(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice David)
11 April 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - EXECUTION
The appellant seeks permission to appeal against convictions for cultivating controlled plants for sale (Count 1) and trafficking in a large commercial quantity of a controlled drug (Count 2). The offending related to a hydroponic cannabis operation in a commercial premises leased by the appellant at 7 George Street, Wingfield.
A Crime Stoppers report regarding the Wingfield premises prompted police to attend and make observations of the premises on the evening of 7 September 2021. Police opened an electricity meter box at the front of the property and observed that the electricity meter disc was spinning quickly, indicating high electricity use at the premises. Police returned the following evening and made similar observations. Police also used an infra-red camera which similarly indicated a heat source in the premises. Police then executed a general search warrant and searched the premises.
On the voir dire, the appellant relevantly contended that by opening the electricity meter box, police committed a trespass, or entry and search without lawful authority. The appellant also contended that the search of the premises was unlawful because the police officer executing her general search warrant did not hold the reasonable suspicion required by s 67(4) of the Summary Offences Act 1953 (SA). The trial judge rejected the appellant’s challenges to the lawfulness of the police conduct and, proceeding by way of a trial ‘on the papers’, convicted the appellant of both offences.
The appellant contends that the trial judge erred in finding that the relevant police officer had a reasonable suspicion for the purposes of s 67(4) of the Summary Offences Act and in determining not to exercise his public policy discretion to exclude the evidence obtained from the search of the Wingfield premises by reason of the trespass associate with opening the meter box at the front of the premises.
Held per the Court, granting permission to appeal but dismissing the appeal:
1.The search of the Wingfield premises was lawful as the police officer had reasonable cause to suspect that the premises was being used to produce cannabis prior to executing her general search warrant; and
2.Despite the minor trespass committed by the relevant police officer in opening the electricity meter box, the trial judge did not err in determining not to exercise his public policy discretion to exclude the evidence obtained from the search of the Wingfield premises.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Young v The King [2024] SASCA 47
Case
[2024] SASCA 47
Decision Date
CaseChat Overview and Summary
This case involved an appeal by the applicant, Young, against a decision of the trial judge concerning the admission of evidence. The dispute centred on whether certain evidence, obtained potentially improperly or illegally, should have been excluded on public policy grounds. The matter was heard by Kourakis CJ, Doyle and David JJ.
The primary legal issue before the court was the application of section 138 of the Uniform Evidence Law, which governs the exclusion of improperly or illegally obtained evidence. This section requires a court to exclude such evidence unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that manner. The court was also required to consider the standard of appellate review applicable to a trial judge's exercise of this discretion.
The court's reasoning, as articulated by Doyle JA, focused on whether the trial judge's decision to admit the evidence was demonstrably wrong. The court noted that the appellant had not established that the trial judge erred in their exercise of discretion to decline exclusion on public policy grounds, nor that the decision was affected by the type of error required by *House v The King*. David JA agreed with the proposed orders and indicated a preliminary view that the standard of appellate review for such discretions should be one of correctness, though he preferred not to express a concluded view without full argument.
Ultimately, the appeal was dismissed, with permission to appeal granted only to the extent necessary for that outcome.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The issue has arisen for consideration in several cases involving s 138 of the Uniform Evidence Law, which is a modified version of the common law public policy discretion:138 Exclusion of improperly or illegally obtained evidence(1) Evidence that was obtained—(a) improperly or in contravention of an Australian law, or(b) in consequence of an impropriety or of a contravention of an Australian law,is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.(2) …(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—(a) the probative value of the evidence, and(b) the importance of the evidence in the proceeding, and(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and(d) the gravity of the impropriety or contravention, and(e) whether the impropriety or contravention was deliberate or reckless, and(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. The s 138 discretion differs from the common law discretion in several respects,[74] including that it extends to illegality or impropriety by persons other than police or law enforcement agencies, and that it renders evidence obtained illegally or improperly inadmissible unless the Court is persuaded to exercise its discretion in favour of admission of the evidence. The s 138 discretion falls to be exercised by reference to the considerations listed in s 138(3)(a)-(h), which largely reflect the matters relevant to the exercise of the common law discretion.[74] Kadir v The Queen (2020) 267 CLR 109 at [11]-[15] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). In Kadir v The Queen,[75] the High Court addressed the operation of s 138 of the Evidence Act 1995 (NSW) in the context of derivative evidence. The defendant appellants in that case, K and G, were charged with serious acts of animal cruelty. The charges related to the alleged use of rabbits as live bait in training racing greyhounds at K’s property. Following an anonymous complaint of animal cruelty, Animals Australia, an animal welfare company, engaged a documentary photographer (L) to obtain surveillance evidence. L unlawfully entered onto K’s land on 11 occasions to covertly obtain seven video recordings, in contravention of s 8(1) of the Surveillance Devices Act 2007 (NSW) (“the surveillance evidence”). The surveillance evidence supported the allegations of serious animal cruelty. Animals Australia supplied the RSPCA with copies of the surveillance evidence. On the basis of this evidence, the RSPCA obtained a search warrant which, when executed on K’s land, produced further evidence of serious animal cruelty (“the search warrant evidence”). L returned to K’s property and engaged in conversations with K in which K allegedly made certain admissions (“the admissions”).[75] Kadir v The Queen (2020) 267 CLR 109.
Decision
Reasons for decision
Put differently, the appellant has not established that the trial judge’s decision to decline to exclude the evidence on public policy grounds was incorrect, let alone affected by error of the type required by House v The King.Conclusion For the reasons set out, I would grant permission to appeal to the extent it is necessary, but dismiss the appeal. DAVID JA: I agree with the orders proposed by Doyle JA. As to the applicable standard of appellate review in relation to the common law public policy discretion to admit or reject evidence obtained by unlawful or improper conduct, my preliminary view is that it falls to be reviewed on appeal by reference to the standard of correctness. However, I would prefer to not express a concluded view on this issue without the benefit of full argument. I otherwise agree with the reasons of Doyle JA.