R v Singh - [2014] SADC 218

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SINGH
[2014] SADC 218
Reasons for Ruling of His Honour Judge Slattery
11 November 2014
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - EVIDENCE UNLAWFULLY OR IRREGULARLY OBTAINED
Application by the accused Singh to exclude all evidence of the finding of an imitation .44 magnum revolver from the trial.
The basis of this application is that the police did not have a basis to form a suspicion on reasonable grounds that a firearm was on the accused's premises and so they had no lawful authority to enter the premises to conduct the search. The information regarding the revolver had come from an anonymous source through 'Crime Stoppers'.
Held:
1. Application to exclude evidence is dismissed.
Firearms Act 1977 (SA) ss 11(1), 32(3); Controlled Substances Act 1984 (SA) s 52(9), referred to.
Ercegovic v Higgins (1987) 45 SASR 189; R v Nguyen (2013) 11 SASR 532; R v Rogers [2011] SASR 307; R Romeo (1982) 30 SASR 243; Bunning v Cross (1977-1978) 14 CLR 54, considered.

R v SINGH
[2014] SADC 218

On 11 November 2014 I dismissed the application of the accused under paragraph 3 of his Rule 49 Notice. I said that I would publish further reasons in due course. These are those reasons.
The accused Kuldip Tony Singh is charged on Information with the offence of possessing a firearm without a licence contrary to section 11(1) of the Firearms Act 1977 (SA). The particulars of the offence were that, on 15 March 2013 at Renmark, Mr Singh possessed a class H firearm namely a Kokusai Sangyo model Smith and Wesson .44 magnum imitation revolver, whilst not holding a licence authorising possession of that firearm.
Paragraph 3 of the accused’s Rule 49 Notice dated 20 October 2014 reads as follows:
That the following evidence be excluded from the trial:
3. All evidence of the finding of the imitation .44 magnum revolver at 58 Culgoa Street Renmark on 15 March 2013
The grounds relied upon are as follows:
The evidence should be excluded pursuant to the public policy discretion. The police had no lawful authority to enter the premises to conduct the search and were trespassing at the time the firearm was located.
Background Facts
Detective Brevet Sergeant Jason O’Malley (who gave evidence on the voir dire) was stationed at the Riverland CIB on 15 March 2013. In the evening of that day, Detective O’Malley received information via a telephone call from Crime Stoppers. He received that information at some time between 6-6.30 pm that evening. The information received from Crime Stoppers was recorded on a case management system.[1] It read as follows:
Info received is that he (the accused) has been showing off the revolver to kids around Renmark.
[1] Exhibit VDD1.
In answer to one of my questions, Detective O’Malley said that Crime Stoppers is an anonymous phone in line where people can phone in with information. The phone service is controlled by the police. Following the receipt of that information, Detective O’Malley accessed the record of the accused’s firearm licences which showed that the accused had 3 firearms registered to him. The firearms that were registered to the accused did not include a handgun firearm.
Within about an hour the police then attended at the address at 58 Culgoa Street Renmark, the home of the accused and the place at which the three firearms were listed as being stored. The police knew that this address was the accused’s address and they were unaware of any other address at which the accused may have resided. It was the address at which the police thought that the accused was living at the time.
The evidence given by Detective O’Malley was that the purpose of the police in attending was to search and to see whether there was a handgun at the premises acting upon the information received from Crime Stoppers. He said that the police were acting under the statutory authority to make this search; section 32(3) of the Firearms Act. That provision reads as follows:
32—Power to inspect or seize firearms etc
...
(3) A police officer may enter and search any premises in which the police officer
suspects on reasonable grounds—
(a) there is a firearm, firearm part, silencer, prohibited firearm accessory,
mechanism, fitting, ammunition or licence liable to seizure under this section;
or
(b) a firearm is kept contrary to the security requirements of this Act.
Detective O’Malley did not intend to operate under his general search warrant because his attitude was that as this was a matter potentially concerning a firearm, then the police should proceed under the powers provided under the Firearms Act.
At or about 7.30pm the police arrived at 58 Culgoa Street (the premises). There were 2 police in attendance, Detective O’Malley assisted by Senior Constable Van Dyk.
After arrival at the premises, the police knocked at the rear door. They announced their presence as police. Detective O’Malley was aware from noises emanating from activity in the premises that there were persons inside the house but he could obtain no response. The officers then went around the house knocking on windows and announcing their presence. Detective O’Malley continued to be aware of movement inside the house. The police officers went back to the rear door. When they arrived again at the rear door they continued knocking and calling out and announcing their presence. Looking through the clear glass rear door, Detective O’Malley saw a young male walk towards the rear door. At about the same time, he saw the accused run out of a bedroom and into another room immediately opposite the rear glass door. That room was later identified as the lounge room. The rear door was opened by the child, the police entered and announced their presence and said that they were at the premises for the purpose of a search. Detective O’Malley said that when he saw the accused run from the bedroom to what was later identified as the lounge room, he formed the suspicion that the accused was trying not to be seen by the police and this led to him forming a suspicion that the accused may have been hiding or was trying to hide something from the police.
A search of the house followed. The search occurred after the accused was told that as the police had received information that the accused may be in possession of a handgun and under the Firearms Act, the police would be searching the house. In the room into which the accused was seen running, the police found a magnum .44 replica under a cushion on a lounge suite in that room.
In evidence, Detective O’Malley said that under section 32 of the Firearms Act, it was his intention at the time of the search that if a class H firearm was found, then it would have been seized because the accused had no licence to possess the firearm. He said that the firearm was liable to seizure and his suspicion was the firearm was in the home based upon the information that had been received from Crime Stoppers.
In cross examination, Detective O’Malley said that based upon the information received from Crime Stoppers, he formed the suspicion that the accused was in possession of the firearm. He said that he worked upon the assumption that in order for the accused to be showing off the firearm, the accused had to have the firearm in his possession (in order to be able to show it to others).
Detective O’Malley also said in evidence that if information is received anonymously through Crime Stoppers that someone is in possession of a firearm, that was sufficient to form a suspicion on reasonable grounds for the purposes of section 32(3) of the Firearms Act that the accused was in possession of a firearm. This was irrespective of the source of the information because it was in the public interest that the police follow up this information in case that person does have the firearm. He said that if the police did not go and make a search and the firearm existed, was wrongfully in possession of a person without the appropriate licence and it is then used, this situation puts the public in real danger. From his point of view it is a matter of plain common sense. He also said in evidence that there were at least 15 houses in Culgoa Street albeit that the street was some 5 kilometres outside of the town.
In cross examination, Detective O’Malley said that he had a suspicion that there was a firearm liable to seizure in the house based upon the information that had been received and, if the firearm was there, it was available to be seized because there was no relevant licence held by the accused.
Detective O’Malley said that the police did not caution Mr Singh when he first spoke to him about the fact that they had suspected that an offence had been committed: at the time that the police first spoke to the accused, he had not been charged with any offence. However he also confirmed that in the circumstances that faced the police at the time, he was of the view that no further information was required before the police would act upon the Crime Stoppers report.
The Contentions of the Accused
In his submissions, Mr Henchliffe for the accused said that it was necessary for the police to have a suspicion that there was a firearm on the premises and that such a suspicion had to be based upon reasonable grounds. Mr Henchliffe criticised the police for acting upon the information from Crime Stoppers. His criticism was based mainly upon the fact that the Crime Stoppers information related to a period sometime in the past but the information did not tell the police how long in the past the relevant event may have occurred. The relevant event in this case was the information that the accused had been seen showing off a revolver to children around Renmark. Mr Henchliffe submitted that there was no basis on which Detective O’Malley could form a suspicion on reasonable grounds that the revolver was in the premises as opposed to being anywhere else.
The response of the prosecution to that submission was that, in accordance with the evidence given by the police officer, when information is received that the accused had been showing the revolver to children around Renmark, the logical step is that the accused had to be in possession of the revolver to be showing it to the children. The same logic suggests that based upon that information, the first appropriate place to make a search for any firearm was the home of the person who was reported to have been seen with this firearm. It is difficult to find a flaw in that logic.
The second submission of Mr Henchliffe was that it is not sufficient for there to be a suspicion that there may be a firearm on the premises. The suspicion has to be that there is a firearm on the premises. Mr Henchliffe relied upon the decision of Johnston J in Ercegovic v Higgins[2] wherein Johnston J made a comparison between section 32(2) and (3) of the Firearms Act 1977 as those subsections existed at the relevant time. Mr Henchliffe conceded that section 32(3) had since been amended. He also agreed that the comments of Johnston J were not part of the ratio of the decision and were merely obiter comments. In any event, Mr Henchliffe properly submitted that the ratio of the decision was that his Honour found, on the facts, that there was no reasonable basis for the police officer in question to detain the vehicle because there was no reasonable basis for the police officer to entertain a suspicion that a firearm was in the vehicle.
[2] (1987) 45 SASR 189.
Mr Henchliffe then submitted that there was no evidence that Mr Singh actually kept the firearm at his premises and therefore there was no basis to suspect on reasonable grounds that the firearm was in the premises. This was because there was no information, even in the past, that Mr Singh kept the firearm at his premises. This case, as the argument went, was therefore indistinguishable from the situation faced by Johnston J in Ercegovic. At the heart of this submission by Mr Henchliffe was that any suspicion held by the police had to be a suspicion that was attached to Mr Singh personally as opposed to his premises and therefore there was no basis under section 32(3) of the Firearms Act for the police to search the premises. As a second part of that submission, Mr Henchliffe also said that any suspicion of the police was not based upon reasonable grounds because of the paucity of information from the Crime Stoppers report. He submitted that a power to search, if used, is a gross invasion of the privacy of somebody’s home and a Crime Stoppers call from an anonymous source is insufficient, in itself, to give rise to reasonable grounds to suspect. He likened the situation to that which confronted the Court of Criminal Appeal in R v Nguyen[3] and suggested that the attitude of the police was that they felt free to search whenever they felt like it because they had a kernel of information or a scrap of information. He submitted that this was insufficient. I have obtained no assistance by the reference to Nguyen.
[3] (2013) 11 SASR 532.
During argument, I referred Mr Henchliffe to the decision R v Rogers.[4] This case concerned an application by the accused to exclude evidence relating to the search of a vehicle on grounds that the search was illegal. The accused had been charged with trafficking in a commercial quantity of cocaine which was located by police in his car. The car was being driven by the accused on the Barrier Highway. He was first stopped by a police officer near Olary. The police officer formed a suspicion about the accused’s behaviour because of his reaction to being stopped, his furtive behaviour and the physical manifestations of nervousness. The police officer arranged for back up, for the accused vehicle to be let go but be stopped further down the highway so that a number of police officers would be involved in the search.
[4] [2011] SASR 307.
The accused’s vehicle was stopped later near Yunta and was searched pursuant to section 52(9) of the Controlled Substances Act. That section reads as follows:
52—Power to search, seize etc
…
(9) If an authorised officer who is a police officer reasonably suspects that any substance
or equipment that would afford evidence of an offence against this Act is in any
vehicle, vessel or aircraft, the officer may—
(a) require the driver of the vehicle, the master of the vessel or the pilot of the
aircraft to stop the vehicle, vessel or aircraft; and
(b) detain and search the vehicle, vessel or aircraft; and
(c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
Upon the search the police found a parcel of cocaine. The challenge was not to the fact that the police officer suspected that the search of the vehicle would reveal evidence of an offence, but the challenge was whether the suspicion was reasonable in all of the circumstances. Duggan J, who wrote the decision of the court, rejected the submissions of the accused. His Honour relevantly said at paragraphs [18]-[22] as follows:
In George v Rockett, the High Court quoted with approval the statement of Lord Devlin in Hussein v Chong Fook Kam:
Suspicion is its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”
The court when on to draw a distinction between suspicion and belief:
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor. His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:
According to the plain meaning of the words there is therefore a clear distinction between things that are “suspected” of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and tings which are believed to have this peculiarity. The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
McHugh J also quoted from the judgement of the Full Court of the Supreme Court of South Australia in Henderson v Surfield where their Honours said:
Suspicion lives in the consciousness of uncertainty.
It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer. As Jacobs J observed in Manley v Tucs:
Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that ever matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
At paragraph [22], Duggan J was careful to state that not every piece of evidence may legitimately be taken into account in forming a suspicion. His Honour found that it was necessary to objectively make some assessment of the reliability of the information which has been communicated to the police and upon which they may act. This will include any information that the Police subsequently receive or any observations made by them: relevantly in this case what Detective O’Malley saw of the behaviour of the accused when they were knocking on the doors and windows and then the accused seen running from one room to the next.
Duggan J did not purport to set out some prescriptive model under which the police may act. All of these types of matters turn on their peculiar facts. Those facts may vary infinitely as may the circumstances in which those facts are to be found. For example, it could not be said that information concerning an adult person disclosing the existence of a firearm publicly to children in a country town would necessarily be treated in the same way as information about, for example, persons frequenting a house of known drug users. There are different levels of seriousness and perspicacity about all information and circumstances. As I put to Mr Henchliffe during submissions, if as he submitted and in the circumstances of this case, the police had to engage in a systematic detailed review of the hearsay facts as have been given to them, there was a danger that police work would grind to a halt because the police could never have time to be sufficiently sure that they would ever have enough information to form a suspicion on reasonable grounds, despite the nature of the information possessed by them in this case. The report to the police of someone showing a revolver to children is of quite obvious importance. In my view, objectively assessed, the police then had enough information to form a suspicion on reasonable grounds that there was a firearm in the possession of the accused, having received that information.

I am therefore unable to accept the primary and secondary submissions of Mr Henchliffe. In my opinion, having regard to the information that they had received, there was sufficient information held by the police for them to suspect on reasonable grounds that there was a firearm on the premises of the accused. In so finding, I also am unable to accept the submission of Mr Henchliffe that any information possessed by the police related to matters that were entirely personal to the accused. In my opinion, that submission would create an artificial construct so that the police could not search anywhere other than a place where they could suspect on reasonable grounds that the firearm might be stored based upon the specific information received by them. In my opinion, it would be an artificial construct to say that the police could not search a premises where a person lived, having received information that such a person had been showing a revolver to children. To the contrary, in my opinion it would have been inappropriate for the police not to have acted in the way that they did.
In Rogers, Duggan J found that the major factors in forming the suspicion arose out the accused’s behaviour and demeanour. His Honour found that those matters were sufficient in themselves to give rise to a reasonable suspicion for section 52(9) of the Controlled Substances Act. In my opinion, when the police received the information through the Crime Stoppers report, albeit anonymously, that the accused had been showing a revolver to children in the Renmark area, that was sufficient for the police officer to suspect on reasonable grounds that there may be a firearm on the premises occupied by the accused. That state of mind, objectively, would only have become firmer having regard to the behaviour of the accused at the premises as it was observed by Detective O’Malley.
If I am wrong about that view, then I am of the view that, relying upon the Court of Criminal Appeal decision in R v Romeo (1982) 30 SASR 243 at 275 per Cox J, who wrote the decision of the court, there was a duality of search powers. His Honour relevantly said:
Taking the two Acts at face value, then, there would appear to be a duality of search powers available to the police now with respect to the suspected drug offences. The learned trial Judge was much influenced by the difference between the two statutory schemes. I have already observed that s.11 is confined to a suspicion that there are drugs at the place specified at the particular time when the police for the authority. The terms of s. 67 are much wider. I do not see this, however, as a ground for excluding the operation of s. 67. What was regarded by Parliament as an appropriate restriction for a summary offence may not necessarily be thought appropriate now that the offences are indictable. There are also differences between the two Acts with respect to powers of arrest and the right of an arrested person to apply for bail. There may therefore be an uncertainty, where a police officer happens to be in possession of two warrants, about the law applicable to an arrested person. That is undesirable, and it may be that, if the problem is likely to occur frequently, Parliament ought to deal with it.
Thus, even though Detective O’Malley proceeded under the power under the Firearms Act 1977, he was also entitled to proceed under the power of his general search warrant because of the duality of powers available.
If I am wrong about both of those views then I would exercise my discretion in favour of the reception of the evidence before the jury on a number of grounds. In my opinion, it is plain that there was no deliberate unlawfulness. It is also plain that the police did not act upon trite information. I am satisfied that the actions were not of a wilful or malicious nature, and in my opinion the cogency of the evidence is not affected. I am also satisfied that the evidence is of a probative value about a serious charge.
In the High Court decision in Bunning v Cross (1977-1978) 14 CLR 54 Stephen and Aickin JJ said at page 78 as follows:
..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.
In my opinion what fell from the High Court is apposite to this case.