R v Sutcliffe No. DCCRM-01-1299

R v SUTCLIFFE Peter Lewis
[2002] SADC 144
Judge Lee
Criminal

This is a rule 9 application for determination prior to the trial.
The accused is charged with one count of producing cannabis, one count of possessing cannabis in excess of 2 kilograms for sale, and one count of unlawful possession of $1,410. When the police raided the accused’s premises at Nairne on 9 June 2001, they located and seized 8 cannabis plants, a substantial quantity of cannabis material, and various items of hydroponic equipment.
A number of orders are sought.
First, that Constable Peter Foulis be required to give evidence on the voir dire, and/or that his evidence be excluded from the trial.
The declaration of this witness describes the nature of cannabis and some aspects of the illicit drug trade. His evidence will be led by the prosecution primarily on the issue of the commerciality of the accused’s alleged possession of the drug. Mr Mancini contended that his evidence should deal also with the non-commercial use of the drug in the community. If it does not, Mr Mancini says, the evidence should be excluded.
I do not consider that either of the orders sought would be appropriate. The prosecution is entitled to confine the witness’s evidence to topics which arise on the prosecution case. Whilst the non-commercial use of the drug in the community may be a proper topic for cross-examination at the trial, I do not consider that Mr Mancini should be allowed to explore the topic with the witness at this stage. “The practice of directing a voir dire in appropriate cases must not lead to the supposition that counsel have an unrestricted right to a fishing expedition”: R v Williams (1976) 14 SASR 1 at 3.
The second order sought is that the prosecution not adduce evidence of the police search of the premises, and the results of that search, because the search was illegal.
As I understand Mr Mancini’s submission, although the search warrants held by the police officers who conducted the search were issued in compliance with s.52 of the Controlled Substances Act and are valid on their face, the holder of a warrant should entertain his own belief or suspicion about the possible commission of an offence against the Act before he conducts any search.
I consider that the submission should be rejected. Copies of 8 warrants are before me. Each states in identical terms that the issuing officer is “satisfied on information upon oath received by me this day that there are reasonable grounds for suspecting that an offence against the Controlled Substances Act, 1984, has been, or is being committed, and that a warrant is reasonably required in the circumstances”. Each warrant then goes on to authorise the holder to enter the accused’s premises at Nairne “for the purpose of ascertaining whether the provisions of the Act are being complied with or have been contravened, and, where reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises.”
So, according to the face of each warrant, the issuing officer held the requisite suspicion on the basis of information on oath. Question of Law Reserved (2000) 76 SASR 356 is authority for the proposition that no question of the sufficiency of that information can legitimately arise. Moreover, once a police officer is in possession of a valid warrant with respect to specified premises, the source of his power to search those premises is s.52. There is no requirement in the section that the holder of a warrant, independently of the issuer of the warrant, should entertain any belief or suspicion.
The third order sought is that count 3 be severed and/or that the prosecution not adduce evidence in respect of the money that is the subject of count 3.
I consider that, in terms of s.278 of the Criminal Law Consolidation Act, count 3 is properly joined in the information, that evidence of the finding and seizure of the money would be relevant and therefore admissible with respect to both counts 2 and 3, and that any prejudice to the accused arising from a possible misuse of the evidence by the jury can be overcome by an appropriate direction.
The final order sought is that evidence of the cannabis material seized by police should be excluded because of the subsequent unlawful destruction of that material by police.
It will be convenient at this point to provide a chronology of relevant events.
9/6/01A number of police officers, including Constable Biro, raid the accused’s premises, and seize eight cannabis plants, cannabis material, hydroponic equipment and $1,410 in cash. Constable Biro later becomes the officer in charge of the investigation. Constable Gore is the exhibits officer. Constable Gore records in an exhibits log a description of, and an exhibit number for, each item, and supervises the labelling of the items by Constables Corbin and Compton. A sample is taken from each plant, and given a separate number and label. The exhibits are conveyed to the Mount Barker Police Station where Constable Gore records them on a computer and prints and attaches a new label to each item. The exhibits are then stored in the Mount Barker interim exhibit property room.
12/6/01Police lay an information against the accused charging him with producing cannabis, possessing cannabis in excess of 2 kilograms for sale, and unlawful possession of $1,410. Under each of the first and second counts, the following endorsement appears:
“A sample of the cannabis which is the subject of this charge has been retained for evidentiary purposes in accordance with the Regulations under the Controlled Substances Act, 1984. Pursuant to Section 52A of the Controlled Substances Act, 1984 you have the right to have part of the sample analysed by an analyst. Should you desire to exercise this right please contact the prosecution unit listed below.”
13/6/01Police bank the cash in an account with the Bank of SA.
14/6/01Constable Biro collects three cannabis plants, cannabis plant samples and the cannabis material from the property room at Mount Barker, and conveys them to the State Forensic Science Centre.
18/6/01Gregory Webber, an analyst at the State Forensic Science Centre, examines the cannabis plants and samples and examines and weighs the cannabis material. His findings with respect to the cannabis material are as follows:
Slightly damp mouldy decomposing leaf material and cut stem pieces in sealed gar-bag  1.228 kg
Damp mouldy female plant material in sealed box  3.560 kg
Slightly moist leaf material with some cut stripped stem pieces in sealed paper bag  0.4895 kg
Slightly moist mouldy leaf material with some cut stripped stem pieces in three sealed paper bags  1.957 kg
  7.2345kg
22/6/01Constable Scanlan destroys the cannabis plants that remain in the property room at Mount Barker.
28/6/01Constable Gore collects the items from the State Forensic Science Centre, and returns them to the property room at Mount Barker.
2/10/01Mr Mancini sends a fax to the DPP Committal Unit. The relevant part reads:
“I refer to our telephone discussion on 28 September 2001 and confirm the following:-
1.    Defence wishes to arrange re-weighing of the seized cannabis. Please advise as to what needs to be done to facilitate that.”
26/10/01Accused is committed for trial in the District Court.
26/11/01Accused is arraigned in the District Court and pleads not guilty to each count.
15/1/02First directions hearing in District Court. Trial listed to commence on 2/7/02.
17/1/02DPP writes to Constable Biro advising trial date.
14/6/02Destruction of some of the exhibits by police.
22/6/02Destruction of some of the exhibits by police.
26/6/02Further directions hearing. No appearance by or on behalf of accused. Trial date is vacated, but hearing on 2/7/02 is retained for matter to be mentioned.
1/7/02Destruction of some of the exhibits by police.
2/7/02Matter adjourned to further directions hearing on 9/7/02.
9/7/02Matter adjourned to further directions hearing on 6/8/02.
24/7/02Destruction of remainder of exhibits by police.
6/8/02Trial listed to commence on 22/10/02.
12/8/02DPP writes to police advising trial date.
1/10/02Police telephone DPP to advise of destruction of all exhibits.
It will be apparent from the chronology that, notwithstanding Mr Mancini’s request of the DPP on 28 September 2001 and 2 October 2001 that the defence be allowed the opportunity to re-weigh the seized cannabis, the police destroyed the cannabis material, along with all of the other exhibits, in June and July 2002. I take the expression “seized cannabis” in Mr Mancini’s fax of 2 October 2001 to refer to the cannabis material the subject of count 2, rather than the cannabis plants the subject of count 1.
It is common ground that procedures for the destruction of seized property were not followed by police. Section 52A of the Controlled Substances Act recognises the importance of retaining seized property pending proceedings and the need to limit destruction or disposition to clearly defined circumstances. No order forfeiting the property to the Crown, thus justifying destruction or disposition thereafter, was made in this case, so subsections (7) to (13) can be put to one side. The earlier subsections read as follows:
“52A. (1) Subject to this section, seized property must be held pending proceedings for an offence against this Act relation to the property.
(2) If seized property-
(a)is a prohibited substance or a drug of dependence or other poison; or
(b)is, in the opinion of the Commissioner of Police, likely to constitute a danger if stored pending proceedings for an offence against this Act relating to the property,
the Commissioner of Police may direct that the property be destroyed, whether or not a person has been or is to be charged with an offence in relation to it.
(3) Property referred to in subsection (2) may be destroyed at the place at which it was seized or at any other suitable place.
(4) If a charge is laid, or is to be laid, for an offence in relation to property referred to in subsection (2)-
(a)samples of the property that provide a true representation of the nature of the property must be taken and kept for evidentiary purposes; and
(b)the defendant is entitled to have a portion of the sample analysed by an analyst (see section 53); and
(c)the defendant must be given written notice of that entitlement.
(5) Possession of samples taken under this section must remain at all times within the control of the Commissioner of Police or his or her nominee.
(6) The regulations may make provision relating to the taking of samples of seized property and analysis of those samples.”
I am satisfied on the evidence that the destruction of plants on 22 June 2001 was done without the direction required by subsection (2). More importantly, with respect to the destruction of all other property in June and July 2002, I am satisfied that there was a failure by police to comply with subsections (2) and (4). Superintendent Rieniets gave a direction to Constable Scanlan to destroy the property, but there is no evidence before me that he had a delegation to act on behalf of the Commissioner of Police. Section 19(1) of the Police Act 1998 enables the Commissioner to delegate a statutory power by “an instrument in writing”, and s.11 of that Act enables the Commissioner to make general or special orders “for the control and management of SA Police”. The general orders currently in force are Police General Orders of April 2001, but I cannot see in the procedures laid down by those orders for the destruction of drugs any delegation of the Commissioner’s power under s.52A(2) of the Controlled Substances Act.
Moreover, as I find, Superintendent Rieniets did not hold an opinion at the relevant time that the hydroponic equipment was “likely to constitute a danger if stored”. The strong impression left upon me by his evidence is that it was the lack of space in the storage facility at Mount Barker that led him to authorise the removal of “eight tandem trailer loads” to the Strathalbyn rubbish dump. I regard his and Constable Scanlan’s reference to health and safety considerations as an attempt after the event to bring the destruction of the hydroponic equipment within the scope of s.52A. Furthermore, with respect to the cannabis material in particular, the procedure laid down by subsection (4) for the taking of samples and for the giving of notice to the accused was not observed.
When considering whether, in these circumstances, evidence relating to some or all of the property should be excluded, I need to focus upon, given that none of the property was obtained by unlawful or improper conduct, the general unfairness discretion.
For the nature and scope of the general unfairness discretion, I refer in general to the judgment of Martin J in R v Lobban (2000) 77 SASR 24, and in particular to the following of his conclusions at page 51 of the report:
“…..
(v) The public policy discretion, whether in the context of confessional or non-confessional evidence, is enlivened only if the evidence was obtained by unlawful or improper conduct or if the criminal offence was induced by unlawful or improper conduct on the part of law enforcement authorities.
…..
(vii) A discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair:
·     the purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted;
·     the operation of this discretion is not dependent upon the conduct of law enforcement authorities;
·     in principle, this discretion applies to any evidence, but in those areas where special bodies of law exist with respect to the admissibility and discretionary exclusion of particular types of evidence, this discretion may be subsumed by or overlap with well established principles.”
I refer also to passages from two other authorities, both discussed by Martin J. The first speaks of the public policy discretion, and the second distinguishes that discretion from the unfairness discretion.
“But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts.”
Question of Law Reserved (No 1 of 1998) 70 SASR 281 per Doyle CJ at 288.
“The purpose of the discretion to exclude evidence on the ground of unfairness is to ensure a fair trial for the accused; the purpose of the discretion to exclude evidence on the ground of unlawfulness is not to ensure a fair trial but to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of – if not reward for – illegal conduct on the part of the law enforcement agency.”
Ridgeway v The Queen (1995) 184 CLR 19 per Brennan J at 49.
Mr Mancini submitted that the destruction of the property will jeopardise the accused’s right to a fair trial, because he has lost the opportunity to independently test and/or to call independent evidence of
1.   the weight and source of the cannabis material,
2.   the quality of the cannabis material and the extent to which it would have been saleable in the market place, and
3.   the level of sophistication of the hydroponic equipment.
The weight of the cannabis material is important in two respects. First, if the weight is less than 2 kilograms, the offence of possession of cannabis for sale must be tried in the Magistrates Court as a summary offence (s.32(5)B(a)(iii) of the Controlled Substances Act and s.5(2)(b) of the Summary Procedure Act). And second, if the weight is 100 grams or more, the onus of proof is reversed (s.32(3) of the Controlled Substances Act and clause 6 of the Controlled Substances (Prohibited Substances) Regulations 2000).
These weights are prescribed by the Controlled Substances Act and Regulations for the purpose of determining, apart from maximum penalties, issues of onus and jurisdiction. They must, by necessary implication, be the weights applicable at the time that the cannabis is found in the possession of the accused. So, in this case, the relevant date is 9 June 2001. The examination by Mr Webber nine days later clearly shows what those weights were. No reasonable margin of error could bring them anywhere near the weights that have been prescribed.
The quality of the cannabis material is important to the accused’s defence of the “for sale” ingredient of count 2. Nevertheless, the quality of the material observed by police at the house and by Mr Webber nine days later will be much more relevant to the issue of his intention than the quality of the material at any later time. The prosecution has undertaken to make Mr Webber available at the trial, and I consider that the accused’s right to a fair trial on this aspect will be thereby protected.
The level of sophistication of the hydroponic equipment will be a matter for the judgment of the jury based upon the appearance of the equipment as described and photographed by police. I do not consider that the destruction of the equipment has put the accused at risk of an unfair trial.
Having taken me through Police General Orders of April 2001 under the heading of “Exhibits” and some of the Regulations under the Police Act 1988, Mr Mancini was able to demonstrate that there was a non-observance of those provisions in some respects. For example, as I find, no field receipt on a PD88 was issued at the house in compliance with General Orders, and the cash was not retained in specie in compliance with clause 55 of the Regulations. Nevertheless, the chain-of-evidence procedures used by police, with one exception, are fully described in the declarations, and they do not give rise to any apprehension in my mind that the cannabis material seized by police on 9 June 2001 was not the cannabis material presented by police to Mr Webber on 18 June 2001. The exception is the change between the letters and figures assigned to items at the house and the figures assigned to the items after they had been recorded on computer at the Mount Barker Police Station. The prosecution has undertaken to provide a supplementary declaration on that topic.
For all these reasons, the application is dismissed.

[2002] SADC 144

11 November 2002