R v Ronald James Bobridge No. DCCRM-02-801

[2003] SADC 12

R -v- BOBRIDGE
[2003] SADC 12

JUDGE ROBERTSON
CRIMINAL

The accused is charged with Possession of Cannabis for Sale.  The accused has made an application for exclusion of some of the evidence to be introduced by the Crown.  Part of the application of the accused is for the exclusion of the evidence of cannabis located in the accused’s premises as a result of a search that was undertaken by the Police on 11 October 2001.

The Police attended at the premises of the accused at about 6.00 pm on that day. After entry into the premises the Police located three empty black pots in a room in the house and four large plastic shopping bags containing cannabis buds.  The room also contained some hydroponic growing equipment. At an interview conducted later at the Port Adelaide Police Station the accused indicated that cannabis was for personal use.  He had earlier indicated this at the house premises but this was not recorded by the two police officers who attended. 

It was the evidence of the Police Officer Vormelker that he and Detective Vincent attended at the front door of the premises and spoke to the accused.  He said that he  indicated to the accused that they had received a report that there was cannabis plants or cannabis on the premises.  He said that the accused denied that there was cannabis in the house.  The Police Officer said in evidence that he asked the accused whether they could enter the premises and have a look around.  It is his evidence that the accused acceded to this request.  He said that on entering the house the accused then led the police to a room in the house where the cannabis was located.

Constable Vormelker said he made notes of the conversation about a half an hour later at the Police Station. Those notes were admitted into evidence. He said that he did not show those notes to Detective Vincent, the officer who attended at the premises with him. He did not read out those notes to the accused when the accused was interviewed on video tape at the Police Station as required by Section 74D of the Summary Offences Act 1953. There were also other contraventions of the obligations required by Section 74D of that Act. Constable Vormelker indicated that his failure to comply with Section 74D was an oversight on his part.

The accused gave evidence.  He said that the Police attended at his front door and he denied having any cannabis in the house.  He said that when one of the Police Officers asked him if they could enter the house and look around he said that he asked if they had a search warrant.   The accused said that the officer said that they could obtain one, and he would leave the other officer at the premises while one was obtained.  He said that the officer said that all they wanted to do was look around and go on their way.  His evidence was that he did not want the police to enter but on being told that a search warrant would be obtained he agreed to let them inside.

Detective Vincent, who was also present, gave evidence but he could not recall any of the conversation that took place at the door with the accused.  He said that Constable Vormelker did not show him the notes that he made of the conversation.  He said it was standard police practice that an accompanying police officer be shown the recorded notes of an interview.  He said he could offer no reason why he did not verify the notes.  

I found certain aspects of Constable Vormelker’s evidence to be unconvincing.  In particular his evidence of the conversation at the front door.  I do not feel that I can rely upon it.  I do not suggest that he set out to deceive me.  I felt that there was a degree of uncertainty about his evidence on this topic albeit that he made some notes of the conversation.

I formed the view that the officer had no independent recollection of the conversation. He needed to rely upon the notes he made some half an hour later. There is no mention in the notes of a conversation regarding a warrant. However I am not prepared to rely on these notes as expressing an accurate recording of the conversation. I have reached this conclusion for a number of reasons. In the first instance, the officer’s failure to comply with best police practice on a number of occasions during this evening and to comply with the obligations under Section 74D does not engender confidence in his methodology. It suggests that on this occasion his approach to his tasks were, to say the least, lax. Further, he stated in his evidence that he deliberately chose not to include in his notes a conversation which took place a short time after the Police entered the house. In that conversation, the accused said the cannabis was for personal use and he used it to assist in coping with the grief following the loss of his wife. The officer’s explanation for his failure to include that conversation caused me some concern. I did not think he intended to deliberately mislead me. However, I felt that there he was unconsciously reconstructing to explain the absence from his notes of a rather important conversation. The accused had stated that the cannabis was for personal use and offered a reason for using it. The fact that he chose not to include this conversation is a further factor which causes me to lack confidence in the accuracy of the notes.

Of course, there were a number of opportunities for the verification of the accuracy of the notes which the officer failed to take.  As I said, he failed to have Detective Vincent verify the notes.  He could offer no explanation for his failure other than he overlooked it.  He failed to have notes read over to the accused during the Record of Interview.  I should mention here, that another example of the Constable’s failure to adopt best police practices was that he had an opportunity to make the notes at the time of the conversation at the premises but he chose not to do so.  Indeed, it was likely that there was an audio cassette tape recorder in the police car but this was not used.   The failure to produce the tape recorder was indicative of the attitude of Constable Vormelker that the call to Crime Stoppers, which initiated the investigation, was a hoax. The video interview commenced about eighteen minutes after the Constable said he made his notes at the Police Station.  His evidence was that his failure to read the  notes at the time was an oversight.  All of these factors, as I said, indicate a lax approach. This lax approach to his duties together with other factors which I have identified leads me to the conclusion that I am not prepared to rely on the notes as an accurate recording of the conversation at the door.

As I said, I formed the view that the officer had no independent recollection of the conversation at the door and was relying entirely upon the notes to give his evidence.  In cross-examination he was given the opportunity to deny that any conversation of the nature described by the accused took place but he chose to respond by stating that he could not remember that such conversation happened.  He offered as a reason why he said he could not remember the accused asking for a warrant is that if the accused had done so then it would have been in his notes.  That evidence further demonstrates that he did not have an independent recollection of the conversation.  Eventually he denied that this conversation regarding the warrant took place but in my view that needs to be seen against his earlier evidence that he could not remember the conversation.  His entire evidence on this topic was unconvincing.

On the other hand I felt that the accused, in giving his evidence on what took place at the door and in particular the conversation at the door was convincing.  Indeed, I felt I could rely on his evidence generally.  Furthermore his evidence that the Police Officer said that  he could obtain a warrant and that whilst doing so the other officer would remain at the premises was a description of what the police practice would be in such circumstances where one Police Officer was to leave to obtain a warrant.  His evidence is to be measured against the background that he has not been in trouble with the police before and has never had the experience of being confronted by the police at his door.  The practice of the Police in such circumstances is not something that he would be expected to have experienced in the past.

I am prepared to accept that the accused was told that the Police could obtain a warrant if it was required, but that all they wanted to do was to look around and be off. This was a misrepresentation. The police did not believe that they held sufficient information to indicate the use of Detective Vincent’s general search warrant or that they could obtain a warrant to search under the Controlled Substances Act. I have formed the view that such a misrepresentation was expressed in the context that it was not expected by them that they would find any cannabis. I accept the evidence of Constable Vormelker that he felt the Crime Stoppers call was a hoax. I think the police were simply taking a short cut in order that they could dispose of the Crime Stopper’s Report, not expecting that anything would come of it. Nevertheless, it did misrepresent the true position. I accept the evidence of the accused that as he felt a warrant would be forthcoming that the search was inevitable and as a result he agreed that the police could enter the premises.

As a result of my conclusions I find that the entry into the premises was illegal.  Entry was gained as a result of a misrepresentation.  There was no true consent on the part of the accused to allow the police to enter the premises.  The illegal entry into the premises led to the location of the cannabis.  The search was illegal and therefore the evidence of the cannabis on the premises was illegal.

Having concluded that the evidence regarding the cannabis was obtained illegally the next question which arises is whether I should exercise the public policy discretion and still allow the evidence to be led.  The factors which need to be taken into account in considering the exercise of the discretion in these circumstances are set out in Bunning v Cross (1978-1979) 141 CLR 54 (at pages 78-80 inclusive).

Mr Barclay, Counsel for the Crown conceded, rightly in my opinion, that if I found that entry was gained by a misrepresentation then the discretion should not be exercised to permit the evidence to be led.  As I said, I agree.  In weighing up the competing public interest factors I consider that the fact that the evidence was obtained as a result of the misrepresentation outweighs the other public interest factors for the inclusion of the evidence.  Whatever the reason for making the misrepresentation such conduct should not be sanctioned by a Court by permitting the evidence to be admitted.  The public interest requires that such evidence be excluded.

In conclusion I should say, that I am alive to the fact that the exclusion of the evidence is likely to bring the prosecution to an end.  However, in my opinion, as I said, a Court should not sanction the obtaining of evidence in the manner that has occurred here.

I grant the application and order the evidence of the cannabis located on the premises be excluded.