R v Vitor - [2017] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VITOR
[2017] SADC 116
Ruling of His Honour Judge Clayton
27 October 2017
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Accused charged with several firearms offences applied for exclusion of evidence obtained during a search of his house purportedly conducted under Firearms Act 1977 (SA) s 32 and, later, a General Search Warrant. Impugned evidence included that obtained from the accused’s mobile telephone, police having caused the accused to provide the PIN code prior to administering a caution and without recording the interview.
Held: the interview ought to have been recorded in accordance with s 74D Summary Offences Act 1953 (SA), and a caution ought to have been administered. Evidence obtained by use of the PIN excluded.
Accused argued that the searching officers did not have the requisite suspicion to enliven their search powers, and that the search of the house was therefore unlawful and the evidence should be excluded. Accused further argued that the officers were not empowered to seize a firearm from a neighbouring property.
Held: officers conducting the search had requisite suspicion, and were empowered to seize the firearm. Evidence not unlawfully obtained. Evidence admitted.
Summary Offences Act 1953 (SA) ss 67, 74D; Firearms Act 1977 (SA) s 32, referred to.
Abbott v Ramm (1994) unreported SCGRG 1064 of 1994 BC 9503114; R v Dolan (1992) 58 SASR 501; R v Haydon (No 4) [2005] SASC 18; R v Murphy (1996) 66 SASR 406; R v Nguyen [2013] SASCFC 91; Wheare v Police [2008] SASC 13, considered.

R v VITOR
[2017] SADC 116

The accused is charged with 4 offences alleging breaches of the Firearms Act 1977 (SA) or the Firearms Regulations 2008 (SA). He has applied on a voir dire pursuant to r 49 of the District Court Criminal Rules 2014 (SA), prior to the trial, to exclude evidence obtained by the police during a search of his home on 5 May 2016. He seeks to exclude evidence obtained from:
·a mobile phone seized from the defendant to which Detective Senior Sergeant McManus (“Detective McManus”) obtained a security PIN from the accused;
·the entry and search of 18 Barker Road, Prospect; and
·the entry and search of the roof of shed of a neighbouring property during which a handgun was found.
The application raises the powers to enter and search property pursuant to s 32 of the Firearms Act and the use of a General Search Warrant pursuant to s 67 of the Summary Offences Act 1953 (SA). Detective McManus is an experienced police officer who on 4 May 2016 was stationed with the Crime Gangs Task Force. He manages one of the 3 teams within the task force and has been the holder of a General Search Warrant since about 1985.
On the evening of 4 May 2016 he received a briefing from another police officer who outlined an allegation that the accused was in possession of firearms. Detective Sergeant Hanssen (“Detective Hanssen”) was with him at the time. He claimed privilege on the basis of public interest immunity over the identity of the other officer who gave the briefing. He made the following record of the information which he received:[1] "Vitor/Miko … 18 Barton Road Prospect, guns, handguns". The information included the fact that the accused was in possession of guns and that he was "waving the guns around when he parties". Detective McManus also recorded the fact that there were "New South Wales Finks" staying with him and they had access to the firearms.
[1] T 17-8.
The briefing from the unidentified source lasted 5 or 10 minutes. The source was described as "a reliable human source". Detective McManus formed the opinion that the information was credible and reliable. He understood that the information was of a recent occurrence and the firearms were at the property. On the basis of what he knew of the accused previously, Detective McManus formed the opinion that the information was correct.[2]
[2] T 24-5.
Detective McManus said that the policy of South Australian Police (“SAPOL”) is that information about unlawful possession of firearms is given immediate priority. He instructed another police officer by the name of Senior Constable McIntyre (“Constable McIntyre”) to commence preparing a tactical order and he asked one of the intelligence officers to profile the information that they had about the accused. He considered "actioning the information" that night but because of the hour it was considered better to undertake a search early the next day.[3] The decision to carry out a search was made by Detective McManus in conjunction with Detective Hanssen. The search relied upon the authority of s 32 the Firearms Act which Detective McManus said allowed them to enter and search premises where they suspected there were either firearms, ammunition, firearms parts or licenses and documentation.[4] He said that he had reasonable cause to hold the relevant suspicion both on the evening of 4 May 2016 and at the time when he and other police ultimately entered the premises on 5 May 2016.[5]
[3] T 29.
[4] T 33.
[5] T 33 L 16.
A briefing was conducted by Constable McIntyre at Netley at 8:25 AM on 5 May 2016. At about 9:20 AM police officers first assembled at a place not far from 18 Barker Road, Prospect, and then made their way around to Barker Road.
Detective McManus gave evidence that he stood back and watched from a distance from the other side of the road. Other officers entered the property by scaling a fence, the gate being locked. Having scaled the fence they went to the front door and knocked. After some delay the officers gained entrance via the front door, removed the occupants and then utilising a dog, they undertook a search.[6]
[6] T 34.
Detective McManus was identified as the forward commander which entailed overseeing the search which was actually supervised by Detective Hanssen who made the operational decisions. Detective McManus said "I was there really just to oversee the search as it took place."[7]
[7] T 34 L 33-4.
Detective McManus said that he stayed back for a while until the occupants came outside and then the accused and Ms Lowe came out of the house to the front near the driveway area. Detective McManus knew the accused whom he approached and started talking to. He described his purpose in the following way:[8]
Because I know him and I have had several conversations with him before. Because of my role within the task force I try and always when I go to searches to senior members of motorcycle gangs and I engage them. That's part of the process. I had a conversation with him ... I guess the senior members have a familiar face, they see me at searches, they see me at club events when club events were occurring, so I guess they put a face to the bigger picture of crime gangs and that's partly my role. The other part of my role is that I'm often called to give expert opinion as to membership of outlaw motorcycle gangs and understand the culture of outlaw motorcycle gangs. That's why I take those opportunities as best I can to engage with the members and in particular senior members of the group.
[8] T 35 L 5-9, 13-22.
The conversation took place near the driveway at the front of the house not far from the front door. At the time the dog was going through the process of searching. The conversation took place about 10 or 15 minutes after the police had arrived. The conversation continued:[9]
"AI spoke to him about his occupancy at that house. It was a large house, it was very, very well appointed. I spoke to him about what it was costing him to rent the place, how he was able to afford to pay that. I think the conversation progressed to what sort of work he is doing and he told me certain things about the work he was doing.
QAt any stage did you ask him to turn out his pockets?
AYes, I did.
QAfter that initial conversation.
ACan I refer to my notes here?
QYou have leave.
AI spoke to him in the driveway I spoke to him about the owner of the place. We discussed the rent he was paying, he was paying $500 a week for rent. I guess I queried with him because I knew he was on home detention bail and about where he was getting the money... I've got a note here it was around 950... I notice he was fidgeting in his pockets and I asked him to turn out his pockets and he produced a Blackberry mobile telephone. I asked him about the phone and he said it wasn't his but it belonged to friends who he had around "last night", the previous evening. At that stage I took the phone, opened it up, had a look inside the phone to see what type of phone it was. We quite often encounter Blackberry type telephones. A lot of senior organised crime figures are using these devices. I wanted to have a look inside the phone, I wanted to see if it had been encrypted as opposed to just a normal Blackberry and I opened it up and had a look inside and I saw the SIM card was a Bell SIM card. My knowledge of Blackberry phones and my knowledge of the encrypted phones is that that's a common SIM card for encrypted phones.
[9] T 35 L 35-38 & T 36, 37 L 1-3.
Detective McManus said he took possession of the phone which he later handed to the exhibit officer. He described the demeanour of the accused during the conversation at the front of the premises as "he appeared nervous, that's what I guess alerted me when he was fidgeting with his pockets."[10]
[10] T 37 L 13.
Detective McManus was not aware of any other police officer having cautioned the accused at that time and he did not caution him himself. He said he did not consider it was necessary to caution him at that point because "I didn't have any suspicion that he had committed any offence at that point. Under the circumstances it's not our practice to caution someone.”[11]
[11] T 37 L 34-6.
The prosecutor invited him to distinguish between his suspicion giving rise to the power to search and the suspicion requiring a caution. He replied:[12]
I understand the suspicion that I had about the possession of handguns, I guess, enlivens the authority or the power to search under the Firearms Act. So that's the extent of the suspicion. At that stage we certainly hadn't found any breach of the Firearms Act and there is certainly no evidence which would indicate that (the accused) had committed any offences or a suspicion that he had committed any offences, therefore I certainly didn't consider what I was doing in any conversation with him differed in any way shape or form.
[12] T 38 L 2-12.
As to the Blackberry he was asked on what basis did he seize that and responded:
It wasn't seized. I don't think it ever was seized, that phone I left it near the exhibits table I think at one point and I don't think it was ever seized. I think it was left there.[13]
[13] T 38 L 15-8.
Detective McManus said that the basis for him asking the accused to turn out his pockets was "under the Firearms Act there is authority to search persons and based on the information that we had about his possession of firearms, naturally I asked him to turn out his pockets.”[14]
[14] T 38 L 22-25.
Detective McManus said that he did not believe what the accused told him about the Blackberry belonging to another person and that he did not know the PIN but he accepted what the accused said without challenge.[15]
[15] T 39 L 1-6.
Detective McManus said that the basis for the authority for the search changed once the dogs had finished and he went inside and spoke to Detective Hanssen who told him about a delay at the door when the initial approach was made and that he believed that something might have been washed down the sink. On that basis Detective Hanssen executed his General Search Warrant.[16]
[16] T 39 L 7-21.
Detective McManus said that the General Search Warrant was executed some time after conversation with the accused at the front of the house had finished.
Detective McManus gave evidence that he went inside looking for the controls for the CCTV and after he had walked around inside he had another conversation with the accused about his telephone (an iPhone) which was on a table. He said that he asked the accused for the PIN code for his phone. When asked to relate exactly what was said he gave the following evidence:[17]
AYes, I said "what's the PIN code of your phone.
QAnd what was his response.
AAnd he gave me a number-it was 2229 I think.
QWas that the extent of the conversation?
AThat was it.
[17] T 40 L 29-33.
Detective McManus said that at that stage nothing was located in the search. He said that at that stage the demeanour of the accused “was quiet … he certainly wasn't conversing … he was just standing there quietly”.[18]
[18] T 41 L 12-8.
Detective McManus said that when he asked the accused for the PIN number "he just merely provided me with the PIN code straightaway."[19] Detective McManus informed another officer of the PIN number. At that time the accused had not been cautioned.
[19] T 41 L 23-4.
Detective McManus was asked whether he considered it necessary to caution the accused prior to asking for the PIN and he replied "No, I didn't think it was necessary." When asked "why" Detective McManus answered:[20]
I didn't suspect him of having committed any offence. We were, I guess, at that stage actively engaged in the search. It’s probably no different to asking for a set of keys for a car to search a car or "could you open up a locked door" or "cabinet". That's I guess the basis on which that question was asked, as we were undertaking the search.
[20] T 41 L 30-38 & T 42 L 1-6.
In cross examination, Detective McManus said that at the time he was speaking with the accused at the front of the property he did not have any suspicion at all that he had committed an offence. He said:[21]
There's a difference in suspicion of him having committed an offence on that occasion. We had suspicion to search the property but as we had only just started to search, we hadn't uncovered any evidence of him committing an offence at that point and it's always been my understanding that we were in the investigative stage of the enquiry and until such time as some offence has been disclosed, we’re not required to caution.
[21] T 106 L 19-26.
The cross examination continued:[22]
QSurely your training has included the fact that if you have a suspicion that someone has or may have committed an offence, that gives rise to your obligation to caution.
AThat's not my understanding and, as I've explained, we are at the investigatory stage, it hasn't hit the evidentiary stage at that point, we haven't uncovered any evidence of the commission of an offence at that point in time. Certainly we've executed our authority to enter the place and search but beyond that we haven't got that far. In 40 years of policing, I've never cautioned someone under those circumstances and I don't know any member of SAPOL, given the same circumstances, would do that.
[22] T 106 L 27-28 & T 107 L 1-2.
Detective Hanssen was also stationed with the Crime Gangs Task Force. He was 2nd in charge to Detective Senior Sergeant McManus and was the holder of a General Search Warrant. He confirmed the evidence of Detective McManus with respect to the information from the informant whose identity was not disclosed. He was satisfied with his knowledge of the human source that the information was reliable.[23]
[23] T 116-8, 123.
Detective Hanssen attended the briefing on 5 May and said that they were on the scene at 18 Barker Road, Prospect at 9:20 AM. Some members of the team gained access to the property by using a ladder to climb over the fence. They then opened the main gate for the others and the front door was approached. There was a slight delay in response, a female queried who was there and Detective Hanssen said they were the police and they wanted to enter and search. She queried whether they had a warrant and Detective Hanssen explained that they were entering under the Firearms Act and did not need a warrant. She then opened the front door. The delay was 30 seconds to a minute.[24]
[24] T 126.
Detective Hanssen made his way straight through to the rear of the house where he saw the accused in the kitchen/dining room area. He said:[25]
My immediate impression was Mr Vitor looked quite flustered. The kitchen tap was running and the impression-and there was, I recall, containers-some being like mineral water containers-upside down and throughout the sink and there was water splashed everywhere. So the impression I got was some intense activity had taken place there; for example, flushing drugs down the sink. That was the impression I made immediately upon seeing that.
[25] T 127 L 28-36.
Detective Hanssen was asked what opinion or suspicion he might have drawn from what he observed of the accused at the sink and the contents of the sink and he replied "that Mr Vitor had been flushing illicit drugs down the sink."[26] He was asked whether the contents of the sink assisted him in forming that suspicion and he answered:
Well, the suspicion I had was the drug fantasy and from my experience of 6 years in the Drug Squad, fantasy is commonly stored in, for example, the bottle in the sink and there is also some-there appear to be a tub which has a press seal lid, and in the bottom of that photo was a cap which I believe was probably from that bottle, but they are items consistent with how fantasy is stored.[27]
[26] T 130 L 21-22.
[27] T 130 L 25-32.
Detective Hanssen said that the observations which were relevant to the conclusions that he reached were the plastic water bottle with the lids, the plastic tubs, and the tap running.[28]
[28] T 133 L 34-8.
Detective Hanssen executed his General Search Warrant. He gave evidence that was:[29]
Based on what I saw in the sink, based on what I saw in relation to Mr Vitor and that accumulated-and based on my 6 years’ experience in the Drug Investigation Branch. And the multiple searches and investigations I have conducted over the years in relation to not just fantasy but illicit drugs in general.
[29] T 134 L 13-8.
He said:[30]
I saw the plastic containers and the glass in the sink with the water running and Mr Vitor’s demeanour which caused me to form a suspicion that illicit substances had been poured into the sink.
[30] T 134 L 22-5.
He said that in forming that his opinion his background knowledge of the accused played a part as "another piece of information available to me which supported my suspicions, in my opinion".[31]
[31] T 135 L 4-6.
Detective Hanssen said that the delay in gaining entry to the house had a bearing on his suspicion saying:[32]
Over the years I've conducted multiple entries, rapid entries on properties, in particular, drug dealers properties, and the situation exists that predominantly where occupants within the house, if there are drugs present on the property, will either pour, flush, rinse the drugs down the sink, pour, flush drugs down the toilet, too, in many occasions, as part of the briefing, we will actually be specific about nominating a person to turn the water meter off before approaching the house to limit the amount of disposal that can be done. So I've lost count of how many times I've entered a house, a delayed entry, and the suspicions have been warranted because that's exactly what the occupants been doing.
[32] T 135 L 11-24.

Detective Hanssen executed his General Search Warrant at 9:40 AM.[33] His suspicion in relation to firearms was still in existence. He said:[34]
…the search was still going to continue in relation to firearms but due to the suspicions I'd formed in relation to potential drug activity at the house, I reverted to or executed my General Search Warrant to continue the search for drugs in addition to firearms. So from 9:40 AM the search that continues from that point onwards was under the authority of my General Search Warrant.
[33] T 136 L 31-2.
[34] T 136 L 36-8 & T 137 L 1-5.
Senior Constable Warland was a member of the search team. He understood that the authority for the search was s 32 of the Firearms Act which he understood enabled members of the police force to break into and enter any address where they have reasonable cause to suspect that firearms or other items such as ammunition stuff may be present at the address or offences committed under that act. He attended at the briefing where the background foundation for the search was provided. He noted a suspicion that the accused had possession of handguns. He said that during the course of the morning the power or basis for the search changed. At 9:40 AM he was advised by Detective Hanssen that the authority was reverting to his General Search Warrant.[35] His understanding was that the search was under the authority of the General Search Warrant but that the authority of the Firearms Act was still standing.[36] He became aware that certain items were located namely a large quantity of cash, a bullet, a small amount of ammunition and a small amount of drugs.
[35] T 227 L 15-20.
[36] T 228 L 2-4.
Detective Hanssen, the search coordinator, directed him to search the perimeter of the property in the rear yard. With the assistance of photographs he described the search of the perimeter of the backyard. He located a handgun which was on the northern wall where there was a tarpaulin on top of the roof of the adjoining property which appears to be a shed. That was in the north-western corner of the backyard of 18 Barker Road. He had to stand on a plant box. He saw a blue tarp: which had a slight tear in it and what appeared to be a black object inside within that tear. He lifted the top of the tarp to peer inside and he saw the firearm. The tarpaulin showed signs of dirt and weather as if it had been exposed to the elements for some time, but the gun was not in the same condition as the tarp: and was clean.[37] He was able to access the gun by standing on the plant box. The only access he could see to the specific area where the gun was located was from 18 Barker Street. He was asked what authority he was relying on while searching the perimeter looking for firearms and answered: “Well it was still a General Search Warrant at the time but firearm powers were still in existence."[38]
[37] T 232 L 35-38 & T 233 L 1-4.
[38] T 233 L 25-6.
He was asked whether he turned his mind to the fact that the firearm was on the adjacent premises rather than 18 Barker Road prospect. He responded:
Not really, no, because the firearm was in control, it appeared to only be in control from 18 Barker Road. It didn't appear to be in control from the adjacent premises, so yeah, my thoughts were it was still in control of the address that I was searching.[39]
[39] T 234 L 25-32.
In cross-examination he agreed that once he saw the roof of the shed coming to the fence line and the blue tarpaulin he identified that as something he should look in because it was within easy reach.[40] He was aware that the roof belonged to the neighbour’s shed and was not part of 18 Barker Road. He said he looked into the tarp: and found the item because he could reach and it was in control of where he was standing on 18 Barker Road.[41] Defence counsel suggested that he didn't even turn his mind to the fact that he was in fact entering the neighbour’s property to search to which he responded "No, I didn't believe I was, no.”[42] He did not turn is mind to the fact that he was entering a neighbouring property.[43] He wasn't told to enter the neighbouring property to conduct any part of the search.[44]
[40] T 239 L 16-22.
[41] T 239 L 28-32.
[42] T 239 L33-6.
[43] T 240 L 1-5.
[44] T 240 L 6-9.
The accused gave evidence of a number of earlier searches of his property. He also gave evidence that at the time of the search on 5 May he was in the process of tidying up the house from the night before. Ms Lowe was assisting him. He had been tidying and cleaning up for about half an hour before the police came. Ms Lowe told him she thought there was someone at the door and the accused who did not hear anything, asked her to check. She requested him to turn the music down which he did using the phone. After turning the music off, he put the phone in his pocket.
The accused said that the first policeman whom he saw was Detective Hanssen who said "Mr Vitor, stop flushing shit, come up here against the wall, put your hands up against the wall".[45] At the time the tap was running in the sink because the accused had been collecting dishes from around the house. He said "I was basically just rinsing out the empty glasses and putting them in the dishwasher. That's what I was doing”. He denied having taken any container or substance which contained the drug fantasy or anything like that and flushed it down the sink.[46] He identified the items shown in a photograph of the sink as the container from the Nutribullet which he used every morning to make a health drink and the top of that container. There was also a plastic bottle which he said was "just a water bottle and water in it”[47] and the top of a Poweraid bottle. He said he had washed other bottles in the sink before the police arrived and after washing or rinsing them he put them in the bin under the sink. Those bottles were Powerade, Red Bull cans and beer bottles. The tap in the sink was running but only like a dribble not "full pelt".
[45] T 178 L 26-7.
[46] T 179 L 4-7.
[47] T 179 L 32-4.
Detective Hanssen searched the accused, asked him to turn his pockets inside out and he took the iPhone off him.[48]
[48] T 181 L 20-4.
The accused described the conversation that he had with Detective McManus out the front of the house. He said that Detective McManus never gave a formal caution to him. He said that Detective McManus was in possession of the Blackberry phone but he did not see how he had come into possession of the Blackberry.[49] He gave the following evidence about a conversation about the Blackberry: “He said to me "come on mate, give us the PIN to this phone"” to which the accused replied “I don't know the PIN, it's not my phone”.[50]
[49] T 185 L 11-3.
[50] T 185 L 18-27.
The accused continued:
Again, excuse my language, he said "Bull shit, we both know that's your phone and give me the PIN", and I said "No, it's not my phone, someone must've left it from the night before. It's not my phone, my phone is an iPhone, which I believe is in the house with one of the officers", and Danny said to me, he said "You know by law you have to provide us with the PIN for the phone?"[51]
[51] T 185 L 29-35.
The accused was asked whether Detective McManus said anything in particular about the law and he replied "He might have said some section or an act or something to make me believe that it was – yeah.”[52]
[52] T 185 L 37-8.
The evidence continued:[53]
[53] T 186 L 1-17
QWhen you say you might have, do you have any memory of something being said about either a section or an act of Parliament?
AThat's what I remember "section or an act of Parliament".
QAre you able to help us at all with the type of words that you recall being stated?
ALike under an act or section of an act, that I had to provide him with the PIN in for my actual phone that's in my name, that's registered to me.
QWhen he said that to you, did you believe it.
AYes.
QIn relation to the Blackberry that you are being asked about, was it your phone?
AThe Blackberry was not my phone.
QDid you know a PIN or a password to the Blackberry?
AAbsolutely not." (T186).
That conversation provides the basis for an application to exclude evidence under ground 1(a) of the application - the evidence obtained as a result of the search of the iPhone.
Counsel submitted that the means employed to extract the PIN from the defendant involved deception and improper conduct by Detective McManus.
In addition, counsel submitted that if Detective McManus’ stated belief about the suspicions he held concerning the defendant's criminal conduct were in fact genuinely held, then the defendant was a suspect for the commission of one or more indictable offences from the outset that day and before any questioning on any relevant matter occurred Detective McManus should have advised or informed the accused about the nature of the enquiry that he was conducting or alternatively he should have formally cautioned the accused and advised him of his right to silence.
The accused has submitted that as a result of the deceptive and improper conduct on the part of Detective McManus in asserting a legal requirement for the defendant to disclose the PIN of his telephone, and the failure to advise the defendant about the nature of the enquiry or to formally cautioned him, the evidence obtained as a result of the search of the telephone should be excluded because the evidence was either unlawfully obtained or obtained in circumstances which make it unfair to be admitted.
As to the burden of proof the accused has submitted that the burden of proof in respect of ground 1(a) is upon the prosecution to prove firstly that the disclosure by the accused of the PIN to the phone was voluntarily made. Then, if the finding of the court is that the disclosure was not voluntarily or was otherwise unfairly obtained, it is for the defendant to persuade the court to exercise its discretion and exclude the evidence of the contents of the phone.
I accept the submission of defence counsel that the conversation between the accused and Detective McManus out the front of the house was not just casual conversation but was part of a deliberate method employed by Detective McManus to obtain relevant and potentially valuable information.
There is dispute as to the Blackberry phone. Detective McManus gave evidence that the accused had it in his pocket. The evidence of the accused was that he did not know how Detective McManus came into possession of the Blackberry.[54]
[54] T 185 L 11-3.
I accept the defence submission that it is highly improbable that the defendant had the Blackberry in his pocket as Detective McManus claimed. The accused had already been searched by Detective Hanssen. I accept the evidence of the accused that he was searched by Detective Hanssen inside the house, that his iPhone, which had been in his pocket, was removed leaving nothing in his pockets when he was taken out the front. I accept that the Blackberry was not in his possession but was somewhere in the kitchen/dining area.
There is a conflict on a critical piece of evidence. The accused claimed that Detective McManus quoted a fictitious piece of legislation to the accused as the reason why he was compelled to disclose the PIN. Detective McManus denied that happened. Defence counsel submitted there was a short time between the conversation about the Blackberry and the conversation about the iPhone and the false assertion of a legal requirement to provide the PIN was still on the mind of the accused as he stated in his evidence on the topic.[55]
[55] T 190 L 16-21.
The evidence of Detective McManus is that he asked for the PIN and the accused just gave it to him.
Counsel submitted that the suggestion that a person who has been the subject of significant previous interaction with the police would volunteer a PIN to a phone simply at the request of police without any coercion or compulsion is implausible.
I do find it unusual that a person with the background of the accused would just provide the PIN upon request, but the evidence does not enable me to prefer the evidence of one witness from the other.
Counsel made the alternative submission that if the court finds that the evidence of Detective McManus was correct and the PIN was volunteered by the defendant without coercion, then the evidence should be excluded as Detective McManus did not provide an appropriate caution to the accused before engaging in this questioning of him.[56]
[56] Defendant’s Written submission at [29].
Section 74D of the Summary Offences Act 1953 (SA) provides that when a police officer suspects, or has reasonable grounds to suspect a person of having committed an indictable offence and proposes to interview the suspect, the police officer must ensure that an audiovisual recording is made of the conversation. There are alternatives but an audiovisual recording must be made if it is reasonably practicable to do so. In the present case I am satisfied that there was a video camera available to the police officers which could have been used to record any conversation between Detective McManus and the defendant.
The obligation to record interviews arises where an investigating officer "suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect..."
Counsel referred to R v Haydon (No. 4) [2005] SASC 18 where Martin J found that the suspicion exists if the investigating officer apprehends that the defendant might possibly have committed an indictable offence. Counsel submitted that the question for the court is "did McManus apprehend that the defendant might possibly have committed an indictable offence?" I accept his submission that the answer to that question must be: "yes".
Detective McManus had attended the property knowing that a search was to be conducted because information had been received that the defendant was in possession of a handgun or handguns. Counsel referred to the following evidence of Detective McManus:
·the defendant was a senior member of the Finks and had been committing serious drug trafficking offences over a considerable period;
·the defendant was on Home Detention Bail at the time for a serious drug trafficking matter;
·Detective McManus believed the accused was in possession of a handgun;
·police had consistent information over time that the defendant was in possession of guns;
·Detective McManus suspected the defendant had some involvement with counterfeit money;
·the accused was living in a property he could not afford;
·Detective McManus was told that Detective Hanssen thought the accused had flushed drugs down the sink;
·the defendant appeared nervous and fidgety;
·despite the denials of the accused, he was the owner of a Blackberry phone with an encrypted SIM; and
·possession of a Blackberry phone (by itself) meant that the defendant was a person who was probably using it for illegal purposes.
Counsel submitted that at the time of engaging in conversation with the accused, the state of mind of Detective McManus was such that he was under an obligation to record the interview. He failed to do so and as a result the provisions of s 74D come into play. Had Detective McManus recorded the interview there would be no dispute about the nature of the conversation and what was said about requiring the accused to state the PIN of his telephone. Counsel submitted this was one of the primary aims of the legislative provision.[57]
[57] Defendant’s Written submissions at [51].
Counsel submitted that the failure to record the interview means that the evidence is inadmissible pursuant to s 74D unless the interests of justice require its admission into evidence. I accept the defence submission that the prosecution have not established that the interests of justice require the admission of this evidence in the present circumstances.
I find that evidence obtained by reason of the use of the PIN should be excluded.
In addition I accept the submission that in addition to the statutory requirements the common law also requires that a caution should have been given.
In R v Dolan (1992) 58 SASR 501 King CJ said at 505:
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of in voluntariness or unfairness arising out of or omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systemic interview issuing and it typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge's discretion.
In R v Murphy (1996) 66 SASR 406 Doyle CJ said at 411-412:
Because the ultimate question is one of unfairness, in the sense of unfairness arising from the use of answers in evidence, one cannot be dogmatic in the statement of relevant principle. On the other hand, as the passages cited indicate, courts must establish reasonably clear principles or guidelines which can be applied in practice by police officers. The passages cited indicate that the commencement of the accusatory stage marks a point at which a caution must be given. The presence of reasonable grounds to suspect a person indicates that that stage has been reached, even if the police have decided not to charge the suspect: Van der meer (at 661) col. 1 D-F, per Mason CJ; R v Dolan (at 513) per King CJ. There may be, of course, other indications.
I am prepared to accept, as counsel argued, that these principles also should not be regarded as exhausting the requirement of fairness. Accordingly it was argued that in this case the police should at least have told Mr Murphy that his possible involvement was being investigated, even if a caution was not called for. I accept that there may be cases in which a person being questioned should be told that he or she is a suspect or possible suspect.
I accept the defence submission that in the circumstances that existed on 5 May 2016 Detective McManus was obliged either by common law, or by statute, or both, to inform the defendant that he was interviewing him in relation to suspected criminal activity; caution him about his right to silence; and record any conversation he undertook.[58]
[58] Defendant’s Written Submissions at [51].
I accept that the failure of Detective McManus to comply with these obligations resulted in significant unfairness and influenced the defendant in responding to and providing answers; in particular by providing the PIN to the phone.
The prosecution rely upon Abbott v Ramm (1994) unreported SCGRG 1064 of 1994 BC 9503114 where Debelle J said that a reasonable cause to search may exist even though there is no reasonable cause to arrest or suspect a particular person has committed a crime. I accept the submission of defence counsel that the decision does not represent the current law and that it should be confined to matters predating 1995. I accept the submission that the opinions expressed in Abbott v Ramm became redundant in the light of the subsequent cases and amendments to the legislation.
The search
Initially the police officers relied upon the authority of s 32 (3) of the Firearms Act which at the relevant time provided:
(3) A police officer may enter and search any premises in which the police officer suspects on reasonable grounds–
(a) there is a firearm, firearm part, silencer, prohibited firearm accessory, mechanism, fitting, ammunition or license liable to seizure under this section; or
(b) a firearm is kept contrary to the security requirements of this Act.
…
(3c) A police officer may, with such assistance as he or she considers appropriate, use such reasonable force as is necessary to–
(a) break into any premises, vehicle, vessel or aircraft in order to gain entry or conduct a search under this section; and
(b) if reasonably necessary for the purposes of conducting a search, break into or open anything in or on the premises, vehicle, vessel or aircraft.

I accept that Detective McManus and Detective Hanssen held a suspicion which satisfied the test described by the Court of Criminal Appeal in R v Nguyen.[59] I also find that the police officers had reasonable grounds to form the relevant suspicion, notwithstanding the fact that the identity of the informant was not disclosed to the court. They were aware of the identity of the informant and were satisfied as to the reliability of the information. I think there is merit in the submission of the Crown that the fact that a loaded handgun was located proximate to the backyard of the accused's house demonstrates that the information was reliable.[60]
[59] [2013] SASCFC 91 at [21] – [22].
[60] Prosecution’s Written Submissions at [10.3].
Detective Sergeant McManus formed the opinion that the information and source were reliable and credible. The information was consistent with numerous past intelligence reports and information as to the accused having firearms.[61]
[61] T 27-29 & T 28 L 18.
After the initial search at 9:40 AM Detective Sergeant Hanssen decided to continue his search utilising his General Search Warrant. Section 67(4) of the Summary Offences Act 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 assistance as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he 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 baby intended to be used for the purpose of committing an offence.
Notwithstanding the claim of privilege over the identity of the informant I find that Detective McManus and Detective Hanssen had a reasonable suspicion of grounds which enabled them to enter and search 18 Barker Road, Prospect with such assistance as they considered appropriate pursuant to s 32 of the Firearms Act.
I also find that the observations made by Detective Hanssen when he entered the premises gave him reasonable cause to suspect matters that activated his General Search Warrant. His suspicions may or may not have been correct but I am satisfied that Detective Hanssen did have reasonable cause to suspect the matters which caused him to activate his General Search Warrant.
Detective Hanssen may have been correct or incorrect and a more comprehensive enquiry may have resulted in a different conclusion, but I am satisfied that on the basis of what Detective Hanssen observed he did in fact hold a suspicion that illicit drugs were being flushed down the sink. His comment to the accused to “stop flushing shit” is consistent with that suspicion.
The matters that caused Detective Hanssen to form a suspicion that the applicant flushed illegal drugs down the kitchen sink were:
·there are been a delayed entry of 30 seconds to 1 minute between police knocking on the door and a woman responding. Then there was a further 30 seconds to 1 minute before the door had actually been opened.
·Upon gaining entry Detective Hanssen went immediately to the kitchen area and saw the accused standing at the corner of the kitchen island bench.
·Detective Hanssen thought he looked flustered, disheveled, quite unsettled and nervous.
·Detective Hanssen observed that the tap was running, water was splashed everywhere and there were plastic containers in the sink that were consistent with those commonly used for storage and consumption of fantasy.
·The evidence of Detective Hanssen was that it was extremely common in his experience that where entry to premises was delayed to find the occupants disposing of drugs.
·Detective Hanssen was aware that the accused was on Home Detention Bail for pending serious drug matters and he was familiar with the accused and the membership of the Finks outlaw motorcycle club.
Detective Hanssen gave evidence that the practical effect of executing his General Search Warrant was to search for more than just firearms and he agreed that he was "then searching under a General Search Warrant for a firearm and for drugs".[62] He stated that his suspicion about firearms did not cease when he executed the warrant so that the search was going to continue in relation to firearms.[63]
[62] T 153 L 25-32.
[63] T 136 L 33-8 & T 137 L 1-5.
I accept the argument that if Detective Sergeant Hanssen’s suspicion as to possession of illegal firearms was reasonably held that suspicion satisfied the preconditions for exercise of the General Search Warrant at all relevant times.[64] I accept the submission that the execution of the warrant was nonetheless valid if the legislative preconditions were met, namely reasonable cause to suspect an offence had recently been or was about to be committed or that there was anything that may afford evidence as to the commission of an offence.[65]
[64] Prosecution’s Written Submissions at [17.2].
[65] Prosecution’s Written Submissions at [17.2].
I accept the submission that if the General Search Warrant was, contrary to my findings, unlawfully exercised, s 32(3) of the Firearms Act continued in its effect. There is no legislative provision which imposes a requirement that the police must elect and act exclusively pursuant to one search power. I accept that there is no reason for the power to cease because another power has been invoked.[66]
[66] Prosecution’s Written Submissions at [17.2].
I reject the submission of the accused that the continued searching under the General Search Warrant was unlawful due to the absence of a reasonable suspicion sufficient to justify the use of the power.[67]
[67] Defendant’s Written Submissions at [82].
I find that the decision to activate the power under the General Search Warrant did not annul the power to enter and search under s 32 of the Firearms Act. The circumstances which justified the use of s 32 at the outset continued to exist.
I reject the submission that immediately prior to the search of 1 Doreen Street, Prospect, the police had been engaged in an unlawful search since at least 9:40 AM on the basis that the General Search Warrant was not lawfully exercised and the search pursuant to s 32 of the Firearms Act had been brought to an end.[68]
[68] Defendant’s Written Submissions at [86].
Constable Warland and gave evidence that he did not turn his mind to the fact that the firearm was on the adjacent premises because it "appeared to only be in control from 18 Barker Road."[69]
[69] T 234 L 28.
I accept the submission that looking around and beyond the perimeter of 18 Barker Road did not involve a search of the neighbouring property because mere sensory perception will not amount to a search which is equivalent to the tort of trespass. Wheare v Police [2008] SASC 13 at [48] per Gray J.[70]
[70] Prosecution’s Written Submissions at [22].
I accept the submission that the power in s 67(4) of the Summary Offences Act which empowers the searching of any house, building, premises or place, extends to any place readily accessible from 18 Barker Road.[71] I also accept that "premises" should not be interpreted in such a way as to confine a search to the precise surveyed real property boundary and that the power extended to Constable Warland standing in 18 Barker Road and lifting the tarp: on the shed of the next-door property.[72]
[71] Prosecution’s Written Submissions at [24].
[72] Prosecution’s Written Submissions at [25].
I find that the seizure of the gun from the neighbouring property at 1 Doreen Street, Prospect was not unlawful. Constable Warland and was searching the perimeter in accordance with the instruction of Detective Hanssen.
It would make a mockery of the law if Constable Warland was entitled to inspect the boundary but was not able to seize the gun which he was able to observe underneath the tarp on the roof of the neighbouring shed. I find that the power to "search any house, building, premises or place..." in section 67(4) extended to the seizure of the weapon.
I find that the entry and search of 18 Barker Road, Prospect and the entry and search of the roof of the shed at 1 Doreen Street, Prospect was not unlawful. Accordingly evidence of those searches should not be excluded.