R v Thaller & Gee (No 4) No. DCCRM-98-304 Judgment No. D67

[1999] SADC 67

R v THALLER & GEE

[1999] SADC 67

Judge Anderson
Criminal

1 On 16 April 1999 I delivered reasons ruling upon the amended Rule 9 Notice in this matter wherein the Accused are charged jointly and separately with several counts of defrauding the Commonwealth contrary to the provisions of Sections 29D and 5 of the Crimes Act 1914.
2 I there ruled that on 1 February 1996, when Detective Cunningham exercised the powers which attach to the holder of a properly issued general search warrant, he was acting unlawfully as, notwithstanding that the issue to him of a general search warrant was within power, the failure of the Commissioner of Police (or his delegate) to comply with the provisions of s19b(3) of the Police Act 1952 meant that that exercise by him of those powers was unlawful. Consequently, the search which was conducted was illegal and the evidence which was obtained was unlawfully obtained.
3 This circumstance meant that the only way in which the evidence seized by Detective Cunningham on 1 February 1996 may be used at trial is if, by an exercise of my discretion in relation thereto, the Director of Public Prosecutions is permitted to lead it.
4 This issue was the subject of submissions on 18 May 1999.
5 At the outset and prior to embarking upon those submissions, Mr Griffin of counsel for the Director of Public Prosecutions ("the Director") sought that I review my ruling of 16 April 1999 in light of recently revealed correspondence.
6 That correspondence was an internal South Australian Police Force memorandum, dated 16 May 1995, from Detective Cunningham to the Deputy Commissioner seeking his formal reinstatement as a Detective and the issue to him of a general search warrant consequent upon his secondment to the National Crime Authority ("NCA") as Chief Investigator.
7 A note on the memorandum indicates that Deputy Commissioner Hurley approved the request on 18 May 1995.
8 Earlier evidence taken upon the voir dire shows that a general search warrant was issued to Detective Cunningham on 19 September 1995 and renewed on 1 January 1996.  The issuing of the general search warrant and its renewal were proper and in accordance with all applicable statutory and administrative requirements as they relate to general search warrants.
9 With the discovery of the memorandum of 16 May 1995, Mr Griffin sought to represent his submission made on 15 April 1999 to the effect that the general search warrant was, constructively, compliance with the requirements of s19b(3). He now submitted that the Deputy Commissioner’s approval endorsed on the memorandum was further indication, when taken with the general search warrant, of the intention that Detective Cunningham remain in possession of "all powers and authorities" (s19b(3)) as a member of the South Australian Police Force.
10 I declined Mr Griffin’s invitation to reconsider my earlier ruling.  I was not persuaded that this additional matter added in any way to the issuing of the general search warrant by the Deputy Commissioner after he had given personal consideration thereto, and its subsequent renewal on a similar basis.
11 At the outset of the submissions in relation to the exercise of my discretion, evidence was led from witnesses who were involved in the secondment of Detective Cunningham to the NCA in 1995.
12 From that evidence, Assistant Commissioner Lean (now retired) was responsible for Detective Cunningham’s secondment in April 1995. Mr Ganley (now Regional Director of the NCA, but in April 1995 Deputy Director of Investigations) was party to that secondment on behalf of the NCA.
13 Document 3 of the hearing of 15 April 1999 shows that knowledge of s19b(3) was held by Mr Ganley in April 1993 when he received several authorities signed pursuant thereto by Deputy Commissioner Hurley on 22 April 1993. It follows that the Deputy Commissioner was then also aware of the subsection.
14 Notwithstanding this knowledge, it is an agreed fact that no such authority was issued relating to Detective Cunningham’s secondment to the NCA in 1995.
15 The effect of the evidence of Mr Lean was, broadly, that whilst he had read the Police Act many times, he had not fixed upon this subsection and was unaware of its purpose until it was raised with him in relation to this matter.
16 From his evidence as to his range of duties as an Assistant Commissioner of Police and from the evidence earlier given by Mr Hurley and from his endorsement on the memorandum of 16 May 1995, I am able to conclude that had the need to comply with s19b(3) been realised at the time of the secondment of Detective Cunningham to the NCA in 1995, the appropriate authority would have been issued by the Commissioner (or his delegate). I am not prevented from reaching this conclusion by the absence of evidence from the then Commissioner. The conclusion is overwhelming. Failure to comply with the statutory requirement of ss19b(3) in April 1995 was an administrative oversight. There was not a deliberate non compliance.
17 However it came about, the failure to comply with the provisions of s19b(3) meant that Detective Cunningham did not hold a validly issued general search warrant. This was because without an authority given pursuant to s19b(3) he had lost all powers and authorities which he had as a member of the South Australian Police Force from the time of his secondment to the NCA in April 1995.
18 It has long been recognised that the Courts will not sanction the invasion of a person’s privacy and the seizure of their property unless such actions are provided for by legislation. Legislation has sought to maintain the balance between "an effective criminal justice system and the need to protect the individual from arbitrary invasion of his privacy and property" : George v Rockett (1990) 170 CLR 104 @ 110.
19 In this State the use of a general search warrant is to be considered in light of the general principle stated by Jacobs J in Tran Nominees v Scheffler (1986) 42 SASR 361 @ 369 when His Honour said:
"The issue and execution of a warrant to enter, or to search and seize, or both, represents an invasion of the liberty of the subject, which was jealously protected by the common law, and the need for protection against abuse or unauthorised invasion is still a guiding principle when the authority to enter or search or seize is derived from statute: the court will construe such statutes strictly, resolving any ambiguity in favour of the subject and insist upon strict compliance with the statute and the conditions upon which the warrant is authorised." (emphasis added)

20 In the same case, on appeal, Cox J said at p389:
"The uninvited entry by the police into a man’s house or shop, if necessary by force, is a very large invasion of his privacy. It is also calculated to cause apprehension and fear. However, all modern societies have found it necessary from time to time to give powers of search and seizure to their law enforcement authorities, where the circumstances are thought compelling enough to require it, and it is no part of the function of the courts to frustrate the laws of Parliament in this respect by giving them a contrived or unlikely construction. For this reason I found some of Mr. McNamara’s submissions about the proper interpretation of s.52 of the Controlled Substances Act unpersuasive. Nevertheless, the courts have always insisted that those who issue or execute a warrant of this sort should comply strictly with the statutory requirements. That includes the limitations, expressed or implied, upon the power to issue the warrant. The issuing authority must take care to ensure that all conditions precedent to issue have been met. If they have not, it is very likely that the warrant will be, at the least, seriously defective." (emphasis added)

21 Here it is an agreed fact that the proper authority did not ensure that a mandatory condition precedent to Detective Cunningham being able to become a proper holder of a valid general search warrant was met.
22 Such a failure to comply with a strict legislative requirement might not easily be excused when leading, as it did, to the totally unauthorised entry to the Applicants’ place of business.  Public policy requires that in this area there be strict adherence to such a condition precedent if the benefits of such a search are to be available to the prosecution at trial.
23 They will not now be available unless the discretion is exercised so as to permit such a course.
24 Mr Griffin submitted that the discretion which arose from the High Court decision in Bunning v Cross (1978-9) 141 CLR 54 should be exercised in favour of allowing the Crown to use the fruits of Detective Cunningham’s search and seizure.
25 He submitted that there was no deliberate exceeding of authority by Detective Cunningham.  That is so, but the consequence of this non compliance has been the unauthorised entry into private premises - something which cannot simply be explained away as involving "no overt defiance of the will of the legislature or calculated disregard of the common law" (Bunning v Cross @ p78).
26 True it is that "the nature of the illegality does not .... affect the cogency of the evidence obtained" (Bunning v Cross @ p79).  True also that the offences are serious.
27 However, at the end of the day the cumulative affect of these matters which may lead to admission of the evidence by a favourable exercise of the discretion in some circumstances is not able to overcome the effect of the administrative oversight which allowed Detective Cunningham to be totally without police powers of any type on 1 February 1996 when he entered the Accused’s premises.
28 Such an oversight is unable to be lightly put aside when it has resulted in such a fundamental breach of the common law.
29 I decline to exercise my discretion so to enable the impugned evidence to be used at trial.  The illegally obtained evidence is, and remains, inadmissible.