R v Tiver (No 2) - [2004] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TIVER (No 2)
Reasons for Ruling of Her Honour Judge Kelly
3 August 2004
CRIMINAL LAW
R v TIVER (No 2)
[2004] SADC 107

The accused Dale Brenton TIVER has been charged with 8 counts relating to the possession of methylamphetamine, Lysergide, & methylenedioxymethamphetamine for sale. In addition he has been charged with one count of unlawful possession.
Prior to the empanelment of the jury the accused filed a notice pursuant to Rule 9 of the District Court Rules seeking orders:-
1.      That a “basha” enquiry be held into the circumstances of the crown witness Benjamin Norman becoming a prosecution witness;
2.      That there be a hearing on the voir dire relating to the lawfulness of the manner in which the police obtained evidence of witnesses and physical evidence;
3.      That the prosecution be prevented from leading all items of physical evidence and all the evidence of the witnesses on the basis that that evidence was either obtained unlawfully, or was so inextricably connected to and tainted by unlawfully obtained evidence that it should be excluded.
By the time the matter was argued on 7 June 2004 both the prosecution and the defendant had reached substantial agreement as to the facts giving rise to the applications in paragraphs 2 and 3 above. In effect the prosecution conceded that the actions of the police in attending at 182 Gray Street Adelaide and removing envelopes from the letterbox situated on those premises technically constituted a trespass and was therefore an unlawful act.
In light of this concession, the real issue which arose for consideration on paragraphs 2 and 3 of the application, was whether, in the exercise of the Court’s discretion, the evidence obtained as a result of that unlawful act should be admitted at the trial. A further question arose as to whether the subsequent investigation and obtaining of further evidence over the next 6 months was so connected with and tainted by that initial unlawful act that it too should be excluded in the exercise of the Court’s discretion.
After hearing evidence from 2 police officers, Constables Mellor and Constable Crouch I declined to exclude the evidence and indicated that I would publish my reasons at the end of the trial if asked to do so. I do so now.
In addition to the oral evidence of the two police officers, a statement of Benjamin Norman dated 18 February 2003 and a Crime Stoppers report together with the two envelopes taken from the letterbox (VDP5) were also tendered on the voir dire.
It was not in dispute that the information which the police had when they went to 182 Gray Street on 29 June 2002 was that which was contained in the Crime Stoppers report exhibit P2. It was also not in dispute that at that stage the only information the police had in relation to those premises was the information which came through on the Crime Stoppers report which of necessity is an anonymous report.
I accept the evidence of both police officers, notwithstanding the fact that Detective Crouch was mistaken about who actually seized the envelopes out of the letterbox, that they were removed and seized from the letterbox on the basis of the information which they had from the Crime Stoppers report. That information together with the appearance of what looked like a letter in the letterbox caused both police officers to form a suspicion that the envelopes could contain drugs.
It is not in dispute that removing the envelopes from the letterbox in the circumstances which they did technically constituted a trespass and is therefore an unlawful act. However, that is not the end of the matter. There is no suggestion that either of the police officers were acting with some improper or malicious purpose. Mr Retalic did cross examine both of the officers about their assertion that they only looked in the letterbox after they had gone to the front door and ascertained that there was nobody home and about their motives for going to that address on that day without a search warrant. Mr Retalic was highly critical of both police officers actions and motives on that day. However, I am not persuaded that there was any improper motive or purpose in the police attendance at Gray Street on that day. In my view, they were doing no more than conscientiously carrying out their duties having received anonymous information from a member of the public about alleged drug dealing from premises which had previously not been brought to the attention of the police and which, if true, meant that substantial drug dealing was taking place from those premises. It should also be borne in mind that on the day the police went to the premises at 182 Gray Street Adelaide they had no idea of who or how many persons occupied the premises.
The investigation could therefore have hardly been at a more preliminary stage when the police knocked on the front door that afternoon armed with no more than information contained in the Crime Stoppers Report. In my view the actions of the police officers in deciding to seize the envelope then and there without waiting to obtain a search warrant were reasonable in the circumstances. Given the nature of the operation which was suggested in the Crime Stopper Report it was a fair assumption that any drugs contained within the envelope in that letterbox would not remain there for very long. Moreover, at that stage the police had no way of knowing which one of the occupants of those premises might have put the envelopes in that letterbox.
I therefore accept that the police acted in good faith when they seized the envelopes and that whilst the seizure did constitute a technical trespass I am satisfied that in all of the circumstances that that unlawful act can be properly characterised as trivial.
In my view it would be inappropriate to exercise the public policy discretion in these circumstances to exclude the evidence of the drugs in the envelopes. That was evidence in itself of a very serious offence given the nature of the drug and the quantity in the envelope.
As to the subsequent investigation and the evidence obtained there from, in particular the surveillance of the premises and the telephone intercepts, there is no suggestion that police actions with regard to both those lines of investigation was in itself unlawful. Subsequent investigation unearthed highly probative evidence of substantial drug dealing from those premises. Investigation also unearthed evidence which pointed overwhelmingly to the accused as the perpetrator.
For all of these reasons I reject the submissions that the evidence obtained as a result of the examination of the letterbox on that day and subsequent to the 29^th June 2002 should be excluded in the exercise of the discretion.
The application for a “basha” enquiry in relation to the circumstances into which the witness Benjamin Norman became a crown witness was also refused by me for the following reasons:-
1.      The accused was in possession of Mr Norman’s statement prior to the committal;
2.      There was no application at the committal proceedings for Mr Norman to be called as a witness at the committal;
3.      Matters about which the accused alleged that he was uninformed about, namely as to whether the witness Norman was granted immunity, were matters which in fact had already been clarified by the prosecution by the date of the argument. That fact was conceded by Mr Retalic.
4.      The Prosecution has complied with its duty of disclosure with relation to that particular witness.
All of the matters which the accused wish to explore were matters which went to the credibility of the witness. I formed the view that there was no prejudice to the accused as all of these matters were capable of being explored in cross examination at the trial.

No results found.