R v Young - [2023] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v YOUNG
[2023] SADC 114
Reasons of his Honour Judge Durrant
28 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Crimestoppers Report of cannabis smell from industrial premises - electricity box opened and meter spinning quickly - use of infrared device detected heat source from building - whether reasonable suspicion to execute general search warrant - whether opening meter box a trespass - whether use of the infrared device a physical intrusion on the land - application to exclude evidence obtained in search of industrial premises - exercise of discretion to exclude evidence unlawfully obtained.
Held: Application to exclude evidence found during searches by police dismissed.
Controlled Substances Act 1984 (SA) ss 32, 33; Electricity Act 1996 (SA) ss 4, 7, 8; Summary Offences Act 1953 (SA) s 67; Legislation Interpretation Act 2021 (SA) s 17, referred to.
R v Ireland (1970) 126 CLR 321; R v Nguyen (2013) 117 SASR 432; Van Houten v The King [2023] SASCA 57; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; R v Willingham (No 2) [2012] SASCFC 104; R v McHugh [2022] SASCA 5; R v Swaffield [1998] HCA1; R v Kong (2013) 115 SASR 425; Bunning v Cross (1978) 141 CLR 54, considered.

R v YOUNG
[2023] SADC 114
Introduction

Nathan Jon Young has been charged with cultivating cannabis for sale and trafficking in a large commercial quantity of cannabis.[1]
[1] Information for arraignment on 17 June 2022; Controlled Substances Act 1984 (SA), s 32(1) and 33B(3).
He made a pre-trial application to exclude evidence derived from police searches of 7 George Street, Wingfield, on 8 and 9 September 2021.[2]
[2] Interlocutory Application filed 1 March 2023 (FDN10); Rule 39(1) Joint Criminal Rules.
On 1 August 2023, I dismissed that application.[3]
[3] Record of Outcome – Order (FDN36).
Detective Brevet Sergeant Stirling
DBS Stirling holds a general search warrant. She is an experienced detective who has frequently investigated hydroponic cannabis operations.[4]
[4] T11.4- T14.4.
The Crimestoppers Report
On 7 September 2021, a Crimestoppers Report dated 4 September 2021 was brought to her attention.[5]
[5] T14.24-36; T32.13- 14; Exhibit VDP3 Crimestoppers Report 4/9/2021.
Having read that report, she concluded:[6] the source of the report was anonymous; a physical address had been provided; a strong smell of cannabis had been observed from that address in an industrial area getting stronger over several weeks; the shed at the address did not have any signage on it; a male had attended at that address in a blue and green car; and that male had locked the gate and shed door and had never left the gate open.
[6] T16.1-17.5.
DBS Stirling suspected there might be cannabis at that address and on 7 September 2021, at 9pm attended with Detective Renko and Constables Edange, Scott and Gray.[7]
[7] Ibid; T16.1-6.
The first attendance at 7 George Street
The officers stayed for an hour and observed the address from the front roadway, a side road, and a back road.[8]
[8] T17.27-33.
DBS Stirling noted:[9] the address was a warehouse in an industrial area with no residences close by; there was no signage on the building or the fence but the premises next door had signage; two sensor lights on the exterior in the forecourt and a faint light from inside; no cars were parked in the forecourt and no activity appeared to be occurring; the fence across the front boundary contained an aperture and the electricity box door was positioned in that opening; the box had a broken latch and was not locked and; and there was no detectable smell of cannabis.
[9] T17.10-22; T18.23-25; T18.26-38; T20.1-2; T35.15- 18; T32.32- 33.3; Exhibit VDP1.
Her suspicion cannabis was being grown inside was further heightened.[10]
[10] T17.34-37; T17.38-18.3.
The Electricity Meter
Electricity meters measure daily electricity consumption. The meter at the address was owned by the successor to the Electricity Trust of South Australia.[11] The meter box in which it is contained was the property of the landowner.[12]
[11] Electricity Act 1996 (SA) ss 4, 7, 8; T5.33- 35. T7.13- 19.
[12] T7.8-12.
DBS Stirling knew hydroponic cannabis operators very frequently bypass or divert electricity from the meter.[13] Her experience was that meter boxes at warehouses are generally inside the property and it had been her practice, in respect of warehouses, to check the meter after execution of a warrant.[14]
[13] T19.11-19.
[14] T34.32- T35.1.
Standing on the verge outside the boundary, DBS Stirling opened the meter box door via the aperture. She saw the disc was ‘spinning very quickly’.[15] She had seen that before at residential properties where hydroponic cannabis had been growing and electricity was being used.[16]
[15] T19.2-5; T20.33-36; T34.26- 31.
[16] T19.29-34.
As apparently little electricity was being used by the two sensor lights and the light in the property, her suspicion cannabis was being grown in the building rose ‘even further’.[17] She did not suspect there had been a bypass of the meter.[18]
[17] T19.8-10; T19.30- 37; T34.17- 31.
[18] T36.7- 13.
DBS Stirling accepted she could have asked the Technical Regulator to come open the box.[19] She agreed changes in daily usage could be obtained from the network provider and would be a good indicator whether there had been a bypass.[20]
[19] Electricity Act 1996 (SA) ss 4, 7, 8; T35.19- 27.
[20] T36.3; T36.14- 18.
The second attendance at 7 George Street
At 8pm the next day, police returned and made the same observations.[21]
[21] T20.11-12 (She was working the afternoon shift); T20.20-23.
Standing on the verge, DBS Stirling again opened the electricity box.[22] She again saw the disc spinning very quickly. She was satisfied of reasonable cause to suspect drug offending and resolved to execute her general search warrant.[23]
[22] T20.24-36.
[23] Summary Offences Act (SA) s 67; T21.21-28.
Prior to execution of her warrant and entry onto the property, DBS Stirling stood roadside of the gates and pointed a handheld forward looking infra-red camera (FLIR) at the building.[24] While she had no training in its use and no general orders existed for its use, she knew how to use it. She switched the FLIR to red hot mode to measure differences in temperature between objects.[25]
[24] T21.29-22.2
[25] T39.8- 35.
As she looked through the lens, she saw at the top of the roller door and slightly down its sides a ‘heat source which was red’.[26] She observed noticeable difference between the top, the door itself, the windows, and the building.[27]
[26] T24.23-32.
[27] T25.25-32.
She considered ‘a heat source was being detected’. She said, ‘that just furthered [her] suspicion that there was a lot of heat being drawn from within the property’.[28] She ‘suspected that would be from the light, so the light shades, the ballast boxes, all the prescribed equipment that is used to successfully grow cannabis hydroponically...[and]…that was what the heat was coming from, all the electricity being used’.[29]
[28] T25.34-36.
[29] T26.1-6.
Execution of General Search Warrant
DBS Stirling executed her general search warrant and entered as she:[30]
…had formed a reasonable suspicion and…had reasonable cause to suspect that there were offences currently being committed at the property and…had reasonable cause to suspect that was cannabis offending, drug offending, …”.
…suspected that there was cultivation of cannabis and…suspected based on the large scale of the property that it would be an indictable offence….
[30] T28.17-21; T28.26-29; T28.37-35.
Police found 16 cannabis plants and 5.507 kg of dried cannabis.[31]
[31] T28.36-T29.1-4.
What is a FLIR and how does it work?
Professor Derek Abbott provided a written report and, having examined the FLIR used by DBS Stirling, supplemented that report with oral evidence.[32]
[32] Professor of Electrical and Electronic Engineering at the University of Adelaide; Exhibit VDD6 Expert Report for the Young Case.
The human eye sees 3.8-7.0 microns wavelengths of light.[33] The FLIR sees 7.5-13 microns infrared wavelengths of light.[34]
[33] Exhibit VDD6 Expert Report for the Young case (Professor Abbott) at [4].
[34] Ibid at [3].
Infrared light emits in proportion to temperature. The FLIR is a digital camera which picks up the heat signature of an object by passively detecting the radiation it naturally emits.[35] The FLIR does not emit a signal itself (unlike radar).[36]
[35] Ibid at [3].
[36] Ibid at [4].
The FLIR in this case did ‘not have physical contact with the building’.[37] That ‘should come as no surprise, as the human eye sees a building without physical contact’ and the ‘only difference’ between a FLIR and the human eye is the range of micron wavelengths detected. [38]
[37] Ibid at [7].
[38] Ibid.
The FLIR can operate in white, black, and red-hot modes; showing the same thing in a different colour.[39] The red-hot mode provides a relative, not absolute, measure of temperature.[40] The viewer sees red objects hotter than surrounding objects, not shown in red.[41] The FLIR ‘is sufficiently sensitive [to] detect temperature differences as little [as] 0.05 degrees centigrade’.[42] The FLIR had no numerical reading as to temperature, as more expensive models might.[43]
[39] T51.31-52.8.
[40] T60.10-T61.15
[41] Ibid.
[42] Exhibit VDD6, Supra, at [3].
[43] Ibid.
Several factors might affect the temperature of an object including radiation from the sun and that parts might cool at different rates, depending on composition.[44] The FLIR used may have picked up hot air coming off objects.[45]
[44] T55.3-26.
[45] T55.29-56.3.
The FLIR in this case could not record.[46] Rather, ‘[i]t receive[d] infrared radiation and…show[ed] the image on the screen’.[47]
[46] T56.4-18.
[47] T56.38-T57.2.
Submissions of Defence
Mr Christey, for the defendant, developed four principal submissions.
First, by opening the meter box police had conducted a search without lawful authority and had committed an unauthorised entry and trespass.
Second, the use of the FLIR was also a search without lawful authority.
Third, in any event, DBS Stirling did not have the requisite state of mind- a reasonable suspicion- to execute her warrant.
Fourth, the gross behaviour of police was such a severe infringement that curial approval should not be given to it and weighing the public interest in protecting individuals from unlawful and unfair treatment, the evidence from the search should be excluded.[48]
[48] R v Ireland (1970) 126 CLR 321 per Barwick CJ at [28] (McTiernan, Windeyer, Owen and Walsh JJ agreeing).
Mr Christey noted the Crimestoppers Report was anonymous and untested. It had a ‘fundamental problem’ as the caller had smelt cannabis, but police had not. Further, police had not observed the male or the blue or green car. Such inconsistencies, it was submitted, diminished the weight of the report.
As for the meter box, the defence said DBS Stirling only had experience at residences. As this was a commercial property, it was submitted, she should have reasonably concluded the electricity use observed, was nothing unusual.
Given that, and the weakness of the Crimestoppers evidence, it was ‘reckless behaviour’ on her part, it was submitted, to set aside other nearby premises as the potential source of the odour and concentrate just on 7 George Street. In such circumstances, it was ‘high end of reckless’ for DBS Stirling to exercise her warrant, as she could not have held a reasonable suspicion.
Alternatively, submitted Mr Christey, the opening of the meter box on each day was a low-level factual trespass and the cutting of corners by police.
As for the FLIR, Mr Christey said by taking a heat reading off the premises, the use of the FLIR was a physical intrusion on the land and to the property of the accused. It was, he submitted, therefore an unlawful search.
As I understood it, additionally, Mr Christey submitted the ‘always speaking’ principle of statutory interpretation required me to construe the statutory power granted to police to ‘enter’ and search, to include the technological advance represented by the FLIR.[49] Therefore, it was submitted, the use of the FLIR, was entry without statutory authorisation and unlawful.[50]
[49] Legislation Interpretation Act 2021 (SA) s 17.
[50] Summary Offences Act 1953 (SA) s 67(4)(a).
The defence submitted in combination those actions constituted a gross determination to exercise police power to enter come what may. The trespasses and the weak, inconsistent, and equivocal evidence were severe infringements on the rights of the accused and curial approval should not be given to that behaviour.
Submissions of Prosecution
Mr Sturm, for the prosecution, submitted the law applicable to use of the FLIR is settled. He submitted it is a technological device equivalent to a sniffer dog; an established method of non-intrusive detection.
In this case, submitted the prosecution, the heat detection by the FLIR made use of infrared light emitted into the public sphere and there had been no intrusion into the premises. Further, no other positive authority was required to use the FLIR.
The prosecution accepted while the opening of the electricity box may have been a trespass against its owner, it was not a vast overstep by police. It was not done in utilisation of a coercive power and was at the very lowest end of trespass.
When considering the discretion to exclude, it was submitted, regard should be had to the nature of the premises, that no one was there, and the ease of access allowed by the aperture. It was an opportunistic act and recording that as something not within the powers of police was sufficient censure in the circumstances.
The fact the source of the Crimestoppers report was untested, it was submitted, went to weight. What mattered was the report had recorded observations over weeks, had given an actual address, detail about smell and attendance by a male and security measures taken and a lack of signage.
The prosecution submitted the reasonableness of the suspicion of DBS Stirling must be assessed having regard to the whole of the evidence at the time the warrant was executed, and the threshold had clearly been met in this case.
Consideration
Seeing no reason not to accept the evidence of both Darren Winter and DBS Stirling, I accept their evidence in whole.
Professor Abbott was a suitably qualified expert in respect of the use and operation of the FLIR. I accept his expert evidence.
The principal defence submission was DBS Stirling did not have the requisite state of mind to execute her warrant.[51]
[51] R v Nguyen (2013) 117 SASR 432 per Kourakis CJ, Blue and Stanley JJ at [21]-[22].
Alternatively, the defence submitted the opening of the electricity box and use of the FLIR were both an unlawful search and trespass and, in exercise of my discretion, I should not give judicial approval to such behaviour.[52]
[52] R v Ireland (1970) 126 CLR 321 per Barwick CJ at [28].
I am satisfied the opening of the electricity box on each occasion was a trespass and that a lawful alternative to open the box was available to police.
Mr Christey described those trespasses as low level. Mr Sturm said they would be at the very lowest end of trespass. Both descriptions are apt.
While each trespass infringed the rights of the owner of the industrial property, no one appeared to be present.
Further, the configuration of the aperture was, in the experience of and to DBS Stirling, unusual. It had been designed and constructed to allow easy (albeit authorised) access to the meter without any need to go inside the property.
I consider the infringement was therefore an opportunistic one. The box was not locked, and its latch was broken. It was an act which contrasted her usual practice to check the meter box on commercial properties under warrant.[53]
[53] T34.32- T35.1.
In all the circumstances, the infringement on the rights of the owner of the meter box was minor to negligible.
I am satisfied use of the FLIR did not constitute a search.[54]
[54] Van Houten v The King [2023] SASCA 57 at [51].
The FLIR is a handheld digital camera to detect and display infrared light emitted by objects. It does not emit a signal. It passively detects radiation naturally emitted.[55] Its utility is it can see infrared light, which is invisible to humans.[56] It is equivalent to a sniffer dog- albeit one is sentient and the other mechanical.
[55] Exhibit VDD6 supra at [4].
[56] Ibid at [3].
I am satisfied the taking of a heat reading from the premises by DBS Stirling, standing outside the gate, was neither a physical intrusion on the land or an intrusion to the property of the accused.[57] The FLIR did ‘not have physical contact with the building’.[58] It operated as a human eye would and the device allowed DBS Stirling by sensory perception to see hotter objects in red.
[57] Van Houten v The King [2023] SASCA 57 at [51].
[58] Exhibit VDD6 supra at [7].
As for the submission the Legislation Interpretation Act2021 (SA), means the use of the FLIR was entry for the purpose s 67(1) of the Summary Offences Act 1953 (SA), I must ‘give effect to the ordinary meaning of […] text in the wider statutory context and with reference to the purpose of the provision’.[59]
[59] North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569, 581 at [11] (French CJ, Kiefel and Bell JJ).
The ‘always speaking’ principle enshrined in the Legislation Interpretation Act 2021 (SA) reflects that the core meaning of a statute is fixed at the date of enactment, but its context or application may change over time. The approach advocated by the defence exceeds what would be permissible by application of that principle. The core or essential meaning of ‘enter’ in section 67(4)(a) of the Summary Offences Act 1953 (SA) is clear in context; it is a physical intrusion.
The starting point as to whether DBS Stirling held a reasonable suspicion the property was being used to grow cannabis is R v Nguyen.[60] In making my assessment I have therefore put myself in the position of DBS Stirling and have asked myself if her suspicion was reasonably held.[61]
[60] R v Nguyen supra per Kourakis CJ, Blue and Stanley JJ at [21]-[22].
[61] R v Willingham (No 2) [2012] SASCFC 104, per Gray, Sulan and Stanley JJ [10].
DBS Stirling knew from the Crimestoppers Report: a physical address had been provided; a strong smell of cannabis had been observed from that address in an industrial area; the shed at the address did not have any signage on it; a male had attended at that address in a blue and green car; and the male had locked the gate and shed door and had never left the gate open.
She knew from her experience and observations at the property: the address was in an industrial area with no residences close by; there was no signage on the building or the fence but the premises next door had signage; two sensor lights were positioned on the exterior in the forecourt and a faint light was coming from inside; no cars were parked in the forecourt and no activity appeared to be occurring; there was no detectable smell of cannabis; the meter disc was ‘spinning very quickly’ like at residential properties where hydroponic cannabis had been growing and electricity was being used; the top of the roller door and just slightly down its sides showed a heat source; there was a noticeable difference in heat between the top of the roller door, the door itself, and the windows and other areas of the building; heat was being drawn from within the property; and light shades, ballast boxes and prescribed equipment used to grow cannabis hydroponically generated heat and used electricity.

I have considered that the Crimestoppers Report was anonymous and untested, and that police did not smell cannabis or see any cars or a male attending. I do not consider those matters significantly diminish the weight of the report.
The observations made by the anonymous caller had been detailed and specific and much of it had checked out. The address was real. It was a warehouse in an industrial area able to be readily observed through the gate and fence. The warehouse and fence did not have signage, while the premises next door did. There were no residences nearby. The gate was locked. A male was said to have attended at that address in a blue and green car and had locked the gate and shed door and had never been seen to leave the gate open. The observable activity consisted of a faint light from inside. No cars were parked in the forecourt. The electricity meter was spinning quickly. Finally, the FLIR had detected heat on the top of the roller door.
As for the fact DBS Stirling had not smelt cannabis from the street, the significance of the report was that the person had observed the address for several weeks and considered the smell was getting stronger and had further seen a male attend and take security measures while there.
Further, the defence submission DBS Stirling only had experience at residential properties is mistaken; her experience was not so limited.[62] Regardless, given her observations at residential properties, it would have been naively gullible, having regard to all the information and her experience, to have concluded the electricity use observed was nothing unusual.
[62] T13.1-29.
Finally, a suspicion contemplates multiple scenarios; ‘a suspicion, by its very nature, connotes something less than established facts, it necessarily requires consideration of what might or might not be the fact’.[63]
[63] R v Nguyen [2016] SASCFC 96 per Doyle J at [59].
I have considered the whole of the information known to DBS Stirling as detailed and at the time she executed her general search warrant.[64] In doing so, I have been neither overly incredulous nor naively gullible.
[64] R v McHugh [2022] SASCA 5 per Kourakis CJ at [6]-[7].
Putting myself in the shoes of DBS Stirling, I am satisfied her suspicion cannabis was being grown was reasonably held and objectively reasonable.[65]
[65] R v Willingham (No 2) [2012] SASCFC 104, [10].
Nonetheless, I have found the opening of the meter box on two occasions to have been a trespass. Given that I must, in the exercise of the discretion therefore enlivened to exclude the evidence found, weigh the public interest in the protection of the individual from unlawful and unfair treatment against the interests of the community to bring to justice people who commit serious crimes.[66]
[66] R v Ireland (1970) 126 CLR 321 per Barwick CJ at [28]; Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22; per Stephen and Aickin JJ at [22].
The following are relevant to the exercise of that discretion: [67]
·the nature of the offence charged;
·the probative value of the evidence, and its importance in the proceedings;
·whether the conduct was deliberate, or resulted from a mistake;
·whether the nature of the conduct affected the cogency of the evidence so obtained;
·the ease with which those responsible might have complied with the law in procuring the evidence in question;
·the legislative intention (if any) in relation to the law that is said to have been infringed; and,
·whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.
[67] R v Swaffield [1998] HCA1; (1998) 182 CLR 159 per Kirby J at [135]; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19; per Mason CJ, Deane and Dawson JJ at [38].
The two offences charged are serious. The cultivation charge attracts a maximum penalty of $50,000 or imprisonment for 15 years or both.[68] The trafficking in a large commercial quantity charge attracts a maximum penalty of $1,000,000 or imprisonment for life or both.[69] It is also well known the trafficking of illicit drugs is extremely harmful to individuals and the community and takes up significant resources of police to detect and prosecute.
[68] Information for arraignment on 17 June 2022; Controlled Substances Act 1984 (SA) s 33B(3).
[69] Ibid s 32(1).
The evidence obtained in the search is highly probative and will have great importance in these proceedings.
The submission the trespasses were a significant infringement of the rights of the accused is overstated. The rights infringed were of an unidentified owner of the meter box at premises which appeared empty and being used for industrial, not residential purposes. Also, the box and fence were designed to be accessed exactly as DBS Stirling did; albeit there was no implied right for police to open the box. Finally, the latch was broken, and the box was not otherwise locked.
This was an opportunistic and mistaken act by police who, presented with that configuration, stood outside the property and opened the box. It was unusual in the sense DBS Stirling had only encountered meter boxes inside industrial properties, and her practice was to utilise her search power to obtain access. There is no evidence her conduct was encouraged or tolerated by those in higher authority in the police or by those responsible for the institution of criminal proceedings. To the contrary, she said she would utilise the services of the Technical Regulator and usually would await execution of a warrant.
I do not consider, in all the circumstances, the actions of DBS Stirling in opening the meter box on two occasions from outside the property via the aperture designed for that very purpose, constituted a vast overstep by police. It was, as I have already found, a minor to negligible infringement.
I also do not consider the act of DBS Stirling in opening the box was a utilisation of her coercive power. Her evidence was that she determined to enter after the second observation of the box was made and did not execute her general search warrant until after the FLIR had been utilised.
I am satisfied there has been no deliberate attempt to undermine or circumvent the law. I am also satisfied the cogency of the evidence from the search is not vitiated by police conduct; it is probative of serious offending.[70]
[70] R v Kong (2013) 115 SASR 425 at [90].
I have weighed the public interest in protecting individuals from unlawful and unfair treatment against the interests of the community to bring to justice people who commit serious crimes.[71] Having done so, and for the reasons set out above, I decline to exercise my discretion to exclude the evidence from the search.
[71] R v Ireland (1970) 126 CLR 321 per Barwick CJ at [28]; Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22; per Stephen and Aickin JJ at [22].