R v Vassallo
[2005] SADC 44
•10 May 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VASSALLO
Reasons for Ruling of His Honour Judge Smith
10 May 2005
CRIMINAL LAW - EVIDENCE
Judicial discretion to admit or exclude evidence - whether General Search Warrant validly issued - discretion to issue General Search Warrant pursuant to s67 of Summary Offences Act 1953 (SA) delegated to Deputy Commissioner of Police - whether criteria for eligibility to hold General Search Warrant in general orders made by the Commissioner of Police constituted a fetter on the exercise of delegated discretion by the Deputy Commissioner such as to render the issue unlawful - application to exclude evidence obtained as a result of the search on the basis of the invalidity of the warrant dismissed.
Controlled Substances Act 1984 ss 32(1)(a), 32(1)(b), 32(1)(e); Summary Offences Act 1953 s67(1)(f); Police Act 1988 (SA) ss 11, 19, referred to.
Question of Law Reserved on Acquittal (No. 5) (2000) 76 SASR 356; Rv McKelliff (2004) 87 SASR 476; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; O'Sullivan v Farrer (1989) 168 CLR 210; Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89; Rendell v Release on Licence Board (1987) 10 NSWLR 499; Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634; British Oxygen Co Ltd v Board of Trade [1971] AC 610; Quark Technologies v Workcover (1997) 70 SASR 153, considered.
R v VASSALLO
[2005] SADC 44
Upon his arraignment on the 8th December 2004, in the absence of a jury panel, the defendant Cosimo Vassallo pleaded not guilty to the following four offences:
1.Producing cannabis. (Section 32(1)(a) of the Controlled Substances Act 1984).
Between the 1st day of March 2003 and the 22nd day of May 2003 at Woodside, knowingly produced cannabis, a prohibited substance.
2.Possessing Methylamphetamine for sale. (Section 32(1)(e) of the Controlled Substances Act 1984).
On the 21st day of May 2003 at Woodside, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
3.Possessing Methylamphetamine for sale. (Section 32(1)(e) of the Controlled Substances Act 1984).
On the 21st day of May 2003 at Woodside, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
4.Taking part in the manufacture of Methylamphetamine. (Section 32(1)(b) of the Controlled Substances Act 1984).
Between the 1st day of May 2003 and the 22nd day of May 2003 at Woodside, knowingly took part in the manufacture of methylamphetamine, a drug of dependence.
The declarations allege that in the early hours of the morning of the 21st May 2003 police officers, including Detective Sergeant Rodney Arthur Ford who held a General Search Warrant, attended and searched the defendant’s residence at Woodside. They located cannabis plants, quantities of methylamphetamine and the trappings of a methylamphetamine manufacturing enterprise. The defendant challenged the lawfulness of the issue to Detective Sergeant Ford of the General Search Warrant and sought to exclude from the evidence the results of the search.
On the 8th December 2004, after hearing argument, I determined to allow a voir dire inquiry to take place. The defendant’s application pursuant to Rule 9 sought the following order:
“Excluding all evidence obtained as a result of the execution of the General Search Warrant issued to Detective Sergeant Rodney Arthur Ford at Lot 172 Naughton Road, Woodside on the 21st May 2003.”
Basis for Voir Dire enquiry – onus – McKelliff distinguishable
There was no suggestion in argument that the voir dire inquiry was justified because the General Search Warrant issued to Detective Ford was invalid on its face. Rather, the argument was that the Deputy Commissioner of Police, in exercising the discretionary power to issue the warrant pursuant to s67 of the Summary Offences Act 1953 (SA), a discretion which was delegated to him by the Commissioner of Police, bound himself by a list of prerequisites imposed by Commissioner of Police. Those prerequisites, it was argued, amounted to an impermissible fetter on the free exercise of the discretion and rendered the decision to issue unlawful. In my view such a challenge to the warrant was a permissible topic for a voir dire inquiry (see Question of Law Reserved on Acquittal (No. 5)[1]).
[1] (2000) 76 SASR 356 per Mullighan J at 1[14-30]
There was no debate that the defendant bore the onus of establishing, on the balance of probabilities, that the issue of the warrant was unlawful and that the evidence obtained thereby ought to be excluded from the evidence at trial (see Question of Law Reserved (supra)[2]).
[2] per Lander J at [101-105] and per Mulligan J at [31-34]
The DPP contended that a voir dire hearing was not justified because the defendant’s contention about the validity of the warrant was fully answered, in a way adverse to the defendant, in the case of R v McKelliff[3]. The judgement in McKelliff deals with the nature and scope of the Commissioner’s discretion[4]. The focus of the argument in this case is whether the exercise of the discretion by the Deputy Commissioner was unlawful because it was impermissibly fettered by a list of constraints imposed by the giver of the discretionary, namely the Commissioner. That was not directly canvassed in either the arguments or the judgment in McKelliff.
[3] (2004) 87 SASR 476
[4] McKelliff per Perry J at paras 57-95
Accordingly, I accepted that McKelliff is, in the above sense, distinguishable though much of what was said by Perry J at paras 57-95 as to the parameters of the discretion has application in this matter as will become clear.
Legal Parameters
The material part of s67 of the Summary Offences Act 1953 (SA) provides as follows:
“67 (1)Despite any law or custom to the contrary, the Commissioner may issue general search warrants to such police officers as the Commissioner thinks fit.”
The above sub-section plainly confers on the Commissioner of Police a wide discretion. As indicated, the scope of this discretion was the subject of the decision in McKelliff. The following propositions can be distilled from the judgment of Perry J with whom Doyle CJ and Gray J agreed:
·the Commissioner’s power to delegate as per s19 of the Police Act includes the power to issue general search warrants (paras 64-67);
·the sub-section authorises the Commissioner to issue general search warrants “to such members of the police force as the Commissioner thinks fit”. In doing so the Commissioner is not obliged to consider the fitness of the recipient but rather the words “thinks fit” simply mean that the identification of a person as a recipient is entirely a matter for the discretion of the Commissioner (para 90);
·to the extent that any inquiry might be necessary the Commissioner is entitled to act upon a report prepared by for instance, the Manager of the Human Resource Management Branch of the South Australia Police identifying appropriate recipients (para 91);
·it would be a proper exercise of the power to issue a search warrant for the Commissioner to identify the recipient by reference to:
·the particular division or section in which they work;
·the duties which they may be called upon to perform;
·their need for such a warrant; or
·a combination of the above matters (para 92).
The issue of a warrant is an administrative act (see Question of Law Reserved (No. 5)[5]). It follows that the principles of Administrative Law apply. I turn to some of the applicable principles.
[5] per Lander J at [48-51]
The statute conferring the discretionary power may specify the considerations to be taken into account in the exercise of the discretion. If such considerations are not spelled out then the discretion is to be exercised by reference to the subject matter, scope and purpose of the legislation (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd[6]; O’Sullivan v Farrer[7]).
[6] (1986) 162 CLR 24 at 39-40
[7] (1989) 168 CLR 210 at 216
In this case neither s67 nor the balance of the provisions of the Summary Offences Act set out any considerations which would guide the exercise of the discretion. Nonetheless there are constraints.
The decision maker must not take into account extraneous or plainly irrelevant matters. Further, the decision maker cannot bind himself by inflexible rules which usurp the discretion or allow third persons to control or dictate the decision. (Bread Manufacturers of NSW v Evans[8]; Rendell v Release on Licence Board[9].) Also, there is still the requirement that even the broadest of discretions be exercised reasonably (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation[10]).
[8] (1981) 56 ALJR 89 at 95 and 99-100
[9] (1987) 10 NSWLR 499 at 503-505
[10] (1948) 1 KB 223 per Lord Greene MR at 228-231
In this matter there is no doubt that in exercising the discretion the Deputy Commissioner had regard to, what I will call neutrally at this stage, parameters of the Commissioner’s making. The defence argue that these “parameters” were impermissible fetters. The authorities make it clear that for a valid and lawful exercise of a wide statutory discretion, such as that conferred by s67, it is permissible for the decision maker to have regard to policy considerations which guide rather than control the making of the decision. But if the guidelines control, fetter or inflexibly confine the exercise of the discretion it will be rendered unlawful. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[11] Brennan J said on this topic:
“The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy so as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minster will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.”
[11] (1979) 2 ALD 634 at 640, 641
In British Oxygen Co Ltd v Board of Trade[12] Lord Reid said as to the question of when a policy becomes an impermissibly inflexible rule:
“The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application” ... I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all.”
[12] [1971] AC 610 a 625
Ms Powell QC suggested that British Oxygen may not be wholly accepted in Australia but I note that it was referred to with approval by the Full Court of the Supreme Court of South Australia in Quark Technologies v Workcover[13].
[13] (1997) 70 SASR 153 per Debelle J at 164
The above principles in the context of this matter can be summarised in the following terms. Where a wide, apparently unfettered, discretion such as that embodied in s67 is delegated, unless the delegation is specifically conditional it must be regarded as having been delegated absolutely. The delegate exercising the discretion is obliged to exercise it properly and fully. It is the delegate’s discretion to exercise. The delegate can have regard to guiding criteria of his or another’s making but were the delegate to be hamstrung, as opposed to guided, by stipulations or prerequisites laid down by, for instance, the donor of the discretion, the exercise of it would be unlawful.
With the above principles in mind I turn to the facts and in particular my findings as to the evidence adduced on the voir dire which consisted of a number of documents and the testimony of Deputy Commissioner John White. Mr White’s evidence related to the basis upon which he exercised his delegated discretion or to use the words of counsel for the Director of Public Prosecutions “... what the decision maker did and thought ...” (41).
Voir Dire Hearing – applicable statutory provisions – evidence
The General Search Warrant held by Detective Ford had been issued to him by Deputy Commissioner John Ronald White. The decision to issue, or rather re‑issue, was made on or about the 15th December 2002 (82) and the warrant commenced when signed on the 1st January 2003 (82).
Mr White was appointed a Deputy Commissioner of Police on the 15th August 2002 (70). His duties included issuing General Search Warrants (71). That duty was delegated to him by the Commissioner of Police pursuant to s19 of the Police Act 1998 (SA) (71-73; Exhibits P1 and P2). Section 19(1) of the Police Act provides as follows:
“(1)The Commissioner may, by instrument in writing, delegate any of the powers or functions conferred on, or assigned to, the Commissioner by or under this or any other Act –
(a) to a particular person; or
(b) to the person for the time being occupying a particular position.”
In this case the Commissioner executed the necessary instrument of delegation directed to the Deputy Commissioner of Police on the 28th January 2000 which provided, inter alia, as follows:
“Pursuant to s19 of the Police Act 1998 ... I hereby delegate to you all of the powers or functions conferred on or assigned to me by or under the Summary Offences Act, 1953 ...”
(see Exhibit P1)
The fact of delegation of a particular power does not “derogate from the power of the delegator to act personally in any matter ...” (see s19(3)(b) of the Police Act). So the Commissioner could issue a General Search Warrant during the subsistence of the delegation of that power to the Deputy Commissioner. Further, it is accepted in this case that the delegation was absolute and not conditional as is permitted by s19(3)(a) (116).
Pursuant to s11 of the Police Act the Commissioner is empowered to make “general or special orders”. Such orders are contained within a General Duties Manual. The April 2001 edition of the Manual was tendered (see Exhibit P3). The Manual included a preamble by the then Commissioner dated the 9th April 2001 couched in the following terms:
“To all employees of SAPOL
As we all work together to achieve SAPOL’s vision of being held in the highest regard as a modern, motivated, progressive and professional organisation, it is appropriate that we have instructions that will help us to maintain standards and be consistent in achieving this end.
The general orders in this General Duties Manual are issued to assist you in effectively and efficiently performing your duties. Our Strategic Intentions recognise that rules and regulations alone do not inspire innovation, commitment or positive attitude, however, they do have their place.
Not all situations encountered by police can be managed without some form of assistance and so some of these orders are as guidelines which should be applied, together with commonsense. Most orders, however, as is indicated by the form in which they are expressed, are mandatory and must be followed. Moreover, at all times you are expected to act ethically and with integrity. Deviation from these orders without justification may attract disciplinary action.
You should make yourself thoroughly conversant with the contents of this manual to ensure that in the pursuit of best practice SAPOL fulfils its roles and functions in the best possible way.
MA Hyde
Commissioner of Police9 April 2001”
(The italics are mine)
At page 261 under the heading “Search Warrants” is in part the following:
“General Search Warrants
The Commissioner issues general search warrants under section 67 of the Summary Offences Act to:
·selected officers of police
·officers in charge of stations
·designated detectives
They may only be issued to officers who, because of their duties they perform, have a genuine need to possess a general search warrant.”
(Hereinafter referred to as “General Order 261/01)
In his evidence in chief, Mr White characterised the above order as “general guidelines” (73). Further, he explained that the words “officers of police” and “officers” within General Order 261/01 means commissioned officers (74), and “designated detectives” are police personnel who have completed certain courses and are formally designated as detectives (75, 76). He added that apart from the eligibility criteria particularised in the above “guidelines” he recognised another category of eligible applicant, which he characterised as exceptional, namely a member of the South Australia Police, not referred to in the General Order 261/01 who “needs to have a general search warrant to perform their duties” (76). In that connection he referred to a memorandum issued by himself and dated the 16th October 2003 (76; see Exhibit P4).
Mr White then, in evidence in chief, had his attention drawn to a memorandum dated the 10th December 2002 provided to him by the Manager of the Human Resource Management Branch of South Australia Police which identified the police who were suitable recipients of renewed or reissued general search warrants (78; Exhibit P5). Mr White explained that he perused the list and ensured the appropriateness of the reissue before himself signing the renewed warrant (79). Detective Ford was included in the said list and the general search warrant the subject of this matter, was duly issued to him and dated the 1st January 2003 (81, 82; Exhibit P5 p7, Exhibit P6).
Mr White pointed to documents which provided examples of direct applications to him for warrants and which included applications by persons who were not covered by the “guidelines” (84-87; Exhibits P7, P8).
Finally Mr White acknowledged that his duties in this area also embrace reviewing and revoking general search warrants and in that respect he identified a memorandum dated the 29th January 2003 directed by him to executive members of the police (87, 88; Exhibit P9).
In cross-examination Mr White said that he was not bound by General Order 261/01. He said that he regarded the Order as providing guidelines for the exercise of the delegated discretion (89-93). He was not deflected from this position even when confronted with a number of documents which arguably suggested that General Order 261/01 was used by him as a binding and rigid list of eligibility criteria for a warrant (92, Exhibit P4; 93, Exhibit P9). He sought to counter Ms Powell QC’s cross-examination on this topic by drawing her attention to the fact that he issued warrants to police personnel who did not meet the criteria in General Order 261/01 (103, 131; Exhibit P4).
Arguments – Conclusions
Counsel for the defendant, Ms Powell QC, challenged the credibility of Mr White. She contended that his evidence was fashioned to support the case for the DPP. She argued that despite what Mr White said in his evidence the objective evidence constituted by the documents in the context of ss11 and 14 of the Police Act established that he regarded General Order 261/01 as not only binding but also as defining the basis upon which warrants would be issued. She contended that I should not shrink from finding that his evidence was disingenuous.
I do not accept that. I consider that what occurred in Mr White’s evidence and in particular his cross-examination was a debate about the meaning of the language used by him in several internal departmental documents. In my view it is probable that for the first time Mr White was confronted about the parameters of his delegated powers and was driven to explain some imprecise language used by him in several internal memoranda.
In summary Ms Powell QC contended that General Order 261/01 bound Mr White and despite his denial it was accepted by him as binding. She argued that the Order did not constitute a permissible guide to the exercise of the discretion but rather was a fetter which rendered the decision unlawful. She contended that the occasional granting of a warrant outside the eligibility criteria of the Order was exceptional and only served to prove the existence of the rule.
In response counsel for the DPP Mr Lesses contended that McKelliff has made it clear that the Commissioner of Police or his delegate may lawfully exercise the discretion to issue such a warrant by reference to the policy constituted by General Order 261/01. Whilst he submitted that the Order was properly characterised as a guideline and therefore did not offend against existing principles, he also advanced an alternative and more hardline position, namely that within the structure of the Police Department a more inflexible application of criteria, such as that set out in the Order should be accepted as a lawful basis for the exercise of discretion with perhaps the facility to admit of the occasional exception as per British Oxygen. In the result it is not necessary to deal with this aspect of the DPP’s contention if indeed it be materially different from the primary argument.
I turn now to the detail of the contentions and my decision in respect of each.
·General Order 261/01 binding
As indicated Ms Powell QC contended first of all that Mr White was bound by General Order 261/01. She submitted, in particular, that the Order was directed “all employees of SAPOL” and was made pursuant to ss11 and 14(2) of the Police Act. She argued that he was constrained to issue the warrants only in accordance with the Order.
Section 14(2) provides as follows:
“(2)The Deputy Commissioner must exercise and perform such of the powers, authorities, duties and functions of the Commissioner as the Commissioner may direct (either generally or in a special case).”
It is notable that General Order 261/01 was not identified as a “direction” to the Deputy Commissioner. Without more I would not characterise it as such. Rather, the Order is clearly a product of s11 which empowers the Commissioner to make “general or special orders ... for the control and management of SA Police ...”. Mr White in his evidence said:
“The General Order does not bind me to – does not stipulate to me as to my discretion in relation to whether I approve or not a general search warrant. So, if you are suggesting that the Commissioner makes the General Orders and, therefore, I am totally bound by that, I see it differently. My delegated authority is the Deputy Commissioner. I have the same powers as the Commissioner of Police. I use my discretion. In those circumstances, it is my decision alone as to who or who I do not issue a general search warrant to.”
(93 lines 13-22)
In my view the fact that Mr White has had delegated to him the Commissioner’s powers as specified in the Instrument of Delegation, (Exhibit P1), does not lead to the conclusion that he is exempt from the General Orders. I think however that Mr White was attempting to convey to the Court that the Order did not constrain him to issue warrants to only those personnel who met the criteria in the Order. Rather, the terms of the Order were something to which he had regard in exercising his delegated discretion. Indeed the fact that he issued to other than those who met the criteria is some evidence in support of that.
I find that General Order 261/01 did apply to Mr White, he being an employee of SAPOL, but not in the sense of constraining him to issue General Search Warrants only to those members of South Australia Police who met the criteria in the Order.
·Order Mandatory
Mr White maintained throughout his evidence that he had regard to General Order 261/01 as a guideline to the exercise of his discretion. Ms Powell QC argued that the Order could not be so characterised as it not only applied to the Deputy Commissioner but did so in mandatory terms. I cannot agree. The language of the Order is benign indeed. It is almost a conveyance of information. Indeed the preamble to the Order or letter of introduction of the Commissioner dated the 9th April 2001 draws attention to some of the orders being “guidelines which should be applied together with commonsense ...” (see Exhibit P3). In my view the Order is not mandatory.
·The language of Mr White’s own documents prove the impermissible fettering of his discretion
Ms Powell QC pointed, in particular, to two documents created by Mr White which, according to her, indicated that he considered that General Order 261/01 applied and that it rigidly prescribed the qualifying criteria for the issue of warrant (see Exhibits P9 and P4). The memo Exhibit P4 asserts that the General Order 261/01 “stipulates” who may be issued with a General Search Warrant. Further, Exhibit P9 spells out that members of Police who met the criteria of the Order would “automatically” be entitled to the reissue of a general search warrant. As I have previously indicated Mr White when confronted with these documents in cross-examination and the text of them was not deflected from his stance. He made the telling point that while the language he used could be open to such an interpretation his behaviour belied it. He did not confine himself by the criteria set out in General Order 261/01 but issued warrants to police personnel who fell outside the guidelines set out in the Order (102, 103, 131; see also Exhibits P4, P8).
Ms Powell argued that these instances should be characterised as exceptions and therefore they had the effect of proving the existence of a binding rule, namely General Order 261/01. Ms Powell QC cannot have her cake and eat it too. In my view once it is acknowledged that Mr White issued outside the criteria in General Order 261/01 then it cannot be said that the Order was accepted by him as being exhaustive of the eligibility criteria. The allowing of an exception illustrates that the Order was not accepted as the only basis upon which a warrant could be issued.
So in my view the oral evidence of Mr White, together with the documents admitted into evidence on the voir dire, indicate that he, in exercising his delegated discretion, was not confined or controlled by the terms of General Order 261/01. I accept that he had regard to its terms as a sensible rule or policy which “... guides but does not control the making of decisions ...” (see Drake at 641). Effectively Mr White has accommodated a change to the policy, namely the inclusion of a members of South Australia Police who are neither commissioned officers nor designated detectives but who nonetheless have a need to hold a General Search Warrant. He has thereby recognised a change in the policy or rule to accommodate new circumstances not embraced by the policy or rule (see British Oxygen at 625).
Conclusion
Accordingly, the decision made by Deputy Commissioner White on about the 15th December 2002 to issue the General Search Warrant to Detective Sergeant Rodney Ford was valid and lawful. Therefore the warrant is valid and lawful. So I dismiss the application to exclude the evidence obtained as a result of the execution of the General Search Warrant at Lot 172 Naughton Road, Woodside on the 21st May 2003.
In accordance with the request of both counsel, I decline to indicate, in the event that I am found to be wrong, whether in the exercise of my discretion I would or would not exclude the evidence obtained in the search.
I will hear the parties as to the future disposition of this matter.
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