings. This room was nominated as Grow Room 1 and the 26 plants were marked Exhibit LRA9.[35]
[35] Declaration of Detective Hanssen 1 June 2011 p 3. Declaration of Detective Moore 23 May 2011 p 3 & 8. Certificate of Analysis of Gregory Webber 15 February 2011. Photographs MAH2, photographs 10 & 11. Photographs GSM3, photographs 14-24.
To the right of that room was another room in which there were several air conditioning units, carbon filters, ducting and drying racks, (nominated the ‘A/C room’).[36]
[36] Declaration of Detective Hanssen 1 June 2011 p 3. Photographs MAH2, photographs 12-15. Photographs GSM3, photographs 27-30.
Entry to the shed was also gained through a lift-up door, which was secured with two padlocks. Inside that door was a large water tank, electrical circuit boards, CO2 cylinders, scales (Exhibit LRA53), a heat sealing machine and empty cryovac plastic bags (Exhibit LRA50).[37] In the same room two small amounts of dried cannabis were found, a sealed cryovac bag containing 78.0gm of female cannabis plant material, (Exhibit LRA54) predominantly female flowering top pieces with a very small amount of leaf material, and a red bucket that contained 37.5gm of cannabis leaf and female flower material on cut stem pieces (Exhibit LRA55).[38]
[37] Declaration of Detective Hanssen 1 June 2011 p 3. Declaration of Detective Moore 23 May 2011 p 3 & 9. Photographs MAH2, photographs 16-20. Photographs GSM3, photographs 54-69.
[38] Declaration of Detective Moore 23 May 2011 p 9.Certificate of Analysis of Gregory Webber 15 February 2011. Declaration of Tanya Lenore McKew 22 October 2014. Photographs GSM3, photographs 70-72, 78 & 79.
At the back of that room were two doorways leading to other rooms. The room to the left was set up as a grow room with hydroponic equipment and nine cannabis plants growing in individual pots. Lighting and fans were operating. This room was nominated as Grow Room 2.[39]
[39] Declaration of Detective Hanssen 1 June 2011 p 3. Declaration of Detective Moore 23 May 2011 p 3. Certificate of Analysis of Gregory Webber 15 February 2011. Photographs GSM3, photographs 31-41, 53, 73.
The room to the right was identical to the room on the left and contained nine cannabis plants growing in individual pots under hydroponic conditions. The fans were operating but the lighting was not. This room was nominated as Grow Room 3.[40]
[40] Declaration of Detective Hanssen 1 June 2011 p 3-4. Declaration of Detective Moore 23 May 2011 p 3. Certificate of Analysis of Gregory Webber 15 February 2011. Photographs MAH2, photographs 21-22. Photographs GSM3, photographs 42-52, 75.
Evidence Implicating the Accused
Property Inside the House
The house on the property was also searched. Inside the house were pictures of the accused, his partner, and their family. There were also pictures of a Porsche motor vehicle, which was previously owned by the accused, and numerous documents in the names of the accused and his partner.[41]
Landlord
[41] Declaration of Detective Hanssen 1 June 2011 p 4. Photographs MAH2, photographs 40-63, 68-74, 77-80.
The owner of the property at Lot 12, Lobethal Road Ashton, Nicholas Hicks, had rented the property to a person he knew as Barry James Stubbs and as Graham. Mr Hicks met ‘Graham’ and his partner in 2004 through a gym they attended.[42] Mr Hicks bought the Ashton property in late 2007 or early 2008 and ‘Graham’ moved in two or three months later. ‘Graham’ rented it for $580 per week. The initial lease was from 1/02/08 to 31/01/09 and ‘Graham’ was still renting it in February 2011.[43]
[42] Declaration of Nicholas McFarlane Hicks 7 March 2012 p 2-3.
[43] Declaration of Nicholas McFarlane Hicks 7 March 2012 p 2-3.
On 13 December 2011 Mr Hicks participated in a photographic identification procedure whereby he was asked to identify the person he knew as ‘Graham’ who was renting the property. Mr Hicks identified photograph 6 as that person,[44] and it was agreed that photograph 6 was a photograph of the accused.
Cars
[44] Declaration of Nicholas McFarlane Hicks 7 March 2012 p 1-2.
A green Holden utility parked at the property was registered to The Adelaide Arborists Pty Ltd, the business of the accused’s step-son.[45] A Ford motor vehicle parked at the property was registered to Geoffrey Bolton, the partner of the accused’s step-daughter.[46]
Key
[45] Extracts from entry in the register of motor vehicles. Declaration of Detective Hanssen 1 June 2011 p 2.
[46] Extracts from entry in the register of motor vehicles. Declaration of Detective Hanssen 1 June 2011 p 2.
When the accused was arrested a key was located in his luggage which was seized. It was later found to open one of the padlocks on the gate at the Ashton property.[47]
DNA and Fingerprints
[47] Declaration of Justin Francis Thompson 16 June 2011 p 2-3. Declaration of Detective Moore 23 May 2011 p 12.
Some exhibits were submitted to FSSA for DNA analysis, along with a buccal swab from the accused. The results were as follows:[48]
[48] Declaration of Damien Abarno 16 April 2014. Declaration of Detective Moore 23 May 2011 p 8-9.
Item Location DNA profile Contributor/weighting LRA3.1 (PPMS item 6)
2 used latex gloves
Ante room of shed - inside green bin containing cannabis LRA3 Single source profile 4.4 billion in favour of hypothesis that Rockford is a contributor. LRA5 (PPMS item 8)
3 used latex gloves
Ante room of shed - inside a bag Mixed profile: 2 contributors 7.5 billion in favour of hypothesis that Rockford is a contributor. LRA43 (PPMS item 46)
Coffee mug
Nutrient room in shed Single source profile Unknown, unidentified male LRA44 (PPMS item 47)
Coffee mug
Nutrient room in shed Single source profile 7.8 billion in favour of hypothesis that Rockford is a contributor LRA45 (PPMS 48)
San Pellegrino bottle
Nutrient room in shed Single source profile Unknown, unidentified male LRA50 (PPMS 53)
Heat sealer
Nutrient room in shed Mixed profile: 4 contributors 2.1 billion in favour of hypothesis that Rockford is a contributor LRA54.1 Nutrient room in shed. Cryovac bag containing cannabis LRA54 Mixed profile: 2 contributors Rockford excluded
Hydroponic equipment was examined at the scene for the presence of fingerprints. Other items were seized and submitted for fingerprint analysis. The results extracted from the resulting report, were as follows:
·A fingerprint on a box of Chux gloves located in the nutrient room is identical to Rockford’s right middle finger print.
·A finger print on a light shade from the “nursery” contains detail that is in agreement with it being Rockford’s right middle finger, however there is insufficient detail for a conclusive opinion.
·A finger print on a light shade from the “nursery” contains detail that is in agreement with it being Rockford’s left middle finger, however there is insufficient detail for a conclusive opinion.
·A fingerprint on a light shade in Grow Room 1 was made by a person other than Rockford.
·A fingerprint on a light shade in Grow Room 2 is identical to the right ring finger of Rockford.
·There were other unidentifiable fingerprints on other light shades in the two grow rooms.[49]
Accused’s Whereabouts and Arrest
[49] Declaration of Gregory Charles Turner 24 May 2011. Declaration of Vanessa Ha 14 June 2011.
At the time of the search, the accused and his partner were interstate. The accused was arrested at Adelaide Airport on his return to Adelaide on 16 February 2011.[50]
[50] Declaration of Detective Hanssen 1 June 2011 p 5.
Verdict
Having admitted the evidence resulting from the police search of the accused’s property, I find the accused guilty of Count 1, cultivating a commercial quantity of a controlled plant, contrary to s 33B(2) CSA, Count 2, trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) CSA, and Count 3, possessing prescribed equipment, contrary to s 33(LA) CSA.
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