R v Trout
[2008] SADC 110
•28 August 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TROUT
[2008] SADC 110
Judgment of Her Honour Judge McIntyre
28 August 2008
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Summary Offences Act 1953 s27, s67(4)(a); District Court Criminal Rules 1987 Rule 9, referred to.
R v Ireland (1970) 126 CLR 321 at 335; Bunning v Cross (1978) 141 CLR at 74; Tran Nominees Pty Ltd v Scheffler, Raven and The State of South Australia (1986) 42 SASR 361 at 369; George v Rockett (1990) 170 CLR 104; R v Frantzis (1996) 186 LSJS 301 at 305, considered.
R v TROUT
[2008] SADC 110
The applicant has applied, pursuant to Rule 9 of the District Court Criminal Rules, for orders that the prosecution not be permitted to lead evidence as to the “fruits” of a search conducted by officers Murphy, McKay and Camac on 3 December 2007 at a Caravan Park situated at 2 Tuitt Road, Aldinga South Australia being declaration statements of Michael Francis Murphy signed and dated 4 September 2007 and 18 March 2008 and Shane Smart signed and dated 4 September 2007.
The applicant is charged with possessing a prescribed firearm namely a sawn off .22 rifle without a licence, possessing a silencer and failing to store ammunition in a locked container. These items were discovered in the search of the applicant’s caravan conducted on 3 December 2007.
The applicant, Trout, was present at a property in Mintabie in northern South Australia when the police arrested the occupier of those premises for offences relating to the sale of cannabis. It appears possible that the applicant was searched. His car was certainly the subject of a search. No cannabis or related paraphernalia was located on the applicant or in his vehicle. The police dog used in connection with the search of the vehicle however gave a positive indication near the inside, rear right door of the vehicle. The door was further investigated. No cannabis was located but a portion of plastic under the door panel was, to put it neutrally, unglued.
The search of the applicant’s caravan was conducted under the authority of a general search warrant (GSW) issued under s67 of the Summary Offences Act 1953. The GSW holder was Detective Sergeant (DS) Michael Murphy. The basis of the challenge to this evidence is that the applicant contends that DS Murphy did not have “reasonable cause to suspect” any of the matters identified in section 67(4)(a).
Section 67(4)(a) relevantly provides:
(4) The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that –
(i) …
(ii) …
(iii) there is anything that may afford evidence as to the commission of an offence; or
(iv) …
DS Murphy was in Adelaide. Detective Brevet Sergeant (DBS) Haebich was in Mintabie. DBS Haebich contacted DS Fielke in Adelaide and relayed information to him that he in turn relayed to DS Murphy. It was on the basis of this information that DS Murphy is said to have formed the requisite suspicion.
Consideration of the issues in this matter has been significantly hampered by virtue of the fact that none of the three police officers involved in this chain of information kept contemporaneous notes of their conversations or the information relayed. Specifically there is no note by DS Murphy as to the things that founded his suspicion. There are, not surprisingly, differences in the evidence of the three officers as to what information was relayed. Some of these differences are significant.
DS Sergeant Murphy gave evidence that he had been told three things. First, that a gentleman by the name of Moore had been arrested at Mintabie for selling cannabis. Second, that a vehicle registered to the applicant had been located at the same premises, and that within that vehicle was a compartment in a door which had been reconfigured. Third, that the applicant had a previous conviction for producing cannabis. He said that those three pieces of information created a suspicion in his mind that there might have been evidence in relation to the commission of an offence, specifically drug dealing, at the applicant’s home address.
Suspicion is a positive feeling of actual apprehension or mistrust amounting to a slight opinion without sufficient evidence, but it is more than mere idle wondering whether it exists or not[1]. The word “reasonable” imports an objective test. There must be a suspicion based on objectively reasonable factors”[2]
[1] George v. Rockett (1990) 170 CLR 104
[2] R v Frantzis (1996) 186 LSJS 301 at 325
According to DS Murphy’s evidence, his opinion was founded on the combination of the three pieces of information referred to above. He was not, apparently, told of the positive indication of the drug dog on the right rear door or of the fact that the applicant and his car had been searched and that nothing had been located. He was not told about a prior occasion on which DS Haebich had searched the applicant’s vehicle and, whilst locating nothing of substance, had smelt the odour of cannabis.
It was certainly the case that Mr Moore had been arrested for the sale or supply of cannabis in the Mintabie area and that the applicant Trout had prior convictions for the production of cannabis. These two factors standing alone could not, in my view, reasonably be said to give rise to the requisite suspicion. I do not understand DS Murphy to be contending otherwise. The decisive factor appears to have been the information about the car door. DS Murphy’s evidence about the car door was not however correct.
DS Murphy’s evidence was that the car door had been “reconfigured”. He was cross-examined on this point as follows:[3]
[3] Transcript p11
QYou indicated that Fielke provided you with information that a door had been reconfigured, is that correct.
AYeah.
QTell me what he said to you.
AThe specifics of that I’m not sure but he made it clear that there was a compartment within the door that was unusual and could be used to transport cannabis.
QHe made it specifically clear to you there was a compartment in a door that had been reconfigured and could be used for transporting cannabis, is that correct.
AThat’s my understanding of it, yes.
QA specific compartment.
AYes.
DS Murphy’s evidence was put to Detective Brevet Sergeant Haebich as follows:[4]
QWe have just heard evidence from Mr Murphy in relation to the execution of his general search warrant at Trout’s premises at Aldinga. Mr Murphy advised her Honour that you had told Fielke that the search of Trout’s car indicated a compartment in a door that had been altered. Is that what you say you located.
AAn altered compartment?
QYes, in the door of Trout’s car, capable of transporting cannabis.
ANo.
QThat’s wrong is it.
ANot an altered compartment, no.
[4] Transcript p43
Later he said:[5]
ANot an altered compartment, what I did say was that the drug dog had had a positive indication on the right rear door, that we had taken the door skin off of the door and that the plastic which covers the metal part of the door had been pulled away from the glue at the bottom and that there was a cavity, obviously part of the door … where cannabis could have been.
[5] Transcript p44
DS Fielke, who relayed the information from DBS Haebich to DS Murphy, said that he was told about the drug dog making an indication on a door of the vehicle and that one of the doors had “been interfered with or something similar”[6]. He did not recall the terms “secret panel” or “compartment” in connection with the door nor did he recall that the door had been “modified or altered”.
[6] Transcript p55
This is not, as was put to me, simply a difference in terminology between the witnesses. DBS Haebich was clear that there had been no modification of the door, simply that a portion of plastic on the inside of the door panel was loose and capable of transporting drugs. DS Fielke was likewise clear that there had been no modification to the door. DS Murphy’s evidence was that the door had been specifically modified for the purpose of transporting drugs. Clearly it had not.
It therefore appears from DS Murphy’s evidence, that he formed his suspicion on the basis of erroneous information. That being the case I do not consider that his suspicion can be said to be objectively “reasonable” even if genuinely held. Even if the correct facts concerning the configuration of the door had been relayed to him all that can be said is that there was some loose plastic on the inside of the door panel and a space which conceivably might have been capable of transporting cannabis. That coupled only with the arrest of Moore and the prior convictions of the applicant could not, in my view, give reasonable cause to suspect that there might have been evidence in relation to the commission of an offence, specifically drug dealing, at the applicant’s home address.
I have no confidence on the state of the evidence that DS Murphy had reasonable cause to suspect that a search of the applicant’s caravan would afford evidence as to the commission of an offence. I therefore find that the search was not authorised pursuant to s67(4) of the Summary Offences Act 1953. The search was therefore illegal. However, that does not necessarily have the result that the evidence should be excluded. There is discretion to be exercised.
It could be argued that the search was justified on the basis of what was found. However that is not the test. The justification for a search must exist at the time the search is conducted. A search cannot be justified retrospectively on the basis of what is subsequently discovered. I note further that the items located were not related to dealing in cannabis.
I refer to the comments of the Chief Justice in R v Ireland:[7]
Whenever such lawfulness or unfairness appears, the judge has discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the other hand there is the public need to bring to conviction those who commit a criminal offence. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[7] (1970) 126 CLR 321 at 335
I am also conscious of what Stephen and Aickin JJ said in Bunning v Cross[8]
What Ireland involves is no simple question of ensuring fairness to an applicant but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This is being the aim of the discretionary process called for by Ireland it follows that by no means takes as its central point the question of unfairness to the applicant. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the applicant being only one factor which, if present, will play its part in the whole process of consideration.
[8] (1978) 141 CLR 54 at 74
The complete lack of documentation relating to the events is most unsatisfactory. Clearly as a matter of practicality there was nothing wrong or improper in DBS Haebich contacting someone in Adelaide and requesting the exercise of a GSW. There was further nothing improper in that person contacting a third person for that purpose. The more occasions upon which information is relayed however gives rise to the possibility that the original message is distorted or misunderstood. It is for that reason that it is important that proper notes be kept as to precisely what information was received and what was passed on. Whilst it is possible to have some sympathy for the position of DS Fielke who was at home when he received DS Haebich’s phone call there appears to be no legitimate reason why DS Murphy, understanding as he did the onerous obligations upon him as the holder of a GSW, did not make some brief notes as to the basis of his decision. I further note that he completed a statistical return on the use of a GSW (exhibit VDP1) on the day of the search. Presumably the purpose for this document is to have a record of the search and the basis upon which the search occurred. That document, being the only contemporary record of the search, is of no assistance in determining the basis of DS Murphy’s suspicion at the time of the warrant. It simply records the suspicion that the applicant was involved in the sale of cannabis.
The power under s67 is an unusual power. I am mindful of the comments of Mr Justice Jacobs in Tran Nominees Pty Ltd v Scheffler Raven & The State of South Australia:[9]
There is, I think, no doubt about the guiding principles. The issue and execution of a warrant 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 a 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 conditions upon which the warrant is authorised (Inland Revenue Commissioners v Rossminster Ltd; Crowley v Murphy per Lockhart J at pp513).
[9] (1986) 42 SASR 361 at 369
I consider that the failure to have any or any reasonable contemporaneous records relating to the basis upon which the warrant was exercised is a serious and fundamental omission on the part of a warrant holder. It is an unsatisfactory state of affairs when a court is asked to consider and attempt to reconcile evidence from a number of sources to ascertain whether the requisite suspicion existed simply because there is no record. It impedes the proper consideration of the exercise of this power. Were I to allow this evidence to be led I would be condoning a slipshod procedure that fails to adequately protect ordinary citizens in respect of the use of such warrants.
For the above reasons I rule in favour of the applicant and order that the evidence that is the subject of the Rule 9 application be excluded.
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