R v Sheridan - [2019] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SHERIDAN
[2019] SADC 64
Reasons for Decision of His Honour Judge Costello
30 May 2019
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Applicant applied for exclusion of evidence unlawfully obtained or a permanent stay of the prosecution - Australian Post Office employee on Kangaroo Island opened an envelope which she suspected contained drugs - she then contacted police who attended and seized the envelope and the drugs - acting on the information disclosed by the seizure of the envelope police searched two houses on Kangaroo Island, one of which was occupied by the applicant - at the applicant's house police located and seized a variety of drug paraphernalia - application for exclusion of evidence of search and seizure of the envelope and of the search and seizure of items seized during search of the two houses.
Application to exclude evidence based upon unlawful conduct (being conduct contrary to Australian Postal Corporation Act 1989 (Cth)) of Post Office employee in opening envelope and informing the police, and of the police in their secondary use of the information in searching the houses and subsequently in informing prosecution authorities at DPP - application for permanent stay upon the basis that the maintenance of the prosecution proceedings involved an unlawful secondary use of information by the prosecution contrary to the Postal Act which would thereby demean the integrity of the Court.
HELD: Use and disclosure of information by the Post Office employee and the police was unlawful - evidence admitted in the exercise of the Court's discretion - permanent stay of prosecution refused in the exercise of the Court's discretion.
District Court Criminal Rules 2014 rr 49(1)(d), 49(1)(h); Australian Postal Corporation Act 1989 (Cth) Pt 7B; Acts Interpretation Act 1901 (Cth) s 15AB, referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177; R v Rockford (2015) 122 SASR 391; R v Golja [2017] SASCFC 61; R v Nguyen (2013) 117 SASR 432; Moti v The Queen [2011] HCA 50; Jago v District Court of New South Wales (1989) 168 CLR 23, considered.

R v SHERIDAN
[2019] SADC 64
Introduction

Ngaire Louise Sheridan (‘the applicant’) is charged with the following offence:
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of the Offence
Ngaire Louise Sheridan between the 24th day of September 2017 and the 29th day of September 2017 at Kingscote and Noarlunga, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Prior to the trial the applicant made the following applications, pursuant to rr 49(1)(h) and 49(1)(d) respectively of the District Court Criminal Rules 2014, in which she sought the following orders or directions:
Rule 49(1)(h)
Application 1:
Evidence of the search of the express post envelope on 26 September 2017 be excluded;
The grounds relied upon are as follows:
1.   The opening of the envelope is unlawful or improper conduct and the evidence obtained as a result should be excluded under the public policy discretion;
2.   The disclosure of the existence of the envelope to police is unlawful conduct;
3.   The seizure of the envelope is unlawful.
Particulars:
1. Section 90N of the Australian Postal Corporation act 1989 (Cth) provides that, subject to exceptions, it is an offence to open an article of post.
2.   None of the exceptions are applicable.
3. Section 90H of the Australian Postal Corporation act 1989 (Cth) makes it unlawful, subject to exceptions, for an employee of Australia Post to disclose information gained by them in the course of their employment to third parties.
4.   On the declarations, none of the exceptions apply.
5.   Police do not have reasonable suspicion required to seize the envelope under a General Search Warrant.
6.   Any reasonable suspicion utilized by police is an unlawful secondary use of unlawfully disclosed information under 90LE of the Australian Postal Corporation act 1989 (Cth).
Application 2:
1.   Evidence obtained as a result of the search of 18 Dauncey Street Kingscote[1] on 28 September 2017 be excluded.
[1]    Premises occupied by a person known as Jan Meyers.
The grounds relied upon are as follows:
1.   Police did not have reasonable cause to suspect such as to enliven the use of a General Search Warrant;
2.   Any suspicion is tainted by the unlawful search and seizure of the envelope the subject of application 1; and
3.   Any suspicion is tainted by the unlawful disclosure of information by an employee of Australia Post and is also unlawful secondary use.
Application 3:
1.   Evidence obtained as a result of the search of 18 Vivonne Avenue Kingscote[2] on 2 October 2017 be excluded.
[2]    Premises occupied by the applicant.
The grounds relied upon are as follows:
1.   Police did not have reasonable cause to suspect such as to enliven the use of a General Search Warrant;
2.   Any suspicion is tainted by the unlawful search and seizure of the envelope the subject of application 1; and
3.   Any suspicion is tainted by the unlawful disclosure of information by an employee of Australia Post and is also unlawful secondary use.
Application 4:[3]
[3] Application 4 was not pressed because the disclosure of the CCTV footage was a disclosure made by an authorised discloser under the Act. However, the applicant submitted that the original request for the CCTV footage was unlawful which was relevant to Application 3.
1.   All evidence contained in the statement of John Magnusson dated 6 October 2017 be excluded;
2.   CCTV of Noarlunga Post Office be excluded.
The grounds relied upon are as follows:
1.   The information and CCTV are disclosed in breach of 90H of Australian Postal Corporation Act 1989 (Cth) and should be excluded in the public policy discretion.
2.   The use of the CCTV footage is unlawful secondary use.
Rule 49(1)(d)
Application 1:
1.   The Proceedings in relation to Count 3[4] on the information be permanently stayed as an abuse of process. (my emphasis)
The grounds relied upon are as follows:
1.   The institution and maintenance of the prosecution is an abuse of process as bringing the administration of justice into disrepute.
Particulars:
1.   The prosecution relies on the use of information disclosed by employees of Australia Post.
2.   The use of such information by the prosecution is unlawful under Section 90LE Australian Postal Corporations act 1989 (Cth) (‘The Act’) unless authorised by section 90LF.
3.   The requirements of section 90LF are not met.
4. The Act binds the Crown in the right of South Australia.
5.   The use of the information by the prosecution is prohibited by Commonwealth legislation.
6.   To permit the Crown in the right of South Australia to bring and maintain a prosecution in breach of a Commonwealth legislative prohibition would bring the administration of Justice in disrepute.
[4]    Counts 1 and 2 on the original Information charged a person, Jan Elizabeth Meyers with trafficking and unlawful possession. Count 3 charged Meyers and the applicant jointly with a separate trafficking offence. At the commencement of the trial Meyers pleaded guilty to count 3 in ‘full satisfaction’ of counts 1-3.
Background
The parties filed Outlines of Argument in relation to both the exclusion of evidence and the permanent stay applications, each of which included recitations of the facts leading up to and surrounding the charge.
In relation to the factual circumstances, although in their Outlines there may have been some differences in the emphasis given to certain discrete matters by each party, in my view, there were no material differences between them. I also observe that their recitations of facts were equally applicable to each of the applications.
It will therefore be convenient to record only one summary of facts, being that set out in the applicant’s Outline of Argument on her permanent stay application, which provides as follows:
Mail addressed to 'Cl- Kingscote Post Office' is kept in a certain area of the Post Office.[5]
[5] Affidavit of Julie Horsfall dated 24 April 2019 at [4].
On 26 September 2017, Clinton Grocke was sorting mail as an employee in the Kingscote Post Office.[6] Grocke shook a Nylon Express Parcel Bag and an Express Post envelope fell to the ground.[7] Grocke picked up the parcel and it smelled like chewy gum.[8]
[6] Affidavit of Clinton Grocke dated 27 November 2017 at [3].
[7] Affidavit of Clinton Grocke dated 24 April 2019 at [3].
[8] Ibid.
Grocke became suspicious of a package addressed to the Post Office because - the name on the envelope was not known to him; the package was addressed to 'C/ Kingscote Post Office'; and there was no complete address of the sender on the rear.[9]
[9] Affidavit of Clinton Grocke dated 27 November 2017 at [3].
Adding to his suspicions was the smell of chewing gum in the package. [10]
[10] Ibid at [4].
Grocke suspected that the package contained drugs.[11]
[11] Ibid.
Grocke provided the package to the manager of the Post Office, Julie Horsfall.[12] Grocke told her ‘that's not chewy in there’ and she should contact ‘Jared or Sarge’ (police).[13]
[12] Ibid at [5].
[13] Affidavit of Clinton Grocke dated 24 April 2019 at [4].
Horsfall is the licensee; licensed on behalf of Australia Post to carry out their business.[14]
[14] Affidavit of Julie Horsfall dated 24 April 2019 at [3].
Horsfall observed that the package was addressed to 'Janne Moyle Cl- Kingscote Post Office', with the sender details being only a name and 'Christies Beach'.[15]
[15] Affidavit of Julie Horsfall dated 29 September 2017 at p 2.
Horsfall felt the package and observed that it appeared to contain a small object.[16]
[16] Ibid.
Horsfall smelt the package and observed that it smelt like chewing gum.[17]
[17] Ibid.
Horsfall became suspicious that the package contained drugs. [18]
[18] Ibid.
Horsfall opened the package and observed it to contain a packet of Wrigley's Extra chewing gum.[19]
[19] Ibid.
One of the individually wrapped pieces of chewing gum had been replaced with foil.[20]
[20] Ibid.
Horsfall phoned police.[21]
[21] Ibid.
It is the policy of the Kingscote Post Office that if a suspicious item is identified it is to be brought to Horsfall's attention. She is then to contact Australia Post's security group. This has occurred on two previous occasions.[22]
[22] Affidavit of Julie Horsfall dated 24 April 2019 at [6].
However, as a result of being told to contact police on those two occasions, Horsfall now simply contacts police directly without speaking to Australia Post's security group.[23]
[23] Ibid at [7].
Horsfall considers that it would probably be impracticable for her to send any suspicious package to head office for them to examine and is unable to say how frequently suspicious mail is identified.[24]
[24] Ibid at [8].
Police Scurrah received the phone call from Horsfall at about lunchtime.[25]
[25] Affidavit of Robert Scurrah dated 23 April 2019 at [4].
Horsfall advised Police Scurrah that the Post Office had received an Express Post envelope addressed to an unknown person which she believed contained drugs.[26]
[26] Ibid at [5].
Horsfall told Police Scurrah that she had opened the envelope and had located a Wrigley's Extra Chewing Gum packet containing an item which was in some packaging amongst other individually wrapped chewing gum pieces.[27]
[27] Ibid at [5]-[6].
Horsfall advised that she believed the packaging was concealing drugs, most likely Methylamphetamine.[28]
[28] Ibid at [6].
At 4:00PM, Police Scurrah attended the Post Office and spoke to Horsfall.[29]
[29] Affidavit of Julie Horsfall dated 29 September 2017 at p 2; Affidavit of Robert Scurrah dated 6 November 2017 at [3].
Police Scurrah seized the package under the authority of his General Search Warrant.[30]
[30] Affidavit of Robert Scurrah dated 6 November 2017 at [3].
The suspicions which Police Scurrah used to execute his General Search Warrant to seize the item were - the information provided by Horsfall; it was known to him that illicit drugs and drug implements can be distributed via the postal service; and it was known to him that when people are sending drugs via the postal service, the sender can conceal drugs amongst other legal items or substances.[31]
[31] Affidavit of Robert Scurrah dated 23 April 2019 at [8].
Subsequent analysis showed the package to contain 1.68 grams of Methamphetamine.
Sometime before midday on 28 September 2017, Michael Hickman contacted the Post Office asking after a package for Jan Meyers.[32]
[32] Affidavit of Julie Horsfall dated 29 September 2017 at p 3.
Hickman advised that the package could be in the name of Moyle.[33]
[33] Ibid.
According to Horsfall, after Hickman left the post office, Horsfall called police.[34] Horsfall advised Police Scurrah that she had told Hickman that the package was not at the Post Office and that Hickman had then left the premises.[35]
[34] Affidavit of Julie Horsfall dated 24 April 2019 at [15].
[35] Affidavit of Robert Scurrah dated 23 April 2019 at [10].
According to Scurrah, at about midday, Police Scurrah received a phone call from Horsfall advising him that Hickman had attended the Post Office and attempted to collect the seized Express Post packet in addition to mail for Meyers.[36] (There is no inconsistency between the two versions, but they are stated slightly differently.)
[36] Ibid.
Jan Meyers phoned the Post Office shortly after this asking after a package, but the tracking number provided did not have a relevant parcel.[37]
[37] Affidavit of Julie Horsfall dated 29 September 2017 at pp 3-4.
Horsfall cannot remember if she advised Police about Meyers contacting the post office at this point.[38]
[38] Affidavit of Julie Horsfall dated 24 April 2019 at [16].
At 1:10PM, Police Scurrah and Police Karran attended the Meyers home address and executed a General Search Warrant for the purpose of a drug search.[39]
[39] Affidavit of Robert Scurrah dated 6 November 2017 at [11].
Police Scurrah's suspicions which led him to use his General Search Warrant to search Meyer's house included, but were not limited to, information disclosed by Horsfall.[40]
[40] Affidavit of Robert Scurrah dated 23 April 2019 at [12].
All other suspicions relied upon to search Meyers' house on 28 September 2017 consisted of information possessed by Police Scurrah prior to the events in of 26 September 2017.[41]
[41] Ibid.
Police Scurrah's reason for searching Meyers' house was to look for and seize her mobile phone to find a link between her and the seized parcel and for other indicators of drug trafficking. [42]
[42] Ibid at [13].
Police seized items including Meyers' mobile telephone.[43]
[43] Affidavit of Robert Scurrah dated 6 November 2017 at [12].
Meyers was arrested and conveyed to Kangaroo Island Police Station.[44]
[44] Ibid at [18].
Also on 28 September 2017 at 12:41PM, Police Karran sent an email to John Magnusson of Australia Post requesting CCTV footage from Noarlunga Centre Post Office of the person who posted Express Post envelop with barcode 60438159631097 from that Post Office on 25 September 2017.[45]
[45] Affidavit of Jared Karran dated 22 April 2019 at [5].
At 4:20PM, Magnusson attended the Noarlunga Post Office and obtained the relevant CCTV footage.[46]
[46] Affidavit of John Magnusson dated 6 October 2017 at p 6.
On 29 September 2017, Magnusson downloaded the footage to two DVDs.[47]
[47] Ibid.
At 8:50AM Magnusson emailed Police Karran screen shots from the CCTV footage.[48]
[48] Ibid at p 7.
Police Karran, at an unstated time but presumably before 2 October 2017, identified the accused Ngaire Sheridan in the screen shots.[49]
[49] Affidavit of Jared Karran dated 19 December 2017 at [4].
Police Karran advised Police Scurrah of the ID of the sender and showed him the image.[50]
[50] Affidavit of Jared Karran dated 22 April 2019 at [7].
Police Scurrah was also able to identify the accused Sheridan as a result of previous interactions as part of his policing duties on Kangaroo Island.[51]
[51] Affidavit of Robert Scurrah dated 23 April 2019 at [15].
On 2 October 2017, Police Scurrah and Police Karran spoke to Terrena Aplin, an associate of Sheridan, who advised that Sheridan was back on Kangaroo Island.[52]
[52] Ibid at [17].
At about 1:00PM on 2 October 2017, Police attended the home address of Sheridan and searched it under the authority of a General Search Warrant.[53]
Police Scurrah's suspicions that justified the use of his General Search Warrant at Sheridan's address were -the identification of Sheridan from the Post Office CCTV as being responsible for the sending of the seized Express Post packet; and the text messages on Meyers phone between her and Sheridan regarding the sending of the seized Express Post Packet.[54]
Police Scurrah's reason for wanting to search Sheridan's residence was to locate and seize her phone to link her to the seized Express Post package and Meyers, and for other indicators of being involved in the distribution of drugs.[55]
Sheridan's mobile phone was seized.[56]
Sheridan was conveyed to Kangaroo Island Police Station where she was charged and bailed. [57]
Sheridan's house was again searched and she was again questioned.[58] (Nothing of relevance to the charge before the court is located during this search and it is included only for completeness.)
Both Sheridan and Meyers are being prosecuted for the offence of trafficking in relation to the contents of the Express Post package.
Australia Post workers Grocke and Horsfall are neither authorised disclosers nor authorised examiners. Australia Post worker Magnusson is an authorised discloser and examiner.[59]
Clinton Grocke provided statements to police on 27 November 2017 and 24 April 2019.
Julie Horsfall Provided Statements to police on 29 September 2017 and 24 April 2019.
[53] Affidavit of Robert Scurrah dated 19 December 2017 at [3]-[4].
[54] Affidavit of Robert Scurrah dated 23 April 2019 at [19].
[55] Ibid at [20].
[56] Affidavit of Robert Scurrah dated 19 December 2017 at [6].
[57] Ibid at [7].
[58] Ibid at [8].
[59] Affidavit of Philip Nicholson dated 24 April 2019 at [8].
The Legislative Scheme
Both applications arise in the context of the Australian Postal Corporation Act 1989 (Cth) (‘the Act’). Part 7B of the Act (which covers dealings with articles and their contents) relevantly provides as follows:
90FA Meaning of authorised discloser
For the purposes of a provision of Division 2, an authorised discloser is an employee of Australia Post appointed in writing by Australia Post to make disclosures under that provision.
90FB Meaning of authorised examiner
(1)    For the purposes of a provision of Division 3, an authorised examiner is a person appointed under subsection (2) or (3) to exercise powers under that provision.
(2)    Australia Post may, by writing, appoint an employee of Australia Post to exercise powers under a provision of Division 3 (including section 90P).
(3)    Australia Post may, by writing, appoint a person who is not an employee of Australia Post to exercise powers under section 90P.
Division 2—Limits on use or disclosure of information and documents
Subdivision A—Use or disclosure by current employees of Australia Post
90G Application of Subdivision
(1)    This Subdivision applies to a person who is an employee of Australia Post and to information or a document acquired or received by the person if:
(a)the person acquired or received the information or document in the course of his or her employment as an employee of Australia Post; and
(b)the information or document:
(i)is, or relates to, an article, or some or all of the contents or substance of an article, that has been carried by post or is in the course of post; or
(ii)relates to services supplied, or intended to be supplied, to another person by Australia Post; or
(iii)relates to the affairs or personal particulars (including name or address) of another person.
(2)    Subject to subsection (3), the information or document is specially protected if subparagraph (1)(b)(i) is satisfied in relation to the information or document, whether or not subparagraph (1)(b)(ii) or (iii) is also satisfied in relation to it.
(3)    The information or document is not specially protected if:
(a)in the case of information—the information is clearly visible on, or through, the outside of the cover of the article; or
(b)in the case of a document—the document consists of the outside of the cover of the article.
90H Prohibition on use or disclosure by current employees
(1)    For the purposes of this section, the use or disclosure of the information or document by the person is prohibited conduct if the use or disclosure is not permitted by section 90J, 90K or 90L.
(2)    If the person engages in prohibited conduct, the person commits an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years.
(3)    For the purposes of a prosecution for an offence against subsection (2) relating to the use or disclosure of the information or document:
(a)the use or disclosure is to be taken not to have been permitted by section 90J, 90K or 90L unless the defendant presents or points to evidence that suggests a reasonable possibility that the use or disclosure was permitted by a provision (the authorising provision) of one of those sections; and
(b)if the defendant does so produce or point to evidence—the use or disclosure is to be taken to be permitted by the section that contains the authorising provision unless the prosecution proves, beyond reasonable doubt, that the use or disclosure was not permitted by the authorising provision.
90J Permitted use or disclosure whether or not information or document is specially protected
Application of section
(1)    This section applies to the use or disclosure of the information or document whether or not it is specially protected.
Disclosure in performance of duties
(2)    The person may use or disclose the information or document in the performance of duties as an employee of Australia Post.
Disclosure under warrants
(3)    The person may disclose the information or document as required by or under a warrant issued under a law of the Commonwealth or of a State or Territory.
Disclosure as a witness
(4)    The person may disclose the information or document as a witness summonsed to give evidence, or to produce documents, in a court of law.
Disclosure under a law of the Commonwealth
(5)    The person may disclose the information or document as required by or under a law of the Commonwealth.
Disclosure under certain laws establishing Commissions
(6)    The person may disclose the information or document as required by or under:
(a)the New South Wales Crime Commission Act 1985 of New South Wales; or
(b)the Independent Commission Against Corruption Act 1988 of New South Wales; or
(ba)the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.); or
(c)the Crime and Corruption Act 2001 of Queensland; or
(ca)the Independent Commissioner Against Corruption Act 2012 (SA); or
(d)any other prescribed law of a State or Territory that establishes a Commission or other body to conduct investigations or inquiries.
Disclosure under Australian Crime Commission legislation
(6A) The person may disclose the information or document as required by or under a law of a State if the Australian Crime Commission performs a duty or function, or exercises a power, under that law in accordance with section 55A of the Australian Crime Commission Act 2002.
Disclosure to reduce threat to life or health
(7)    The person may disclose the information or document to an officer or employee of a police force or service, fire service, ambulance service or other organisation providing emergency services if the person believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of a person.
Disclosure of suspicions to authorised ASIO officers
(8)    The person may disclose the information to an authorised ASIO officer if:
(a)the person is an authorised discloser; and
(b)the information is a reasonable suspicion that an article consists of or contains anything that is or may be relevant to security within the meaning of the ASIO Act.
Disclosure of suspicions where reasonably necessary for enforcement of criminal law
(9)    The person may disclose the information if:
(a)the person is an authorised discloser; and
(b)the information is a reasonable suspicion that an article consists of or contains anything that is or may be evidence of an offence.
…
90K Extra situations in which use or disclosure is permitted if information or document is not specially protected
Application of section
(1)    This section only applies to the use or disclosure of the information or document if it is not specially protected.
…
(5)    The person may disclose the information or document if:
(a)the person is an authorised discloser; and
(b)the disclosure is reasonably necessary for:
(i)the enforcement of the criminal law; or
(ii)the enforcement of a law imposing a pecuniary penalty; or
(iii)the protection of the public revenue.
…
Subdivision C—Secondary use or disclosure by other people
90LD Application of Subdivision
(1)    Subject to subsection (2), this Subdivision applies to a person and to information or a document acquired or received by the person if:
(a)the person acquired or received the information or document directly, or indirectly through one or more persons, from an employee or former employee of Australia Post who acquired or received the information or document in the course of his or her employment as an employee of Australia Post; and
(b)the information or document:
(i)is, or relates to, some or all of the contents or substance of an article that has been carried by post or is in the course of post; or
(ii)relates to services supplied, or intended to be supplied, to another person by Australia Post; or
(iii)relates to the affairs or personal particulars (including any address) of another person; and
(c)Subdivision A does not apply to the person and the information or document.
…
90LE Prohibition on secondary use or disclosure by other people
(1)    For the purposes of this section, the use or disclosure of the information or document by the person is prohibited conduct if the use or disclosure is not permitted by section 90LF.
(2)    If the person engages in prohibited conduct, the person commits an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years.
90LF Secondary use or disclosure permitted if for same purpose as original disclosure or use
(1)    This section applies to the use or disclosure of the information or document if the person acquired or received the information or document as a result, whether direct or indirect, of a disclosure or use (the original disclosure) of the information or document that was permitted under section 90J, 90K, 90LC or 90LCA.
(2)    The person may use or disclose the information or document if the use or disclosure is for the same purpose as the purpose for which the original disclosure was made.
…
Division 3—Limits on opening and examining articles
90M Articles to which Division applies
(1)    Subject to subsection (2), this Division applies to an article while it is in the course of post.
(2)    This Division does not apply to an article while it is out of the control (whether temporarily or otherwise) of Australia Post.
90N Prohibition on opening or examining article
(1)    For the purposes of this section, the opening of the article, or the examination of its contents, is prohibited conduct if:
(a)    the opening or examination is not permitted by any of sections 90P to 90U or section 90UB; or
(b)    the opening or examination is permitted by section 90Q or 90S but occurs otherwise than at a place determined in writing by the Board for the purpose of opening or examining the article, or a class of articles that includes the article.
(2)    A person who engages in prohibited conduct commits an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years.
90P Examining without opening
An authorised examiner may examine the article or its contents by any means that does not involve unfastening or physically interfering with the cover of the article. For example, the article or its contents may be examined by X-ray, metal detector or odour detector.
Division 5—Miscellaneous
90ZC Australia Post and employees not liable for actions in good faith under this Part
(1)    Neither Australia Post, nor an employee of Australia Post, is liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in the exercise or performance, or purported exercise or performance, of a power or duty under this Part.
…
Rule 49(1)(h) – Exclusion of Evidence

On this application the applicant seeks to exclude:
i)     The evidence relating to the examination, search and seizure of the envelope at the Kangaroo Island Post Office;
ii)     The evidence obtained as a result of the search of 18 Dauncey Street, Kingscote;[60] and
iii)    The evidence obtained as a result of the search of 18 Vivonne Avenue, Kingscote.[61]
[60] Premises occupied by Ms Meyers.
[61] Premises occupied by the applicant.
Applicant’s Submissions on Search and Seizure
I trust that I do no disrespect to the applicant’s argument for the exclusion of evidence, if I paraphrase it in the following way.
The provisions of Part 7B of the Act constitute a code dealing with postal material and the limits on the use and disclosure of such material.
Subject to specified exceptions, the opening of the envelope by Ms Horsfall was unlawful, being conduct prohibited by the Act.[62] None of the specified exceptions in the Act apply to the conduct of Ms Horsfall in opening the envelope.[63]
[62] s 90N.
[63] See ss 90M(2), 90P, 90Q, 90R, 90U, 90UA & 90UB.
Subject to specified exceptions, it was, in turn, unlawful for Ms Horsfall to disclose information, about the envelope that she had opened, to Sergeant Scurrah.[64] None of the specified exemptions applied to Ms Horsfall’s conduct in the disclosure of the contents of the envelope to Sergeant Scurrah.[65]
[64] ss 90G and 90H.
[65] s 90J.
In particular the disclosure of the information to Sergeant Scurrah was not protected by s 90J(2) because in so disclosing she was not performing her duties as an employee of Australia Post. Her duties, upon being alerted to the possibility of suspicious mail, required her to contact Australia Posts Security Group (APSG). APSG has, in its ranks, security personnel who are authorised to examine and open mail and to disclose information gleaned from any such examination to appropriate law enforcement personnel, such as Sergeant Scurrah.[66]
[66] Affidavit of Philip Nicholson dated 24 April 2019.
Upon his arrival at the Post Office, the use by Sergeant Scurrah of his General Search Warrant (GSW) to seize and search the envelope and its contents was unlawful, being an unlawful secondary use of the information.[67]
[67] ss 90LD and 90LE.
Thereafter, the use of this information to search the two houses also constituted an unlawful secondary use of the information which had been obtained and disclosed to him unlawfully.[68] None of the specified exceptions in the Act operate to permit the unlawful use/disclosure of the information by Sergeant Scurrah.[69]
[68] Ibid.
[69] ss 90LF, 90J and 90K.
Further, the search of the applicant’s house was also tainted by the unlawful request by Sergeant Karran for the CCTV footage. Finally, any disclosure of information by Ms Horsfall via a subpoena was not covered by s 90J(4) because she was not, in her affidavit, disclosing information as a witness.
Prosecution Submissions on Search and Seizure
In response, the DPP submitted that, even though the conduct of Horsfall in opening the envelope was unlawful, the disclosure of the information to Sergeant Scurrah was permitted, being a disclosure by her in the performance of her duties as an employee, pursuant to s 90J(2).
In the alternative, the information was lawfully disclosed when she swore an affidavit affirming that she had provided a statement to Sergeant Scurrah after she was subpoenaed to give evidence.
Despite any illegality involved in opening the envelope, if Ms Horsfall acted lawfully in disclosing information to the police, then, so it was submitted, the secondary use of the information was permitted.
In any event, even if her disclosure to Sergeant Scurrah was unlawful, it did not necessarily follow that the receipt and use of the information by the police was also unlawful. It was not unlawful in circumstances where the police have ‘innocently’ used information which was provided to them in good faith and which they would have been entitled to receive had it come from an authorised discloser.[70]
Discussion
[70] Prosecutions Outline on Exclusion of Evidence at [79]-[81].
It may be accepted that the conduct of Ms Horsfall in opening the envelope was unlawful. Upon that assumption, the issues that fall for determination on this application are:
1       Was the subsequent disclosure of information by Ms Horsfall to police unlawful?; and
2       Was the use and/or disclosure thereafter of that information by the police unlawful?
3       If the use and disclosure of this information was unlawful, should evidence of it be excluded in the exercise of the Court’s discretion.
Horsfall Disclosure
Ms Horsfall’s disclosure may relevantly be permitted, pursuant to s 90J, where:
a) The disclosure was made in the performance of her duties as an employee of Australia Post; or
b) The disclosure occurred in her capacity as a witness summonsed to give evidence in a court of law.
Employee
Section 90J appears to be structured such that disclosures are permissible when made in a range of different circumstances which include:
i)      by an employee in the course of the performance of general employment duties;
ii)     where the person is required by other legislation to do so; and
iii)    various other situations where legitimate suspicions are raised in the mind of the person on matters of safety, security and general good governance.
In short, the exceptions to the limits on disclosure appear to be drawn in very wide terms. So understood, at first glance, disclosure in the performance of duties as an employee might have been intended to cover all disclosures (including unauthorised disclosures) provided that they were made for legitimate and honest reasons.
However, if Parliament had intended s 90J(2) to be construed in that manner, it would have been arguably unnecessary to expressly limit the disclosure of information, relating to articles reasonably suspected of being the subject of an offence, to only authorised disclosers.
Accordingly, in my view, s 90J(2) should be construed as permitting (but being limited to) such disclosures of information, as the employee’s duties properly authorise the worker to disclose. So understood, Ms Horsfall’s duties would not have authorised her to make her disclosure. Rather, her duties authorised her, upon becoming suspicious, only to contact the authorised personnel in the ASPG who then could examine the article and thereafter liaise with police.
Witness
I am not persuaded that the disclosure by Ms Horsfall, of the information in her affidavit of 24 April 2019, was a lawful disclosure.
In my opinion, the disclosure contemplated by s 90J(4) is intended only to encompass a disclosure by a person who is actually a witness in the sense that such a person is giving sworn evidence in a court.
In any event, even if it was lawful, I do not see how such a disclosure, coming in April 2019, could relevantly impact on the lawfulness or otherwise of disclosure which led the police to seize the envelope and/or conduct the searches of the two houses in 2017.
Finally, Ms Horsfall’s disclosure might also have been permitted pursuant to s 90K. However, s 90K is expressly limited to a range of disclosures in circumstances and to persons which do not apply to Ms Horsfall’s disclosure to Sergeant Scurrah.
In all the circumstances, I am satisfied that the disclosure of the information by Ms Horsfall was unlawful.
Police Secondary Use/Disclosure
The use and/or disclosure by Sergeant Scurrah of information disclosed to him by Ms Horsfall is governed by ss 90LD and 90LE.
Consistently with the terms of s 90LD, the information acquired by him was acquired from a person (Ms Horsfall) who was an employee of Australia Post and who, in turn, acquired the information in the course of her employment. The information relates to the contents of the envelope.
The use of such information is, as I have already observed, primarily prohibited but may be permitted where the disclosure, in this case, to the police falls within one of the exceptions listed in ss 90J or 90K.
For the reasons articulated, the original disclosure by Ms Horsfall was not permitted by ss 90J or 90K. Accordingly, the use and/or disclosure by Sergeant Scurrah of information disclosed to him by Ms Horsfall was not permitted and was, in turn, unlawful.
Explanatory Memorandum
Prior to considering the question of discretion, there is one further matter that I need to determine. During the course of submissions on these issues I was invited to consider the Explanatory Memorandum to the Act in order to assist me in ascertaining the meaning of a number of these sections.
Section 15AB of the Acts Interpretation Act 1901 (Cth) permits a court to have recourse to material which does not form part of the Act in a range of circumstances.
Section 15AB relevantly provides:
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
…
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
Having considered these provisions, I am not persuaded that it is necessary to have recourse to s 15AB. In summary, I am satisfied the provisions here are being used in their ordinary meaning (s 15AB(1)(a)) and that there is no ambiguity or particular obscurity about the provisions which a careful reading of them does not reveal (s 15AB(1)(b)). In such circumstances, s 15AB(3) has no particular relevance.
Discretion
In situations where evidence has been unlawfully obtained by the police, the courts retain an overriding discretion to admit or exclude such evidence.
It is unnecessary to rehearse in any detail the principles governing the exercise of a court’s discretion to exclude otherwise relevant and admissible evidence, based upon public policy considerations, where that evidence has been unlawfully or unfairly obtained. It will suffice to record that in considering this aspect of the application, I have had regard to the extensive analysis on the issue in a number of decisions in both the Supreme Court and the High Court.[71]
[71] R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177; R v Rockford (2015) 122 SASR 391; R v Golja [2017] SASCFC 61.
The following relevant considerations which have been distilled from those cases will largely inform the exercise of a judge’s discretion, namely:
·       the nature of the offence charged;
·       the probative value of the evidence sought to be excluded;
·       whether the conduct of the police (and here postal workers[72]) was deliberate or resulted from a mistake;
·       the ease with which those responsible might have complied with the law in procuring the evidence in question;
·       the legislative intention in relation to the law that is said to have been infringed;
·       whether the conduct is encouraged or tolerated by those in higher authority in the police force (and again here the post office authorities) or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.
[72] Although I acknowledge the force of the DPP’s argument that the discretion is only enlivened where the impropriety is that of law enforcement agencies and not civilians, for the reasons which follow, it is ultimately unnecessary for me to determine that question on this application.
In undertaking the balancing exercise necessarily involved in determining whether to exercise my discretion to exclude the evidence, I have had regard to all the factors, in favour of and against the exclusion of the evidence, relied upon by the parties, with respect to the conduct of Ms Horsfall, Sergeant Scurrah and Sergeant Karran, which factors include the following:
The Applicant
· The Act tightly regulates the opening and examination of articles and the disclosure of information. The Act is designed to protect the integrity of the postal system and the privacy of its users;
·       The unlawfulness in question encompasses a course of conduct rather than an isolated act involving the examination and opening of an article, the subsequent disclosure to police and then the secondary use of that information by police;
·       The unlawfulness is not isolated. Horsfall has previously opened mail unlawfully. She also contacted police unlawfully on a number of occasions.
· The unlawful conduct is sustained and continuing. On 24 April statements were obtained by police from Grocke and Horsfall which disclose information in breach of 90H of the Act.
·       Although trafficking is a serious offence, the quantity of drugs involved is at the lower end, especially when compared with the quantities encountered in Rockford and Golja.
The Prosecution
·       At the relevant time, Ms Horsfall’s decision to make contact with the local police and to advise them of the discovery of suspected drugs in a suspicious envelope was made on her flawed understanding that this was what she was required by the law to do in such a situation. There was, in that sense, no deliberate breach of the law on her part.
·       Ms Horsfall’s disclosure of information has not affected the cogency of the evidence.
·       Ms Horsfall’s conduct does not demonstrate a deliberate ‘cutting of corners’.
·       Further, in the event that Ms Horsfall had contacted Security Personnel to advise of the existence of this envelope the outcome may arguably have been the same.
·       Sergeant Scurrah was operating under the belief that he was acting lawfully. The information was provided to him. He did not ask for such information nor seek it out. There can be no suggestion that it was consciously unlawfully procured. He did not believe that Ms Horsfall may have been acting unlawfully in providing such information. There was no deliberate disregard for the law or a conscious flouting of the limitations on the exercise of his powers.
·       The conduct of the police did not affect the cogency of the evidence.
·       Trafficking in a controlled drug is a serious offence. The potential flow-on effect of the harm caused by trafficking of illicit drugs is obvious.
·       The conduct of the police is not ‘typical’ of the unlawful or improper police conduct which the discretion is aimed at discouraging. The use here emanated from the seizure of an item which Sergeant Scurrah was effectively invited to collect. In the circumstances, no issue arises which impinges on the civil liberties referred to in the search of people’s homes, cars or their person.
·       This is not a case of a widespread or systematic misunderstanding by police as to the limits of their power.
Taking these matters into account, I am satisfied that the evidence should be admitted for the following reasons:
·       The offence is serious.
·       The evidence sought to be excluded is highly probative of the charge.
·       Although the conduct was deliberate, it arose out of genuine, albeit arguably erroneous, beliefs upon the part of Ms Horsfall and the police that their conduct was lawful. In short, they did not consciously behave in a deliberately unlawful manner.
·       The conduct of Ms Horsfall and the police did not affect the cogency of the evidence.
·       There would, in the circumstances, have been no particular difficulty for Ms Horsfall or the police to comply with the law if they had understood their conduct to be unlawful.
·       The legislative intention is to prohibit the use and sale of illicit drugs.
·       There is no evidence that upon being apprised of the need to refer matters to APSG rather than police, Ms Horsfall will now not do so or that there is any widespread view in the police force that the police, rather than the ASPG, should be contacted in these circumstances.
In exercising my discretion, I have been particularly conscious of the ‘high public policy’ identified by Deane J in Pollard and confirmed by Stanley J in Rockford which favours the exclusion of evidence procured by unlawful conduct by police. I have also been conscious of the need identified in R v Nguyen[73] for the courts, in certain circumstances, to censure the excesses of power by which evidence is sometimes procured.
[73] (2013) 117 SASR 432.
Having said that, I did not detect in the behaviour of either Ms Horsfall or the police any overt defiance of the will of the legislature or calculated disregard of the common law referred to in Bunning v Cross. To the contrary, here I would characterise their actions as conduct stemming from honest but arguably mistaken beliefs as to the law governing the search, seizure and subsequent dealings with postal material.
I therefore reiterate my view, having undertaken the requisite balancing exercise adverted to by Stephen and Aickin JJ in Bunning v Cross, that the balance lies in favour of admitting the evidence.
The application to exclude the evidence is refused.
Rule 49(1)(d) – Permanent Stay
The applicant summarised her application for a permanent stay in the following terms:
1.   The Director of Public Prosecutions is seeking to use information disclosed by employees of Australia Post to maintain the prosecution for count 3 on the information. Such use of the information is contrary to Commonwealth Law. The Australian Postal Corporation Act 1989 (Cth) (‘the Act’) prohibits the use of the information, unless certain criteria are met. Those criteria have not been met.
2.   To permit the prosecution to continue brings the administration of Justice into disrepute by permitting the State executive, in the form of the DPP on behalf of the Crown, to disregard the laws Commonwealth Parliament.
3.   Such conduct undermines the rule of law and is an abuse of process as the use of the Court's processes in this manner brings the administration of justice into disrepute.
In developing her submission the applicant relied upon the observations of the High Court in Moti v The Queen where the Court said:[74]
The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz…two fundamental policy considerations affect abuse of process in criminal proceedings. First, ‘the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike’...Secondly, ‘unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice’...Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.
[74] [2011] HCA 50 at [57].

The applicant complained that the prosecution case is largely, if not wholly, based upon unlawfully obtained evidence and that the very leading of evidence by the Crown perpetuates the illegality because the process of leading such evidence is itself an unlawful secondary use of information. The applicant contended that to entertain a trial in these circumstances demeans the integrity of the Court.
For its part, the DPP contended that if the prosecution was stayed as a result of acts which though unlawful were not intentionally so, a stay on that basis would itself undermine confidence in the justice system.
Discussion
The question as to whether a criminal proceeding is to be stayed involves the weighing of a range of factors which include the legitimate public interest in the determination of serious charges, the conviction of guilty persons, fairness to the accused and the maintenance of public confidence in the administration of justice.[75]
[75] Jago v District Court of New South Wales (1989) 168 CLR 23 at p 33.
I am not persuaded that to permit the prosecution to continue would bring the administration of justice into disrepute. There are numerous examples of courts entertaining criminal proceedings where the charges have their genesis in apparently unlawful behaviour, which behaviour is connived at, if not actually contrived, by the prosecuting authorities. The question which ultimately arises in such cases is whether the illegality of the conduct of the law enforcement authorities is so grave as to dictate that the evidence should be excluded, upon the basis that the conviction of the accused would be bought at ‘too high a price’.
I readily acknowledge that there is a difference between many of those cases involving police impropriety and the case at bar where the illegality in the latter is said to also taint the actual conduct of the DPP in prosecuting the trial. Even if that be so, I do not consider that when deciding, whether permitting such a course to occur will demean the court or bring the administration of justice into disrepute, one can divorce the illegality of the conduct from the context in which that conduct is alleged to have arisen.
Understood in this way, the context under consideration reveals conduct which, although unlawful, is conduct arising in largely innocent circumstances and conduct which at no stage involved any conscious impropriety on the part of Ms Horsfall or the police.
In these circumstances, I do not accept that if the trial proceeds it would tend to undermine either the public confidence in the courts or the system of justice.
Weighing the factors identified earlier, and in the exercise of my discretion, I decline to order a stay of the proceedings.
The application for a permanent stay is refused.