R v Ursida - [2016] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v URSIDA
Criminal Trial by Judge Alone
[2016] SADC 70
Ruling of Her Honour Judge S David
13 April 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused applied under Rule 49 of the District Court Criminal Rules for orders that the Prosecution not be permitted to lead evidence relating to the search of two premises and on the basis the searches were unlawful. Application dismissed.
District Court Criminal Rules R 49; Summary Offences Act 1967 s 67(4), referred to.
R v Nguyen (2013) 117 SASR 432; Bunning v Cross (1978) 141 CLR 54, considered.

R v URSIDA
[2016] SADC 70
Introduction

The accused applied under Rule 49 of the District Court Criminal Rules for orders that the Prosecution not be permitted to lead evidence seized during a search of two residences on the basis that the searches were unlawful. On 25 July 2014, police attended at Unit 3/22 Ina Avenue, Ottoway (‘the unit’) and 91 Rosewater Terrace, Ottoway and seized drugs and other relevant items from each premises.
I ruled the search was not unlawful and declined the application. I now provide reasons for that ruling.
Evidence was called from Detectives Michael Vanderwoude and Mark Hanssen on the voir dire, along with the accused.
Counsel for the applicant contends that Detective Vanderwoude did not have a reasonable suspicion for the purposes of s 67 of the Summary Offences Act 1953 (‘SOA’) so as to lawfully carry out a search of the premises of the unit. The Prosecution concedes that if the police search of the unit was unlawful and the evidence excluded, then the subsequent search of 91 Rosewater Terrace, Ottoway was also unlawful and the evidence should be similarly excluded.
I turn to the evidence on the voir dire.
Detective Vanderwoude
Detective Senior Sergeant Vanderwoude has been a police officer for sixteen years. In July 2014, he was stationed at the Crime Gangs Task Force. On 25 July 2014, he attended a briefing in relation to the accused. Police attended at the accused’s home premises of 20 Ina Avenue, Ottoway. Detective Vanderwoude executed his general search warrant. At this time, he had no information which connected the accused to either the unit or 91 Rosewater Terrace, Ottoway.
Prior to attending at 20 Ina Avenue, Detective Vanderwoude had received information that the accused was involved in drug trafficking. In particular, he was advised of ‘Operation Jack Knife’, an investigation into a syndicate responsible for trafficking illicit substances, mainly methylamphetamine and ecstasy. He was also informed that the accused was associated with other persons of interest named in the Operation and there were intercepted telephone communications between the accused and others which suggested he was involved in this syndicate.
Detective Vanderwoude was also aware that the accused had previously been arrested for two counts of trafficking in methylamphetamine at 20 Ina Avenue on 17 May 2011. He was aware that the accused was a member of the ‘Finks’, an Outlaw Motorcycle Gang and the ‘Finks’ were involved in the drug trade.
During the search of 20 Ina Avenue, Detective Vanderwoude’s attention was drawn to several mobile phones, as well as a large amount of cash secreted behind a kick board of a wardrobe in the main bedroom and packaged in four vacuum sealed bags. The cash was not immediately seized by police.
Detective Vanderwoude also searched the rear yard of the premises. He noticed on the garage roof of the unit a storm water pipe which ran into the rain water tank of 20 Ina Avenue. Detective Vanderwoude said he also noticed a dome type security camera at the front of the unit which was similar in appearance to a security camera situated out the front of 20 Ina Avenue. Once inside the premises, Detective Vanderwoude was advised that the security camera outside the unit appeared to be monitored from the living room of 20 Ina Avenue. There was a split screen television monitor which showed live images of the view from the unit towards the road. Detective Vanderwoude said he also noted that Units 1 and 2 of 22 Ina Avenue appeared to be well kept, however the front porch area of the unit appeared dirty and unkempt.
Detective Vanderwoude gave evidence that he next made some observations of the unit while still standing on the eastern boundary of 20 Ina Avenue. He said he looked through a gap in the corner of an enclosed carport attached to the unit and saw hydroponic equipment associated with the cultivation of cannabis. He saw hosing, silver ducting and evaporative air conditioning units. Detective Vanderwoude said he thinks he made his observations from the northern end of the carport and that he could see a partial view of the air conditioning units.[1] He said he did not have to adjust or move the lucenite panelling of the carport to see into the carport.
[1] As shown in P4, photos 2 and 3.
Detective Vanderwoude gave evidence that by the time he made his observations of the hydroponic equipment, he already suspected that the unit was being used as a ‘safe house’ for drugs. He said a safe house is a premises used by persons involved in the mid to high level illicit drug trade to store drugs and other illicit items to avoid police detection. He said his observations into the carport simply confirmed his earlier suspicions.
Detective Vanderwoude said that he suspected there were drugs at the unit on the basis of the following information: the material he had concerning the accused’s current involvement in ‘Operation Jack Knife’ (including telephone data, surveillance, informant and crime stoppers information); the accused’s prior convictions for drug trafficking; the connection between the accused’s home at 20 Ina Avenue and the unit (including the piping that led from the unit to the water tank and that a security system at the front of the unit was monitored from the accused’s living room); the unoccupied, unkempt appearance of the outside of the unit; and the $17,800 vacuum sealed and secreted in the accused’s bedroom at 20 Ina Avenue.
Detective Vanderwoude said he obtained a key from the accused to the unit, entered and searched the property. The methylamphetamine and cannabis, the subject of counts 1 to 7 inclusive were located at this premises.
Cross-Examination
In cross-examination, Detective Vanderwoude agreed that his briefing related to the property at 20 Ina Avenue, the accused and the accused’s associates. He did not know of any link between the accused and the unit or between the accused and 91 Rosewater Terrace at the time of his attendance at 20 Ina Avenue. He was however informed that the accused and others were ‘salting’ methylamphetamine from liquid to crystal form somewhere in the Ottoway/Rosewater area. Detective Vanderwoude agreed that no drugs were found at 20 Ina Avenue. He did not accept however, that this lessened his suspicion of the accused. He said he just believed that drugs were at another premises.
In respect of the security camera at the unit, Detective Vanderwoude disagreed that he would expect a safe house to have surveillance at all entries rather than just one entry. He said ‘in the past CCTV has caused outlaw motorcycle gangs considerable hardship in terms of evidence used against them’.[2] He said in this case the accused could move in a covert manner from 20 Ina Avenue, through a gate to 91 Rosewater Terrace and then through a rear gate to 22 Ina Avenue. He agreed that the presence of a security camera alone is not inherently suspicious.
[2] T 83-84
Detective Vanderwoude said that he may have become aware of tenancy documents found at number 20 Ina Avenue in relation to the unit before he entered that property. He agreed that he didn’t make any enquiries about any tenants before he went into the unit. He said it was more important to him to execute the search warrant in case evidence was lost or destroyed.
Defence counsel suggested to Detective Vanderwoude that his suspicion was not formed until after he made his observations of the items inside the carport. It was suggested that had his suspicion already been formed by this stage, he would have simply executed his warrant and not continued to gather information about the premises. Detective Vanderwoude disagreed. He said that he wanted to gather as much information as possible for safety and operational reasons. He did not wish to alert anyone inside the unit to the police’s interest in the unit so as to afford them an opportunity to dispose of evidence.
Detective Vanderwoude was taken to his notes where he made a record of his observations. He made the following notes: ‘hydro equipment in garage of 3/22’, ‘water in 20’s tank’, ‘back gate leading to 91 from 20’, ‘security camera 3/22 monitored in 20’, ‘no clothing or bedding’, ‘Ursida visibly nervous, red in the face when obtaining key contrast to previous demeanour’.[3] He said this was not a list of his observations upon which his suspicion was founded but a hastily made list of things that he had observed at 20 Ina Avenue and the unit. He said the notes were made ‘to remind us’.[4]
[3] T 99
[4] T 100
In respect of the observations made by Detective Vanderwoude through the gap into the enclosed carport, three photographs were put to him.[5] The photographs were taken after the hydroponic items were removed from the carport, and depicted a very limited line of vision from the north eastern corner of the carport. Detective Vanderwoude denied the photos showed his line of vision at the time he made his observations. He disagreed that if he tried to improve his angle without moving the lucenite, all that could be seen was a solid pole. He denied having moved or broken the lucenite to make his observations on 25 July 2014.
[5] VD-D8
It was suggested to Detective Vanderwoude that he and Detective Hanssen went onto the driveway of the unit to gather information, returned to 20 Ina Avenue and took all the keys from the kitchen area without any conversation with the accused and then returned to the unit. Detective Vanderwoude said this was not his recollection. He said that during his search of 20 Ina Avenue he formed a suspicion in respect of the unit and asked the accused for the keys and then attended at the unit and searched the premises.
Detective Vanderwoude agreed that there was an occasion four to six months after the initial search on 25 July 2014, when he attended at the back yard of Unit 1/22 Ina Avenue. He said he jumped over the fence to get into that property. He agreed that the accused confronted him on this occasion. Detective Vanderwoude said he was there to obtain statements from the other occupants of Units 1 and 2. He denied that he told the accused his reason for being there and said it was inherently dangerous to inform a member of an outlaw motor cycle club that you are attempting to take statements from potential witnesses.
Detective Vanderwoude denied that prior to his observation of the inside of the enclosed carport his ‘suspicions’ in respect of the unit were mere ‘idle wondering’. He denied that he had moved the framework of the carport to make his observations of the hydropic equipment inside the carport. He denied that those observations formed the basis of his suspicions.
Detective Hanssen
Detective Hanssen joined the Drug Investigation Branch in August 2006 and worked there until September 2012. In September 2012, he joined the Crime Gangs Task Force, where he was stationed in July 2014.
Detective Hanssen attended the police briefing in respect of the accused on 25 July 2014, and participated in the search of 20 Ina Avenue, Ottoway. His role was as the search coordinator.
Detective Hanssen gave evidence that police entered and searched the unit under the authority of Detective Vanderwoude’s general search warrant. Subsequently, 91 Rosewater Terrace was searched under the authority of his general search warrant.
Detective Hanssen said that prior to the search of the unit, he and Detective Vanderwoude walked down the driveway and Detective Vanderwoude then returned to 20 Ina Avenue to obtain the keys to the unit from the accused.
Detective Hanssen gave evidence that police discovered methylamphetamine and hydroponically grown cannabis inside the unit. He said he suspected that he would find either another cannabis crop or a methylamphetamine lab at 91 Rosewater Terrace. He formed that suspicion because of the physical connection between the unit and 91 Rosewater Terrace via the gate between the properties; the accused’s involvement in ‘Operation Jack knife’ and prior convictions for drug trafficking; the large amount of cash in vacuum sealed bags secreted at the accused’s home; and his own police experience that multiple addresses are often used in the cultivation of cannabis as well as the manufacture of methylamphetamine.
Cross-Examination
In cross-examination, Detective Hanssen was asked whether Detective Vanderwoude had told him that the hydroponic equipment was one of the reasons for exercising his general search warrant. Detective said: ‘Quite possibly. My recollection of the order of events was that identifying those items was – the suspicions to attend next door were developed before then and that was the icing on the cake, so to speak, almost change your suspicion of reasonable cause to suspect to believe that there would be a crop next door’.[6]
[6] T 179.
Detective Hanssen said he and Detective Vanderwoude were in the driveway of 22 Ina Avenue when Detective Vanderwoude decided to go back to 20 Ina Avenue and ask the accused for the keys to the unit. Detective Hanssen said that the decision to execute the general search warrant had already been made by this stage. He said he was not present when Detective Vanderwoude asked the accused for the keys. Detective Hanssen agreed that in a statement dated 25 September 2014, at page three, paragraph two, he said: ‘I queried with Ursida whether he had keys to open unit 3/22 Ina Avenue. He handed those keys to me’.[7] He also agreed that he provided a second statement dated 20 October 2014, which was identical to the earlier statement, except that the abovementioned sentence has been removed.[8] Detective Hanssen said that his only explanation for the change is that in reviewing his initial statement he realised that it was inaccurate and presented a fresh statement.[9] Detective Hanssen agreed that on 20 October 2014, he witnessed Detective Vanderwoude’s statement but denied that he had spoken with him about the contents of his declaration, or altered his statement because of what he had read in Detective Vanderwoude’s declaration. He said he cannot recall reading Detective Vanderwoude’s statement but 99.9% of the time he does not read statements that he has witnessed.[10]
[7] T 183.
[8] T 184.
[9] T 184.
[10] T 184-185.
Defence counsel suggested to him that he took all of the keys from the rack in the kitchen of 20 Ina Avenue and then went to the unit with Detective Vanderwoude. They looked around the property of 22 Ina Avenue. It was suggested that Detective Vanderwoude then returned to 20 Ina Avenue, spoke with accused and told him they had seen something suspicious at number 22. Detective Hanssen said he could not recall this having occurred.
Detective Hanssen agreed that when he first arrived at 20 Ina Avenue, he did not have a reasonable suspicion to search the property at 91 Rosewater Terrace. Detective Hanssen was not aware of any documentation located in the search of 20 Ina Avenue which linked the accused to 91 Rosewater Terrace. Detective Hanssen agreed that it was only after the searches of 20 Ina Avenue and the unit that he formed a suspicion in respect of 91 Rosewater Terrace.
Accused
The accused gave evidence on the voir dire. The accused said the security camera was installed at the front of the unit because he needed to monitor the driveway which was common to all three units. The driveway needed to be kept clear in case of an emergency. He said he had experienced problems with the tenants at the front of the property parking their cars and blocking the driveway. The accused said the cameras at 20 Ina Avenue did not have a dome appearance and were different from the camera in the front of the unit.
The accused said that during the search of 20 Ina Avenue, Detective Hanssen came straight into the kitchen and grabbed a set of keys for 22 Ina Avenue. He said he saw him walking down the driveway and looking around the units. The accused said he became upset and angry because they had not asked him for the keys. Detective Hanssen returned to 20 Ina Avenue with Detective Vanderwoude and told the accused that the police were going to search the unit under the authority of a general search warrant. He was then asked to provide the police with the keys for the unit.
Detective Hanssen later returned to 20 Ina Avenue and asked for the keys to 91 Rosewater Terrace. The accused said he gave him the keys. Detective Hanssen said he would execute his general warrant to search that premises. After the searches were complete, the accused said that he noted that the lucenite material of the enclosed carport of the unit had been disconnected from the pole and cracked.
The accused said that four or five months after the search, he saw Detective Vanderwoude in the back yard of Unit 1. He said Detective Vanderwoude told him he had jumped the fence and needed to talk to the tenants. The accused said that he gave Detective Vanderwoude access to the unit. He said Detective Vanderwoude did not produce his general search warrant on this occasion.
In cross examination, the accused denied that the camera outside the unit appeared to be more focussed on the area immediately outside of the unit rather than a view down the driveway. The accused denied that the person who installed the camera adjusted it so that it focussed on the area outside of the unit, so that the accused could see persons entering and leaving the unit.
In respect of the keys to the unit, the accused denied it was Detective Vanderwoude who asked him for the keys to the unit.
The accused denied that the damage he says he saw to the carport was caused by previous tenants. He said he last looked at the area about two weeks prior to the search and there was no damage. He first noticed the damage the day after the police search.
Power of Search and Seizure
In this instance the power to search the unit and 91 Rosewater Terrace, Ottoway resides in s 67(4) of the SOA, which relevantly provides:
67 General Search Warrants
…
(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) an offence has been recently committed, or is about to be committed; or
(ii) there are stolen goods; or
(iii) there is anything that may afford evidence as to the commission of an offence; or
(iv) there is anything that may be intended to be used for the purpose of committing an offence;
(b) the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things whether fixtures or not, in which he or she has reasonable cause to suspect that –
(i) there are stolen goods; or
(ii) there is anything that may afford evidence as to the commission of an offence; or
(iii) there is anything that may be intended to be used for the purpose of committing an offence;
(c) the officer may seize any such goods or things to be dealt with according to law.

In each instance the power to search is conditional upon the holder of the general search warrant forming a reasonable suspicion that the respective premises was a place where an offence had recently been committed or is about to be committed; or there is anything that may afford evidence as to the commission of an offence; or there is anything that may be intended to be used for the purpose of committing an offence.
In The Queen v Nguyen[11], the Court said:
A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists in the context of an investigation of the truth of that fact is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. New curiosity, speculation or idle wondering about the existence of the fact is not the same as suspicion that it exists.
…
The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational connections. On the other hand, it would be unreasonable, and would deny the power of much of its utility to demand material which supports the positive belief in the existence of the relevant facts. (citations omitted)
[11] (2013) 117 SASR 432 at 437.
Thus the suspicion must be entertained by the time the search is undertaken, it must attach to the specific premises and there must exist a rational connection between the supporting material and the suspicion so entertained in the mind of a person thinking reasonably about the information upon which the suspicion is based.
Defence Submissions
Counsel for the accused contends that the search of the unit was unlawful and that the discretion to exclude the evidence is enlivened. It is argued that Detective Vanderwoude formed his suspicion only after he looked into the enclosed carport and saw the hydroponic equipment. It is suggested Detective Vanderwoude moved the lucenite panelling and in doing so commenced his search of the unit before he had formed the requisite suspicion. Defence contends the search was therefore unlawful and should be excluded in the exercise of my discretion. In the alternative, it is argued that if I am satisfied that Detective Vanderwoude’s suspicion was formed prior to his observations into the carport, the information possessed by him was insufficient to raise a reasonable suspicion. As indicated earlier, the prosecution concedes that should the evidence of the search of the unit be excluded, the evidence of the search of 91 Rosewater Terrace must also fall with it. Counsel for the accused contends that if the search was unlawful, my discretion to exclude the evidence should be exercised in this case.
In respect of the first argument, that Detective Vanderwoude’s suspicion was formed after he observed the hydroponic equipment, defence counsel relies on the following matters. First, the list in Detective Vanderwoude’s notes, which is said to be a reference to his suspicions and includes a reference to the hydroponic equipment observed in the carport. Second, counsel submits that if Detective Vanderwoude had formed his suspicion prior to making his observations of the hydroponic equipment, it is unlikely he would have continued to gather information about the unit. Third, defence relies on Detective Hanssen’s evidence that he and Detective Vanderwoude were in the driveway of the units when Detective Vanderwoude returned to 20 Ina Avenue to obtain the keys to the unit. By contrast, Detective Vanderwoude said he obtained the keys from the accused before he first left 20 Ina Avenue. The discrepancy in the evidence is said to support a finding that Detective Vanderwoude did not form a suspicion until after he had entered the driveway of the unit and after he made his observations of the hydroponic equipment.
Defence counsel agitates for a finding that Detective Vanderwoude moved the lucenite to permit his observations and commenced a search of the unit without the requisite suspicion. They rely on the tendered photographs of the purported view (VD-D8).
In the alternative, defence counsel submits that Detective Vanderwoude’s suspicions, if formed prior to his observations of the hydroponic equipment were not sufficient to sustain a reasonable suspicion. Defence counsel contends that a police officer’s suspicion must relate to the premises the subject of the search so that even if the police officer suspected the accused of drug offences, and noted the connections between the accused’s home and the unit, there was insufficient information without more to constitute a reasonable suspicion in respect of the unit.
I turn to my findings.
Findings
First, I accept Detective Vanderwoude’s evidence that he formed a suspicion in respect of the unit before he observed the hydroponic equipment in the carport. I make that finding for the following reasons. Prior to attending at 20 Ina Avenue, Detective Vanderwoude was aware of information about ‘Operation Jack Knife’ and information that the accused was involved in a drug syndicate. He was also aware of the accused’s previous arrest and convictions for trafficking in methylamphetamine. During the search of 20 Ina Avenue, he became aware of the $17,800 vacuum sealed and secreted behind a kick board in the accused’s bedroom. He noticed a storm water pipe which extended from the gutter of the unit to the rain water tank at the rear of 20 Ina Avenue which provided a link between the two premises. He also noticed that a security camera positioned at the front door of the unit was monitored from the lounge room of number 20.
Therefore, the police officer had considerable information that the accused was involved in drug trafficking before the police attended at 20 Ina Avenue. The secreted cash at 20 Ina Avenue and the security camera which was monitored from the accused’s lounge room makes it likely to my mind that the police officer did form a suspicion of the presence of drugs and drug paraphernalia at the unit.
It is not implausible that with the abovementioned information, Detective Vanderwoude wanted to continue making observations of the unit for safety and operational reasons before he actually affected the search of the premises. The accused was a senior member of an outlaw motorcycle gang and it is understandable that the police officer wanted to tread carefully before entering the unit, and not immediately disclose the police’s interest in the unit.
Further, the notes recorded by Detective Vanderwoude are not confined to his observations of the outside of the unit but also refer to the inside of the unit and for that reason are not referable alone to the reasons for his suspicions.
As to the discrepancy between Detective Hanssen and Detective Vanderwoude about the keys, whether Detective Vanderwoude requested the keys before he first went to the unit or whether he returned to request those keys from the accused, Detective Vanderwoude said that he had already formed his suspicion before he entered the driveway. Detective Vanderwoude’s evidence was supported by the evidence of Detective Hanssen in that regard. The change in Detective Hanssen’s statements as to who requested the keys does not cause me to doubt his evidence on this point.
I am also satisfied that the Detective Vanderwoude’s suspicion was reasonably held. The information upon which he formed his suspicion was sufficient to raise a reasonable suspicion for the purposes of s 67(4) of the SOA. The information was not simply connected to the accused and his premises but also to the unit because of the security camera at the front of the unit which was monitored from the accused’s lounge room.
Consequently, I find that Detective Vanderwoude formed a reasonable suspicion sufficient to afford him the authority to search the premises at the unit under the authority of his general search warrant. I find the search was lawful.
As I have found that the search of the unit was lawful, the arguments in respect of the search of 91 Rosewater Terrace fall away. The Bunnings v Cross[12] discretion does not arise as I have found that the evidence obtained in the searches was not obtained by unlawful means.
[12] (1978) 141 CLR 74.
Accordingly, I dismiss the Rule 49 application.