Young v The King

[2024] SASCA 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

YOUNG v THE KING

[2024] SASCA 47

Judgment of the Court of Appeal  

(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.

Controlled Substances Act 1984 (SA) ss 32(1), 33B(3), 52(6), 52(9); Evidence Act 1995 (NSW) s 34P, 138; Surveillance Devices Act 2007 (NSW) s 8(1); Summary Offences Act 1953 (SA) s 67, referred to.
Adelaide Brighton Cement Limited v Hallett Concrete Pty Ltd [2023] SASCA 101; Bain v Police (2011) 112 SASR 10; Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; Coco v The Queen (1994) 179 CLR 427; DPP v Moore (2003) 6 VR 430; DPP v Riley (2007) 16 VR 519; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Em v The Queen (2007) 232 CLR 67; Entick v Carrington (1765) 95 ER 807; French v Scarman (1979) 20 SASR 333; George v Rockett (1990) 170 CLR 104; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Halliday v Nevill (1984) 155 CLR 1; House v The King (1936) 55 CLR 499; Hussien v Chong Fook Kam [1970] AC 942; IMM v The Queen (2016) 257 CLR 300; Kadir v The Queen (2020) 267 CLR 109; Mann v R [2023] NSWCCA 256; McHugh v The Queen [2022] SASCA 5; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Nicholas v The Queen (1998) 193 CLR 173; Norbis v Norbis (1986) 161 CLR 513; 60 ALJR 335; Police v Hall (2006) 95 SASR 482; Pollard v The Queen (1992) 176 CLR 177; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223; Ridgeway v The Queen (1995) 184 CLR 19; R v Bauer (2018) 92 ALJR 846; R v Davidson (1991) 54 SASR 580; R v Fleming (2017) 129 SASR 27; R v Golja [2017] SASCFC 61; R v Grech [2017] NSWCCA 288 [2017] NSWCCA 288; R v Ireland (1970) 126 CLR 321; R v Lobban (2000) 77 SASR 24; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2016] SASCFC 96; R v Riley [2020] NSWCCA 283; R v Rockford (2015) 122 SASR 391; R v Rogers (2011) 109 SASR 307; R v Swaffield (1998) 192 CLR 159; R v Young [2023] SADC 114; R v Young (No 2) [2023] SADC 116; Semayne’s case (1604) 77 ER 194; Sindoni v The Queen [2021] SASCA 138; Smethurst v Australian Federal Police (2020) 272 CLR 177; State of Victoria v Brazel (2008) 19 VR 553; Van der Meer v The Queen (1988) 62 ALJR 656; Van Houten v The King [ 2023] SASCA 57; Victoria Park Racing and Recreation Ground Co Ltd v Taylor (1937) 58 CLR 479; Warren v Coombes (1979) 142 CLR 531; Wheare v Police (SA) [2008] SASC 13; (2008) 180 A Crim R 396; Wong Sun v United States (1963) 371 US 471, considered.

YOUNG v THE KING
[2024] SASCA 47

Court of Appeal – Criminal:    Kourakis CJ, Doyle and David JJA

1. KOURAKIS CJ:     I agree with the reasons of Doyle JA, and the orders he has proposed.

2. DOYLE JA:     The appellant was convicted of the offences of cultivating controlled plants for sale (Count 1)[1] and trafficking in a large commercial quantity of a controlled drug (Count 2).[2]  The offending related to a hydroponic cannabis operation in a commercial premises leased by the applicant at 7 George Street, Wingfield.

   [1]     Controlled Substances Act 1984 (SA), s 33B(3).

   [2]     Controlled Substances Act, s 32(1).

3. On the voir dire, the appellant challenged the admissibility of the evidence obtained through a search of the Wingfield premises.  In particular, the appellant contended:

   ·that by opening the electricity meter box at the front of the premises, police committed a trespass, or an entry and search without lawful authority;

   ·that by using an infra-red camera to make observations of the premises, police committed a further trespass, or entry and search without lawful authority; and

   ·that the search of the Wingfield premises was unlawful because the police officer executing the general search warrant did not hold the reasonable suspicion required by s 67(4) of the Summary Offences Act 1953 (SA).

4. While accepting that opening the meter box involved a trespass, the trial judge declined to exercise his discretion to exclude the evidence obtained from the search of the Wingfield premises on the basis of this “minor” infringement.  His Honour otherwise rejected the appellant’s challenges to the lawfulness of the police actions.

5. The matter then proceeded by way of a trial ‘on the papers’, with the appellant convicted of both offences.

6. The appellant initially sought permission to appeal on grounds which challenged the trial judge’s decisions that the use of an infra-red camera did not involve a trespass or search (Grounds 1-3), that the relevant police officer held the requisite reasonable suspicion to justify execution of the general search warrant (Ground 4), and not to exercise his discretion to exclude the evidence obtained through opening the meter box (Ground 5).  The appellant subsequently abandoned Grounds 1-3.

7. For the reasons which follow, I would grant permission to appeal to the extent it is necessary, but dismiss the appeal.

   The voir dire evidence

8. Detective Brevet Sergeant Hannah Stirling gave evidence on the voir dire.  Although cross-examined on some issues, her evidence was not ultimately challenged.

9. DBS Stirling explained that, on 4 September 2021, police received an anonymous Crime Stoppers report regarding 7 George Street, Wingfield in the following terms:

   Caller states there is a very strong cannabis smell in George Street Wingfield.  This street is industrial only and not a residential area.  Caller has noticed the cannabis smell has been getting stronger over the last few weeks.  Caller believes it is coming from a shed at 7 George Street.  The shed does not have any business names.  A male will attend in a blue/green car.  He drives in and locks the gates.  The shed door is never left open. … A white Mitsubishi utility will frequent the shed also.  Nil registration numbers could be provided, however, caller will call back if able to obtain.

10. Having read this report, DBS Stirling “started to form a suspicion” that there was cannabis at the Wingfield premises.  In particular, she noted that there was a report of a strong smell of cannabis; that it was coming from an industrial rather than residential area, and hence an area where there would be less activity; that the report related to a particular address; that there was no signage, hence raising a question about what the property was being used for; and that there had been a man attending in a blue/green car and locking the gates and closing the shed, raising a query about why such high security was being maintained on the property.

11. On 7 September 2021, at about 9.00 pm, DBS Stirling attended the Wingfield premises with four other police officers, and made observations from the front, side and back of the property for about an hour.  She noticed that the address was a shed or warehouse in an industrial area with no residences close by; that there was no signage on the building or the fence, whereas the adjacent premises did have signage; that there were two sensor lights on the exterior of the building and a faint light coming from inside the building; that there were no cars parked in the forecourt area; and that there did not seem to be any activity occurring at the premises.  On the other hand, she was not able to detect any smell of cannabis.

12. DBS Stirling noticed that the fence across the front boundary of the premises contained an opening where the electricity meter box was positioned and hence accessible from the street.  The box had a broken latch and was not locked; it was just pushed closed.  Whilst standing on the footpath or verge area out the front of the premises, DBS Stirling opened the box and observed that the meter disc was spinning very quickly.  She had previously observed many electricity meters in the course of her work.  In her experience with hydroponic cannabis crops, the meter was often bypassed, or the electricity diverted, so as to conceal the power being drawn to the property.  However, on this occasion, she noticed that the meter disc was spinning “very quickly for [the] little electricity that apparently was being used at the property”.  Given that there appeared only to be two sensor lights on the exterior of the property and a faint light inside the shed, she “couldn’t see why there would be so much electricity being used”. 

13. DBS Stirling said that the observations she made that evening raised, or enhanced, her suspicion that there was cannabis growing at the property.  However, she did not at that point use the general search warrant that she held.

14. At about 8.00 pm the following evening, 8 September 2021, DBS Stirling returned to the Wingfield premises with other police officers.  She made similar observations; “nothing had changed”.  This included checking the electricity meter box, which was “still spinning very quickly”.

15. According to DBS Stirling, she was by this point “satisfied that [she] had reasonable cause to suspect that there was drug offending going on at that property” and resolved to execute her general search warrant.

16. However, before executing her warrant and entering the premises, DBS Stirling utilised the handheld infra-red camera, known by its brand name ‘FLIR’ (forward looking infra-red camera), that she had brought with her on this occasion.  Whilst she had no training in its use, and no general orders existed for its use, she understood that it was an infra-red camera that detected heat sources and she knew how to use it.  She understood that police had been using these devices for about ten years.  She switched the FLIR to the “red-hot” setting or mode to enable her to observe differences in temperatures between objects.  As she looked through the lens, she saw “a heat source which was red” at the top of the roller door and slightly down its sides.  She observed a noticeable difference in heat between the top of the door, the door itself, the windows and the building. 

17. DBS Stirling said that her observations using the FLIR “just furthered [her] suspicion that there was a lot of heat being drawn from within that property”.  She suspected that she was observing heat that was being generated and rising to the top of the warehouse or shed.  Because it was in the evening, and she did not see or hear any other sign of activity, she suspected the heat related to a hydroponic cannabis operation.  She “suspected [the heat] 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”. 

18. Whilst the observations she made using the FLIR furthered her suspicion, she considered that she already had a reasonable cause to suspect, and would have entered the premises regardless.

19. Prior to using the FLIR, DBS Stirling had made a phone call to obtain authorisation to force entry.  Then, having made the observations she did with the FLIR, she executed her general search warrant.  On her evidence:

    So I had formed a reasonable suspicion and I had reasonable cause to suspect that there was offences currently being committed at the property and I had reasonable cause to suspect that that was cannabis offending, drug offending, and so I gained entry to execute my powers under my warrant to search the property.

    …  I suspected that there was the cultivation of cannabis and I suspected based on the large size of the property that it would be an indictable offence …

    … I suspected I would find cannabis plants, dried cannabis, prescribed equipment and I suspected that there would be offences in relation to the diversion or the obstruction of the power, the electricity as well.

20. DBS Stirling explained that they broke open the lock to the front gate and entered the premises.  Upon searching the premises, they found 16 cannabis plants growing hydroponically with lights, electrical transformers, a water supply, extractors, fans, ducting and filters.  They also located 5.5kg of dried female flowering cannabis.

21. DBS Stirling’s evidence was that she had been a police officer since 2012.  She had experience in minor level drug investigations, including hydroponic cannabis operations.  In recent years she had been dealing with hydroponic cannabis operations frequently, at the rate of about one per week and with a total of in excess of one hundred, albeit mostly in residential rather than industrial premises.  In particular, she acknowledged that her view that the meter disc was spinning quickly (given the limited amount of power apparently being used) was based primarily on her experience and observations of electricity meter boxes in residential properties.  She understood that it was possible for police to make enquiries of the Office of the Technical Regulator about the electricity being used by a premises, allowing them to find out the quantity of power being used and any changes in the day-to-day usage.  The latter would sometimes assist in revealing whether electricity was being diverted.

22. DBS Stirling had had a general search warrant since 1 July 2021, and had commonly used it in her day-to-day policing work.  She was aware of the need for a reasonable suspicion before using it to enter or search a premises; that is, a reasonable suspicion that an offence had been or was about to be committed, that there were items which would constitute an offence at the property, or that there was evidence within the property of the commission of an offence.

23. DBS Stirling also gave evidence that it was not unusual for police to receive and act on information received through Crime Stoppers.  This included executing general search warrants based on such information.

24. During cross-examination DBS Stirling acknowledged that she did not investigate any of the other premises in the street or area.  She did make some observations of the adjacent premises at 9 George Street, and understood from one of her colleagues that he had checked the electricity meter box of that property (and noted that its meter disc was not spinning quickly).  One of her colleagues had done some checks on the property at 7 George Street, but these did not reveal anything of relevance.

25. Two further witnesses also gave evidence on the voir dire.

26. Darren Winter is an electrician, working as the enforcement officer for the Office of the Technical Regulator.  His evidence was that an electricity meter measures the daily consumption of electricity at a property.  He explained that the meter box and panel were the property of the landowner, but that the electricity meter itself was owned by SA Power Networks, the successor to the Electricity Trust of South Australia.

27. Mr Winter said that he attended the premises at 7 George Street, Wingfield on 8 September 2021, shortly after the police attended.  He observed the meter box to be a three-phase electricity meter, with two of the phases having been removed from the meter terminals and junctioned together, bypassing the meter.  It would seem that the observation that the meter had been bypassed was only made after removing a panel from the meter to reveal the wiring.  

28. Professor Darren Abbott is an electrical and electronic engineer, called by the defence to give evidence as to the workings of the FLIR device.  He provided a report which was supplemented with oral evidence. 

29. Pr Abbott explained that infrared light is emitted in proportion to temperature, and that the FLIR is a type of digital camera that is able to detect, or see, different wavelengths of light compared to the human eye.  In particular, the FLIR is able to identify the heat signature of an object by passively detecting the heat it naturally emits.  Like the human eye, it sees a building without any physical contact with that building, the only difference between the FLIR and the human eye being the range of wavelengths detected.  Unlike a radar, the FLIR does not emit a signal.

30. The FLIR was able to operate in white, black and red-hot modes, showing the same thing but in different colours.  The red-hot mode provides a relative, not absolute, measure of temperature.  The viewer sees objects in red which are hotter than those surrounding objects which are not in red.  The FLIR is sufficiently sensitive to detect temperature differences of as little as 0.05 degrees centigrade.  But it does not provide any numerical reading of temperature, in a way that more expensive models might do. 

31. Pr Abbott explained that several factors might affect the temperature of an object, including radiation from the sun, and the fact that objects might cool at different rates depending upon their composition.  The FLIR may also pick up hot air coming off objects. 

32. The FLIR used in the present case could not record the observations made.  Rather, it received infra-red radiation, and simply showed the image on the screen.

    Legal principles

1. The appellant’s contentions on the voir dire required consideration of the general principles governing the law of trespass, as well as the power under s 67 of the Summary Offences Act 1953 (SA) to enter and search premises pursuant to a general search warrant.

2. A convenient starting point is that a police officer may not enter, or otherwise interfere with, private property for the purpose of investigating criminal activity without lawful authority. This starting point reflects the common law’s ancient and fundamental concern to protect a person’s property from invasion – particularly where it is that person’s home, or ‘castle and fortress’.[3]

   [3]     Semayne’s case (1604) 77 ER 194 at 195 (Lord Coke); Entick v Carrington (1765) 95 ER 807 at 817 (Lord Camden); Halliday v Nevill (1984) 155 CLR 1 at 11-12 (Brennan J); Smethurst v Australian Federal Police (2020) 272 CLR 177 at [22] (Kiefel CJ, Bell and Keane JJ), [124]-[126] (Gageler J); Coco v The Queen (1994) 179 CLR 427 at 435-437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

3. However, this general protection of a person’s property from invasion is abrogated by s 67 of the Summary Offences Act. Under that section, a police officer holding a general warrant is empowered to enter, break open and search premises and receptacles in certain circumstances. In particular, s 67(4) provides:

   67—General search warrants

   (4) The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:

   (a)     the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—

   (i) an offence has been recently committed, or is about to be committed; or

   (ii)     there are stolen goods; or

   (iii) there is anything that may afford evidence as to the commission of an offence; or

   (iv) there is anything that may be intended to be used for the purpose of committing an offence;

   (b)     the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—

   (i)      there are stolen goods; or

   (ii) there is anything that may afford evidence as to the commission of an offence; or

   (iii) there is anything that may be intended to be used for the purpose of committing an offence;

   (c)     the officer may seize any such goods or things to be dealt with according to law.

4. As elaborated upon below, there is no dispute that DBS Stirling’s conduct in opening the electricity meter box at 7 George Street, Wingfield involved a trespass.  On the voir dire, an issue in dispute was the appellant’s additional contention that the use of an infra-red camera involved a trespass upon, or an unauthorised entry or search of, those premises.  However, that contention is no longer pressed.

5. This concession in relation to the infra-red camera was appropriate. It is generally accepted that an act of sensory perception, including by the use of sight or smell, does not involve any physical intrusion that might constitute a trespass, or an entry or search for the purposes of s 67 of the Summary Offences Act.  As Olsson J (Prior and Williams JJ agreeing) held in Questions of Law Reserved (No 3 of 1998):[4]

   According to its natural connotation the word “search” implies some physical intrusion into what is searched, for the purpose of examining what is in it.  That word is not apt to describe the mere act of detection of an odour generated by the content of the item searched, which is released into the atmosphere surrounding it without any positive acts of a third person to effect that release … it seems to me that the Crown is on sound ground when it argues that a sensory perception of any type simply cannot constitute an act of searching, because it is a passive act which cannot possibly constitute a trespass.

   [4]     Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223 at 226 (Olsson J, Prior and Williams JJ agreeing).

6. This statement of principle was recently applied by this Court in Van Houten v The King, in the context of police using a sniffer dog in drug detection activities:[5]

   General drug detection, as relevantly defined, permits a police officer to walk or otherwise place a drug detection dog in the vicinity of a person or property for the purpose of determining whether the dog detects the presence of a controlled drug but it does not include other conduct by a person that would constitute a search. By opening the driver’s side door and other doors of the vehicle and allowing PD Taco to partially enter the cabin area of the vehicle, Officer Parish engaged in a search of the vehicle.

   The word ‘search’ has been held to require some physical intrusion or trespass into what is searched for the purpose of examining it. Mere sensory perception of something, for example by smell or sight does not amount to a search at law: Questions of Law Reserved (No 3 of 1998).[6] Thus, had Officer Parish not opened the doors of the appellant’s vehicle and permitted PD Taco to enter the cabin, but placed the dog outside the vehicle and relied upon the dog’s sense of smell, there would have been no search.[7] Similarly, had Officer Parish looked through the window of the appellant’s vehicle and seen the controlled drugs, this action, being no more than the use of the sensory perception of sight, would not constitute a search: Wheare v Police (SA).[8]

   [5]     Van Houten v The King [2023] SASCA 57 at [50]-[51].

   [6]     Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223 at 224 (Prior J) and 226 (Olsson J).

   [7]     Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223 at 224 (Prior J).

   [8]     Wheare v Police (SA) [2008] SASC 13; (2008) 180 A Crim R 396 at [48] (Gray J).

7. This is consistent with the approach taken to civil torts such as trespass and nuisance.  For example, in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, it was held that making observations of activities on a neighbouring property (even if made from an observation tower and assisted by binoculars) did not involve any unlawful interference with that neighbour’s property rights.[9]

   [9]     Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 494 (Latham CJ), 506-507 (Dixon J).

8. Of course, DBS Stirling did ultimately rely upon her general search warrant to break the lock to the gate and then enter and search the Wingfield premises. Under s 67(4) of the Summary Offences Act, this required that she have “reasonable cause to suspect” one or more of the matters in s 67(4)(a)(i) to (iv) which, in the context of the present case, effectively required that DBS Stirling have reasonable cause to suspect that the Wingfield premises were being used to grow cannabis.

9. Further, it is well settled that this required both that DBS Stirling genuinely or subjectively held this suspicion, and that the suspicion was objectively reasonable.

10. In addressing the existence of reasonable grounds for a suspicion in executing a search warrant in George v Rockett, the High Court observed:[10]

    Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam,[11] “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees,[12] … Kitto J said:[13]

    suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

    [10]   George v Rockett (1990) 170 CLR 104 at 115-116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

    [11] [1970] AC 942 at 948.

    [12] (1966) 115 CLR 266.

    [13]   Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at p 303.

11. In R v Nguyen, the Full Court of this Court said the following in relation to the existence of a “reasonable suspicion” (for the purposes of a search under s 52(6) or (9) of the Controlled Substances Act 1984 (SA)):[14]

    A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.[15]

    Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise.[16] It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.

    [14]   R v Nguyen (2013) 117 SASR 432 at [21]-[22] (Kourakis CJ, Blue and Stanley JJ), applied subsequently in several cases including R v Nguyen [2016] SASCFC 96 at [25] (Doyle J, Vanstone and Bampton JJ agreeing); R v Golja [2017] SASCFC 61 at [26] (Stanley J, Kourakis CJ and Parker J agreeing).

    [15]   Bain v Police (2011) 112 SASR 10 at [28]-[29]; R v Rogers (2011) 109 SASR 307 at [22].

    [16]   R v Davidson (1991) 54 SASR 580 at 584.

12. Recently, in McHugh v The Queen, Lovell JA said:[17]

    A suspicion that something exists is more than mere idle wondering whether it exists or not, but I accept that there must be a rational connection between the supporting material and the suspicion.  Whether a reasonable suspicion attaches to the certain conduct or circumstances, is a factual question and the use of the expression, ‘reasonable cause’, imports an element of objectivity into that assessment.  The test of reasonableness is to be judged by the court putting itself in the position of the officer … with the knowledge of the officer and asking whether in the circumstances the suspicion was reasonably held.  It must be genuinely held.

    [17]   McHugh v The Queen [2022] SASCA 5 at [15] (Lovell JA, Doyle JA agreeing).

13. The reasonable suspicion must be held at the time of the exercise of power under s 67, being the time at which the general search warrant is executed and the premises are entered and searched. This Court held as much in McHugh v The Queen.[18]

    [18]   McHugh v The Queen [2022] SASCA 5 at [6]-[7] (Kourakis CJ), [14], [16] (Lovell JA), [17] (Doyle JA).

14. The appellant in the present case submitted that the existence of the requisite suspicion should be assessed at the (potentially earlier) point in time at which the police officer resolves to execute the warrant, rather than when the officer ultimately executes that warrant and then acts on it by entering and searching the relevant premises. Quite apart from the existence of authority to the contrary, there does not seem to be any textual or other basis for this approach in the terms of s 67(4). To the contrary, the text of s 67(4) links the existence of the reasonable suspicion to the police officer’s conduct in entering, breaking open and searching the relevant premises or receptacle. It is appropriate that I follow McHugh v The Queen.

    The trial judge’s reasons

15. The trial judge accepted the evidence of DBS Stirling, Mr Winter and Pr Abbott.[19]

    [19]   R v Young [2023] SADC 114 at [48]-[49].

16. The trial judge then addressed DBS Stirling’s suspicion that the Wingfield premises were being used to grow cannabis at the time she executed her general warrant.  There was no dispute that DBS Stirling genuinely or subjectively held the relevant suspicion. The issue was the reasonableness of this suspicion. 

17. After referring to the approach required by R v Nguyen,[20] the trial judge summarised the matters that DBS Stirling knew from both the Crime Stoppers report dated 4 September 2021 and from her attendances at the premises on 7 and 8 September 2021:[21]

    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.

    [20]   R v Nguyen (2013) 117 SASR 432 at [21]-[22] (Kourakis CJ, Blue and Stanley JJ).

    [21]   R v Young [2023] SADC 114 at [64]-[65].

18. The trial judge acknowledged that the Crime Stoppers report was anonymous and untested, and that police did not smell cannabis or see any cars or people attending the premises.  But he did not consider that these matters significantly diminished the weight of the report.[22]  His Honour explained:[23]

    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. 

    [22]   R v Young [2023] SADC 114 at [66].

    [23]   R v Young [2023] SADC 114 at [67]-[68].

19. The trial judge also acknowledged that DBS Stirling’s experience with hydroponic cannabis operations had been primarily with residential properties.  However, he noted that her experience did extend beyond this, and in any event provided a proper basis for her to conclude that the electricity use was unusual.[24]

    [24]   R v Young [2023] SADC 114 at [69].

20. The trial judge emphasised that a suspicion connotes something less than established facts, and necessarily requires consideration of what might or might not be the fact.[25]  Having considered the whole of the information known to DBS Stirling at the time she executed her general search warrant, the judge was satisfied that her suspicion that cannabis was being grown in the shed at the Wingfield premises was “reasonably held and objectively reasonable”.[26]  It followed that there was a proper basis for DBS Stirling to execute her general search warrant, and that the entry and search of the Wingfield premises was lawful.

    [25]   R v Young [2023] SADC 114 at [70].

    [26]   R v Young [2023] SADC 114 at [71]-[72].

21. In addition to addressing this challenge to the reasonableness of DBS Stirling’s suspicion, the trial judge also addressed the appellant’s challenges to the lawfulness of DBS Stirling’s conduct in using the infra-red camera and in opening the electricity meter box to obtain information about the Wingfield premises.  It would seem that the appellant’s argument was that, even if DBS Stirling had the requisite suspicion to justify the execution of her search warrant, the Court should nevertheless exercise its public policy discretion so as to exclude from trial the evidence obtained from that search by reason that it had been justified by a warrant that was predicated upon a reasonable suspicion based in part upon unlawfully obtained information.[27]  His Honour referred in this respect to the decisions of the High Court in R v Ireland[28] and Bunning v Cross.[29]

    [27]   R v Young [2023] SADC 114 at [34], [51], [73], [82].

    [28]   R v Ireland (1970) 126 CLR 321 at 334-335 (Barwick CJ).

    [29]   Bunning v Cross (1978) 141 CLR 54 at 66 (Stephen and Aickin JJ).

22. Applying the decision of this Court in Van Houten v The King,[30] the judge accepted that the use of the infra-red camera did not involve a search or entry for the purposes of s 67 of the Summary Offences Act, or otherwise involve any physical intrusion upon the appellant’s private property so as to amount to a trespass.[31]  As mentioned, this conclusion is no longer challenged.

    [30]   Van Houten v The King [2023] SASCA 57 at [51] (Lovell and David JJA and Mazza AJA).

    [31]   R v Young [2023] SADC 114 at [58]-[62].

23. The trial judge accepted, however, that the opening of the electricity meter box on each of the two occasions DBS Stirling attended the Wingfield premises involved a trespass.[32] In holding that it was appropriate to describe the infringements as “minor to negligible”,[33] and at the “very lowest end of trespass”,[34] his Honour described the trespasses as follows:[35]

    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 premises under warrant.

    [32]   R v Young [2023] SADC 114 at [52], [73].

    [33]   R v Young [2023] SADC 114 at [57], [79].

    [34]   R v Young [2023] SADC 114 at [53].

    [35]   R v Young [2023] SADC 114 at [54]-[56].

1. The trial judge accepted that this finding of impropriety enlivened his discretion to exclude the evidence found when the premises were searched, and that the exercise of this discretion required that he weigh the public interest in the protection of individuals from unlawful and unfair treatment against the interests of the community in bringing to justice people who commit serious crimes.[36]

   [36]   R v Young [2023] SADC 114 at [73].

2. His Honour listed the types of considerations generally relevant in the exercise of this public policy discretion, and then turned to apply them to the present case.

3. The trial judge commenced by noting that the two offences charged were serious. The cultivation charge attracted a maximum penalty of $50,000 or imprisonment for 15 years or both.  The trafficking in a large commercial quantity charge attracted a maximum penalty of $1 million or imprisonment for life or both.  His Honour added that it was also well known that the trafficking of illicit drugs was extremely harmful to individuals and the community, and took up significant police resources to detect and prosecute.[37]

   [37]   R v Young [2023] SADC 114 at [75].

4. The trial judge observed that the evidence obtained in the search was highly probative and would have great importance in the proceedings.[38]  Its cogency was not affected by the police conduct.[39]

   [38]   R v Young [2023] SADC 114 at [76].

   [39]   R v Young [2023] SADC 114 at [81].

5. The trial judge reiterated what he considered to be the insignificant nature of the two infringements:[40]

   The submission the trespasses were a significant infringement of 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.

   …

   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.

   [40]   R v Young [2023] SADC 114 at [77]-[79].

6. In support of this characterisation of the trespasses, the trial judge added that there was no deliberate attempt to undermine or circumvent the law.[41]  Rather, it involved “an opportunistic and mistaken act” by the police officer who, presented with the unusual configuration of an electricity meter box that was accessible from the verge and not locked, stood outside the premises and opened it.[42]  There was no evidence that what occurred was encouraged or tolerated by those in higher authority in the police, or by those responsible for the institution of criminal proceedings.[43] 

   [41]   R v Young [2023] SADC 114 at [81].

   [42]   R v Young [2023] SADC 114 at [78].

   [43]   R v Young [2023] SADC 114 at [78].

7. What occurred in this case was unusual in the sense that DBS Stirling had previously only encountered industrial premises where the electricity meter boxes were within the premises, and it had been her practice in those cases to seek the assistance of the Office of the Technical Regulator (to obtain information about electricity consumption for the particular premises), and then use a search warrant where necessary to obtain access to the meter box.[44] 

   [44]   R v Young [2023] SADC 114 at [78].

8. Related to this, the trial judge had earlier acknowledged that there was potentially a lawful alternative to opening the meter box,[45] which was presumably a reference to the potential to seek the assistance of the Office of the Technical Regulator.  Whilst there was some general evidence to this effect, it was not clear precisely what information or assistance would have been available, and whether it was likely to have assisted in determining the level of electricity being consumed and whether the meter was being bypassed.

   [45]   R v Young [2023] SADC 114 at [52].

9. The trial judge accepted that in opening the electricity meter box, DBS Stirling was not purporting to exercise her coercive power.  She was not purporting to exercise any power to enter or search the premises.  It was only after she had made her second observation of the spinning disc in the meter box that she resolved to execute her general search warrant, albeit that she did not in fact execute it until after she had used the infra-red camera.[46]

   [46]   R v Young [2023] SADC 114 at [80].

10. Having weighed the public interest in protecting individuals from unlawful and unfair treatment against the interests of the community in bringing to justice people who commit serious crimes, the trial judge ultimately declined to exercise his public policy discretion to exclude the evidence from the search of the Wingfield premises.[47]

    [47]   R v Young [2023] SADC 114 at [82].

11. As mentioned earlier, having declined to exclude the evidence of the hydroponic cannabis operation obtained through the search, the trial judge proceeded to hear the trial of the two charges ‘on the papers’.  Whilst there was a significant volume of other evidence relevant to the appellant’s involvement with the cannabis operation, the evidence obtained from the search was central to the prosecution case.

12. The trial judge convicted the appellant of both offences.[48] 

    [48]   R v Young (No 2) [2023] SADC 116.

    Ground 4: reasonableness of the police officer’s suspicion

13. In challenging the trial judge’s finding that DBS Stirling’s suspicion that the Wingfield premises were being used to grow cannabis was reasonable for the purposes of s 67(4) of the Summary Offences Act, the appellant relies upon four broad submissions.

14. The first involves a challenge to the cogency of the information received through the Crime Stoppers report.  The second involves a challenge to the significance of the observations made by DBS Stirling upon her two attendances.  The third and fourth involve challenges to the trial judge’s reliance upon the observations made by opening the meter box and by using the infra-red camera.

15. In addressing the significance of the information in the Crime Stoppers report, it is relevant to commence by noting DBS Stirling’s evidence to the effect that it was not unusual for police to receive and act on information received in this way, including executing search warrants based on such information.  In other words, police have accumulated experience in receiving and assessing the significance of information received in this way.  Like a report from any informant, it is difficult to generalise about the weight that might reasonably be attached to a Crime Stoppers report.  Much will depend upon an analysis of its likely cogency, having regard to its source, timing and content.

16. By way of illustration, in McHugh v The King,[49] the police officer executed a general search warrant relying upon a suspicion based primarily on information received through a Crime Stoppers report about a drug operation.  The Court upheld the reasonableness of the police officer’s suspicion, having regard to the particularity of the information and its capacity to suggest that the informant had a degree of close knowledge of the defendant’s activities.[50]  The information was treated as having some cogency despite it being from an anonymous source and about three months old by the time it was relied upon to exercise the warrant.

    [49]   McHugh v The King [2022] SASCA 5.

    [50]   McHugh v The King [2022] SASCA 5 at [9] (Kourakis CJ, Lovell and Doyle JJA agreeing).

17. Here, it was relevant that the information came from an anonymous source.  On the other hand, the content of the information suggested that it had come from a person who had been in a position to make personal observations over a period of time.  Whilst a mistaken or deliberately false complaint could not be excluded, there was reason to believe that the information was more than idle gossip or speculation by a person without any direct knowledge.

18. It was also relevant that the report was very recent and related to multiple observations made over a period of time (given the reference to the cannabis smell “getting stronger over the last few weeks” and to the visiting male keeping the gates locked and the door closed).

19. The report was linked to a particular shed on a particular premises.  And the balance of the observations contained in the report also had a degree of specificity about them.

20. Several aspects of the information provided were probative of a cannabis operation.  Obviously there was the cannabis smell, which was noticed over a period of a few weeks and was getting stronger.  There was also the fact that the shed was in an industrial area (connoting a potentially lower level of activity and risk of detection than might exist in an area with adjacent residential premises), and that the shed did not have any business name or signage (contrary to what one might expect of an ordinary commercial premises).  There were observations of a person and vehicles attending the premises, but in circumstances that suggested a level of concern for security and secrecy (that is, locking the gates upon entry, and never leaving the shed door open).

21. Importantly, some aspects of the report were able to be corroborated by DBS Stirling when she attended the premises, just three days after the report was made.  She found a shed at the nominated address which was consistent with the description given, in that it was in an industrial area rather than residential street, it did not have any signage, and the gate was locked.  It was also relevant that there appeared to be a faint light coming from within the shed, despite it being after 9.00 pm and there being no sign of anyone on the property.  Putting the information obtained from opening the meter box to one side for the moment, the observations made on 7 September 2021 by DBS Stirling, while not very significant on their own, nevertheless tended to corroborate, and therefore support the cogency of the information in the Crime Stoppers report.

22. It is true that DBS Stirling was not able to detect any smell of cannabis when she attended the premises, but this did not detract significantly from the cogency of the balance of the information available to her.  It was reasonable to think that the smell emanating from a cannabis operation might vary over time, depending upon not only the stage of the operation, but also the conditions (such as the strength and direction of the wind) and the location of the person making observations (such as from the front of the premises, or from a neighbouring premises).

23. The Crime Stoppers report, in conjunction with the corroborating observations described above, was probably a sufficient basis for a reasonable suspicion of a cannabis operation within the shed at the Wingfield premises.  However, it is not necessary to express a concluded view about this because it is also appropriate to take into account the observations made of the electricity meter box (on both occasions DBS Stirling attended the Wingfield premises) and using the infra-red camera.

24. Even accepting that the observations of the electricity meter box involved a trespass, this is no barrier to these observations being taken into account in determining whether DBS Stirling genuinely held an objectively reasonable suspicion. Just as s 67(4) of the Summary Offences Act does not require that the suspicion be based upon information which would be admissible evidence, it also does not exclude reliance upon information that might have been obtained through some impropriety on the part of the police.  The significance of any such impropriety falls to be considered separately, through the prism of the public policy discretion to exclude from the trial any evidence obtained through a search warrant based upon a suspicion grounded in improperly obtained information.  The opening of the meter box was not itself a search of the premises purportedly supported by some power of compulsion.  Nor was evidence of the observations made of the meter disc sought to be led at trial.  These observations were relied upon only in support of the reasonableness of DBS Stirling’s suspicion that justified the execution of her general search warrant.

25. The observations made of the meter box were significant.  Whilst DBS Stirling was probably interested in learning whether the electricity was being diverted, her observation that the meter disc was spinning very quickly was consistent with her experience and understanding as to the amount of power required by a hydroponic cannabis operation.  Although most (but not all) of her experience was with hydroponic cannabis operations in residential premises, this did not deprive her observations of significance, particularly when contrasted with the limited power that would have been required to operate a few lights at an otherwise apparently unattended industrial premises.

26. It may be accepted that the further observations of the meter box made the following evening did not add much, but it was of at least some relevance that the meter disc was still spinning quickly, despite the continued lack of activity at the premises.

27. Further, for the reasons explained earlier, when considering whether DBS Stirling had reasonable cause to suspect that the Wingfield premises were being used to grow cannabis, it was appropriate to take into account the observations that she made with the infra-red camera.  There is no longer any challenge to the lawfulness or propriety of her use of this device, and the observations were made prior to DBS Stirling executing her general search warrant, and then entering and searching the premises.  The observations she made were significant in that they tended to indicate a source of heat within the shed, consistent with what she understood might be generated by a hydroponic set up, and not otherwise to be expected at an unattended commercial premises.

28. As explained earlier, it was not necessary that there be a reasonable basis for DBS Stirling to prove or know, or even believe, that the Wingfield premises were being used in this way.  Whilst a suspicion requires something more than mere curiosity, speculation or idle wondering, it connotes something less than established facts.[51]  It permits some uncertainty, and consideration of what might be the fact.  Bearing all of the above in mind, there was reasonable cause for DBS Stirling to suspect that the shed at the Wingfield premises was being used to grow cannabis. 

    [51]   R v Nguyen [2016] SASCFC 96 at [59] (Doyle J, Vanstone and Bampton JJ agreeing).

    Ground 5:  public policy exclusion

29. The trial judge found, and it is common ground, that DBS Stirling committed a trespass on each of the two occasions that she attended the Wingfield premises and opened the electricity meter box at the front of the premises.  It was shortly after the second of these two trespasses that DBS Stirling resolved to execute her general search warrant, and then proceeded to enter and search the Wingfield premises.

30. For the reasons summarised earlier, the trial judge declined to exercise his public policy discretion to exclude from the trial the evidence obtained through the search of the Wingfield premises.  In Ground 5, the appellant challenges the judge’s decision not to exercise this discretion.

31. Before addressing the substance of the appellant’s arguments in support of this ground, there are two preliminary matters that must be addressed.  The first is to identify the precise framework through which the public policy discretion falls to be considered in the present case, given that the impropriety relied upon related to DBS Stirling’s earlier conduct in accessing the electricity meter box, rather than her execution of the search warrant that revealed the evidence sought to be excluded.  The second preliminary matter is to identify the applicable standard of appellate review.

32. In addressing these preliminary matters, it is appropriate to commence with some general observations in relation to the nature and scope of the public policy discretion.

    The public policy discretion

33. The public policy discretion to exclude evidence obtained through unlawful or improper means was recognised in the reasons of the High Court in R v Ireland.[52] In particular, Barwick CJ (with whom the other members of the Court agreed) said that “[e]vidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible”.[53]  However, his Honour added:[54]

    Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion.

    [52]   R v Ireland (1970) 126 CLR 321.

    [53]   R v Ireland (1970) 126 CLR 321 at 334 (Barwick CJ, McTiernan, Windeyer, Owen and Walsh JJ agreeing).

    [54]   R v Ireland (1970) 126 CLR 321 at 335 (Barwick CJ, McTiernan, Windeyer, Owen and Walsh JJ agreeing).

34. In Bunning v Cross,[55] Stephen and Aickin JJ (with whom Barwick CJ agreed) confirmed the existence of this discretion.  They described it as applying when the evidence sought to be excluded “is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon CJ put it … unlawful or improper conduct)”.[56]  They emphasised that its rationale lay in the balancing of competing public policy interests, rather than the need to ensure fairness to a particular accused:[57]

    What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.  This being the aim of the discretionary process called for in Ireland it follows that it by no means takes as its central point the question of unfairness to the accused.  It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.

    [55]   Bunning v Cross (1978) 141 CLR 54.

    [56]   Bunning v Cross (1978) 141 CLR 54 at 75 (Stephen and Aickin JJ, Barwick CJ agreeing).

    [57]   Bunning v Cross (1978) 141 CLR 54 at 74-75 (Stephen and Aickin JJ, Barwick CJ agreeing).

35. Similar observations were made by the High Court in Cleland v The Queen,[58] Pollard v The Queen,[59] Ridgeway v The Queen,[60] R v Swaffield[61] and Nicholas v The Queen.[62]  Through these cases, the Court has emphasised the competing public policy interests in:[63]

    ·on the one hand, protecting an accused person’s freedom from arbitrary and unlawful intrusion upon their lives and rights; deterring police from engaging in unlawful, improper and unfair treatment of an accused person; and avoiding any diminishment of judicial integrity through the appearance of curial approval or encouragement of police misconduct; and

    ·on the other hand, ensuring that those who commit crimes are brought to justice; and that the credibility and legitimacy of the criminal trial process is maintained through trials which represent a genuine attempt to establish the facts upon which a decision depends by reference to all relevant evidence.

    [58]   Cleland v The Queen (1982) 151 CLR 1 at 20 (Deane J).

    [59]   Pollard v The Queen (1992) 176 CLR 177 at 202-203 (Deane J).

    [60]   Ridgeway v The Queen (1995) 184 CLR 19 at 31-36 (Mason CJ, Deane and Dawson JJ), 77 (Gaudron J).

    [61]   R v Swaffield (1998) 192 CLR 159 at 175-180 (Brennan CJ), 190-191 (Toohey, Gaudron and Gummow JJ), 212 (Kirby J).

    [62]   Nicholas v The Queen (1998) 193 CLR 173 at 201 (Toohey J), 209-210 (Gaudron J), 215-218, (McHugh J), 257-258, 264-265 (Kirby J), 275 (Hayne J).

    [63]   See also the helpful discussion of the public policy considerations in Kerri Mellifont, Fruit of the Poisonous Tree: Evidence Derived from Illegally or Improperly Obtained Evidence (Federation Press, 2010) in particular Chapters 1 and 2; Kenneth J Arenson, ‘Rejection of the Fruit of the Poisonous Tree Doctrine in Australia: A Retreat from Progressivism’ (2011) 13 UNDALR 17.

1. In exercising the discretion, and hence in considering and weighing the competing requirements of the above public policy concerns, the courts in Bunning v Cross and subsequent decisions have identified several relevant considerations:[64]

   ·the seriousness of the charged offending;

   ·whether the misconduct was deliberate or resulted from a mistake;

   ·whether the misconduct affected the cogency of the evidence so obtained;

   ·the probative value of the evidence, and its importance in the proceedings;

   ·the ease with which those responsible for the misconduct might have complied with the law in procuring the evidence in question;

   ·the legislative intention (if any) in relation to the law said to have been infringed; and

   ·whether such misconduct was 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.

   [64]   Bunning v Cross (1978) 141 CLR 54 at 78-80 (Stephen and Aickin JJ, Barwick CJ agreeing); Ridgeway v The Queen (1995) 184 CLR 19 at 38 (Mason CJ, Deane and Dawson JJ); R v Swaffield (1998) 192 CLR 159 at [135] (Kirby J).

   The framework for analysis

2. The typical case in which the public policy discretion operates is where the evidence sought to be excluded was directly obtained or procured by the misconduct said to enliven the discretion.  A paradigm case is where, for example, the defendant seeks to exclude evidence obtained from a search in circumstances where the search itself was unlawful or improper.  Such cases are consistent with the references in R v Ireland to the discretion being enlivened where the evidence was ascertained or procured by means of the misconduct, and in Bunning v Cross to the discretion being enlivened where the evidence was a product of the misconduct.

3. Some authorities have considered whether misconduct which occurs after the evidence has been (lawfully) obtained might enliven the discretion.  While the answer that has been given is that subsequent misconduct – even if associated in some way – will not generally suffice to enliven the discretion,[65] it has been acknowledged that it may do so if the subsequent misconduct is closely connected with obtaining the evidence (for example, if it occurs immediately afterwards and consists of a breach of a statutory safeguard directed to the reliability of the evidence).[66]

   [65]   Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288 (Doyle CJ, Cox and Mathieson JJ agreeing), holding that the discretion was not enlivened by subsequent false evidence by police about the circumstances in which they obtained the evidence, where the evidence was nevertheless obtained through a lawful search and seizure.

   [66]   See, for example, DPP v Moore (2003) 6 VR 430 at [55]-[57] (Chernov JA), [91] (Eames JA), (Batt JA dissenting), holding that the discretion was enlivened in circumstances where evidence of a breath analysis was obtained lawfully, but a police officer then improperly advised the defendant not to pursue his statutory right to a blood test on the basis that it would be less favourable to the defendant. See also French v Scarman (1979) 20 SASR 333 to similar effect (criticised in R v Lobban (2000) 77 SASR 24 at [39]-[41] (Martin J, Doyle CJ and Bleby J agreeing), but then supported in Police v Hall (2006) 95 SASR 482 at [41]-[45] (Doyle CJ), [96] (Bleby J), [190] (Gray J, Nyland J agreeing) [216] (Vanstone J)).

4. The present case raises a different issue.  It raises for consideration whether the public policy discretion may be enlivened in a case where the evidence sought to be excluded was obtained through lawful means, but utilising evidence or information obtained through some earlier misconduct; for example, where, as here, the evidence sought to be excluded was obtained through a lawful search, but in circumstances where the requisite reasonable suspicion was based (in part) upon information obtained through misconduct in the form of a trespass.

5. Put another way, the issue that arises in the present case involves the discretion to exclude what may be referred to as ‘derivative evidence’.  Whilst common in academic writing and in other jurisdictions,[67] this is not a term generally used in Australian case law.  However, it is a convenient label to describe evidence which, whilst not itself obtained by unlawful or improper means, can nevertheless be traced back to, or be said to be derived from, earlier misconduct.  While it can be said that there is a causal link between the misconduct and the derivative evidence, the derivative evidence is at least one step removed from the misconduct, and thus apparently less tainted than the primary evidence or information obtained directly from that misconduct.

   [67]   See the summary of the use of the term ‘derivation evidence’ in Mellifont (supra n 63), pp 1-8.

6. The potential for the public policy discretion to operate to exclude derivative evidence arose for consideration in DPP v Riley.[68] The defendant was charged with two drink-driving offences.  He was stopped by police who mistakenly believed that he was driving a stolen vehicle.  After some inappropriately rough handling (referred to in the reasons as “the matters at the roadside”), the police lawfully arrested the defendant and took him to the police station.  Whilst at the station, the defendant was breath tested.  However, prior to the breath test, the defendant’s detention had ceased to be lawful because the police had become aware the vehicle was not stolen.  Thus, while the police had been entitled to request that the defendant undergo a breath test, they did not make the request until after his detention had become unlawful.  The magistrate exercised the public policy discretion, excluded the breath test evidence, and dismissed the charges.

   [68]   DPP v Riley (2007) 16 VR 519.

7. On appeal, the prosecution argued that the magistrate erred in holding that the public policy discretion to exclude the breath test evidence had been enlivened, or in the alternative in exercising the discretion in favour of exclusion of the breath test.

8. Hansen J commenced his analysis of the issue by referring to the authorities addressing misconduct after the challenged evidence was obtained, observing that the discretion would only be enlivened in such cases if there was a relevant connection between misconduct and the obtaining of the evidence.[69] 

   [69]   DPP v Riley (2007) 16 VR 519 at [23] (Hansen J).

9. Turning to address the misconduct described as “the matters at the roadside”, Hansen J held that the link between that conduct and the obtaining of the evidence was too tenuous to say that the evidence was obtained by means of that misconduct.  It followed that this misconduct did not enliven the discretion:[70]

   In my view it was not open to the magistrate to decide, on the basis of the matters at the roadside, that the public policy discretion arose for consideration.  As the authorities make clear, the public policy discretion only arises for consideration when the relevant evidence is procured by means of unlawful or improper conduct.  In the present case, can it be said that the evidence of the breath analysis was the product of unlawful or improper conduct by the police?  Or, as Chernov JA put it in Moore, was the improper conduct the means by which the evidence was obtained or did the obtaining of the evidence involve such conduct?  In my view, the link between the “excessive” conduct at the roadside and the obtaining of the evidence is so tenuous that it cannot reasonably be said that the evidence was obtained by means of that improper conduct.  The present case is readily distinguishable from Bunning v Cross, where the police officer failed to administer a preliminary breath test to the defendant at the roadside but nevertheless (and in contravention of the statute) took the defendant to the police station and administered a breath analysis.  In those circumstances, it could readily be said that the evidence of the breath analysis was obtained by reason of the fact that the defendant had been taken to the police station unlawfully.  In the present case, the respondent was lawfully arrested and taken to the police station under suspicion of stealing the Commodore.  After the respondent arrived at the police station, the police were still entitled to request the respondent to undergo a preliminary breath test, which they duly did.  In effect, the informant’s conduct at the roadside was overtaken by subsequent events.  It simply cannot be said that the evidence of the breath analysis was obtained by means of the roadside conduct.  The magistrate thus erred in deciding that the discretion arose for consideration on the basis of the roadside matters.

   [70]   DPP v Riley (2007) 16 VR 519 at [28] (Hansen J).

10. Hansen J also held that there was an insufficient connection between the period of unlawful detention and the obtaining of the breath analysis to enliven the discretion:[71]

    As to the period of unlawful detention, there is some connection between the evidence of the breath analysis and the unlawful detention, in the sense that as a result of the unlawful detention the respondent was at the police station when the preliminary breath test was requested.  But even assuming that the respondent had been informed by the police that he was no longer under arrest as soon as they became aware that the Commodore was not a stolen vehicle, the respondent could have been required to undergo a preliminary breath test and then a breath analysis at that time.  He may have sought to leave, or left, the police station and thereby risked committing the offence of refusing to undergo a preliminary breath test, but that was no different from the situation in which he found himself half an hour or so later.  That is to say, the breath analysis was not obtained by means of the improper conduct, but rather was obtained in circumstances where the respondent happened to have been held in custody for about half an hour more than he should have been, but where that conduct could not in any real way be said to be the means by which the evidence was obtained.  It was obtained pursuant to the request, which request could as equally have been made prior to discovering that the Commodore was not stolen or subsequent to that discovery.

    For these reasons, it would not have been open to the magistrate to decide that the public policy discretion arose for consideration on the basis of the unlawful detention.

    [71]   DPP v Riley (2007) 16 VR 519 at [31]-[32] (Hansen J).

11. Hansen J concluded by observing that, in his view, even if the discretion had been enlivened, the proper exercise of the discretion would have been to admit the evidence of the breath analysis.[72]

    [72]   DPP v Riley (2007) 16 VR 519 at [35] (Hansen J).

12. It can thus be seen that Hansen J approached the potential application of the public policy discretion to exclude derivative evidence by focussing upon whether the connection between that evidence and the earlier misconduct was such that it could properly be described, consistently with the language used in R v Ireland and Bunning v Cross, as having been obtained by means of that misconduct.

13. There is surprisingly little other discussion of the common law public policy exclusion of derivative evidence in Australian case law.  Whilst the issue has arisen in several cases involving confessional evidence, the discussion in those cases has tended to focus upon considerations unique to that type of evidence rather than being of general application.[73]

    [73]   See, for example, the survey of the authorities in Mellifont (supra n 63), pp 167-184.

14. 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.

15. 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).

16. 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.

17. At trial, the appellants challenged the admissibility of the surveillance evidence, the search warrant evidence and the admissions on the basis of the unlawful conduct on the part of L.  The trial judge declined to admit any of the evidence on the basis that the surveillance evidence had been obtained unlawfully, and that the search warrant evidence and admissions had been obtained as a result of that unlawful conduct.  The New South Wales Court of Criminal Appeal allowed the appeal, holding that the first recording from the surveillance evidence, the search warrant evidence and the admissions were admissible.  The High Court held that the surveillance evidence should be excluded, but that the search warrant evidence and admissions were admissible.

18. In upholding the trial judge’s decision to exclude the (primary) surveillance evidence, the High Court reasoned:[76]

    His Honour was right to find that each video-recording was the product of a serious contravention of Australian law. The seriousness of the contravention was in each case the greater because the recording was made in deliberate contravention of the law with a view to assembling evidence which it was believed the proper authorities would be unable to lawfully obtain. To the extent that it was more difficult to lawfully obtain evidence of live baiting before the first video-recording was made, this was a factor which weighed against admitting it. There is no suggestion that the trial judge erred in his assessment of the other s 138(3) factors. His Honour’s determination that none of the surveillance evidence is admissible is correct.

    [76]   Kadir v The Queen (2020) 267 CLR 109 at [37] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

19. Turning to the (derivative) search warrant evidence and admissions, the Court explained that while the causal link to L’s unlawful conduct was sufficient to engage s 138(1)(b), the lawfulness of the search warrant obtained by the regulator, and the tenuous nature of the causal link in respect of the admissions, were relevant in weighing the public interests:[77]

    As the Court of Criminal Appeal observed, s 138 does not enact the doctrine that prevailed in the United States, requiring the exclusion of the “fruit” of official illegality unless the impugned evidence was derived “by means sufficiently distinguishable to be purged of the primary taint”.[78] Section 138 provides for the exclusion of evidence obtained by, or in consequence of, impropriety or illegality, unless the product of balancing the competing public interests favours admitting the evidence. The trial judge's analysis of the admissibility of the search warrant evidence and the admissions did not go beyond satisfaction of the causal link between the evidence and the contravention of the SDA. The causal link engages s 138, but the weighing of the competing public interests under s 138(1) involved considerations which are not the same as those applying to the admissibility of the surveillance evidence.

    As the Court of Criminal Appeal also observed, where the misconduct involves the same investigative body, the considerations relevant to weighing the public interests will commonly be the same in respect of evidence obtained under s 138(1)(a) or (b). Here, the surveillance evidence was obtained in contravention of the law by a private body (or persons engaged by it), whereas the search warrant evidence was obtained by a regulator acting lawfully and without prior knowledge of the contravention, albeit that it was procured on the strength of the surveillance evidence. The causal link between the contravention and the admissions was tenuous, a consideration which the Court of Criminal Appeal was right to find was capable of affecting the weighing of the public interest in not giving curial approval or encouragement to the unlawful conduct.[79]

    [77]   Kadir v The Queen (2020) 267 CLR 109 at [40]-[41] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

    [78]   R v Grech [2017] NSWCCA 288 at [120], citing Wong Sun v United States (1963) 371 US 471 at 484, 488; and see ALRC, Evidence, Report No 26 (Interim) (1985), vol 1 at 532-533 [961].

    [79]   R v Grech [2017] NSWCCA 288 at [141].

20. Having found error in the approach taken below, the High Court considered that the appropriate course was for it to determine the admissibility of the search warrant evidence and admissions for itself.[80] 

    [80]   Kadir v The Queen (2020) 267 CLR 109 at [45] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

21. In deciding that the search warrant evidence was admissible, it was relevant that the RSPCA was not complicit in, or even aware of, Animal Australia’s plan to illegally record activities at K’s property:[81]

    The onus is upon the respondent to establish that the desirability of admitting the search warrant evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained. The capacity of the search warrant evidence to rationally affect the assessment of the probability that the appellants committed acts of serious animal cruelty is high. The fact that the prosecution case does not include the surveillance evidence increases the importance of the search warrant evidence in the proceeding. Its importance is high. The nature of the offence is, as the trial judge found, serious. The gravity of the contravention is, as his Honour found, “very high”. The contravention was repeated and deliberate. It interfered with Mr Kadir's privacy, a breach of Art 17 of the ICCPR. In circumstances in which the recording was confined to activity in the bullring and did not extend to Mr Kadir’s home, and in light of the nature of the activity conducted in the area that was the subject of the recording, his Honour was right to accord this factor no particular weight. The circumstance that neither Ms White nor Ms Lynch is likely to be subject to any proceeding arising out of the contravention is a neutral consideration. In circumstances in which the RSPCA was not complicit in the contravention, factor (h) is also neutral.

    The admissibility of the search warrant evidence arises in criminal proceedings in which the desirability of admitting the evidence reflects the public interest in the conviction of wrongdoers. The undesirability of admitting evidence obtained in consequence of the deliberate unlawful conduct of a private “activist” entity is the effect of curial approval, or even encouragement, of vigilantism. The RSPCA had no advance knowledge of Animals Australia's plan to illegally record activities at the Londonderry property. There is nothing to suggest a pattern of conduct by which Animals Australia or other activist groups illegally collect material upon which the RSPCA takes action. The desirability of admitting evidence that is important to the prosecution of these serious offences outweighs the undesirability of not admitting evidence obtained in the way the search warrant evidence was obtained.

    [81]   Kadir v The Queen (2020) 267 CLR 109 at [47]-[48] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

1. Finally, in holding that the admissions were admissible in the case against K, the Court accepted that the limited or tenuous nature of the connection between the unlawful recording and the admissions meant that admission of the evidence was unlikely to convey curial approval or encouragement of the misconduct:[82]

   Since the evidence of the admissions is capable of rational acceptance,[83] consideration of the probative value of the admissions is to be assessed upon the assumption that the evidence will be accepted.[84] Their probative value is high and they are important evidence in the case against Mr Kadir. The remaining factors under s 138(3) have the same weight in relation to the admissions as to the search warrant evidence. The undesirability of admitting the admissions does not raise the same concerns with respect to condoning vigilantism as does the search warrant evidence. As the Court of Criminal Appeal rightly observed, the obtaining and viewing of the surveillance evidence was a step in the investigation by Animals Australia that led to Ms Lynch speaking with Mr Kadir, but that was all.[85] And as their Honours also observed, Ms Lynch did not make use of any knowledge that she gained from the surveillance evidence in her conversation with Mr Kadir.[86] Their Honours' conclusion, that the bare connection between the contravention of Australian law and obtaining the admissions is unlikely to convey curial approval or encouragement of the contravention, is apt.[87] The undesirability of admitting evidence obtained in the way the admissions were is outweighed by the desirability of the evidence being admitted in support of the prosecution case.

   [82]   Kadir v The Queen (2020) 267 CLR 109 at [51] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

   [83]   IMM v The Queen (2016) 257 CLR 300 at 312 [39], 317 [58] per French CJ, Kiefel, Bell and Keane JJ; R v Bauer (2018) 92 ALJR 846 at 865 [69] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

   [84]   IMM v The Queen (2016) 257 CLR 300 at 315 [52] per French CJ, Kiefel, Bell and Keane JJ.

   [85]   R v Grech [2017] NSWCCA 288 at [140].

   [86]   R v Grech [2017] NSWCCA 288 at [139].

   [87]   R v Grech [2017] NSWCCA 288 at [141].

2. It can be seen that the approach to s 138 indicated by the High Court’s reasons in Kadir v The Queen stops short of the ‘fruit of the poisonous tree’ approach to the exclusion of evidence that is applied in the United States (albeit that some of the exceptions[88] that have been developed in the United States resemble the matters relevant to whether the s 138 and common law public policy discretions are enlivened and should be exercised).

   [88]   For example, the ‘attenuated connection’, the ‘independent source’ and the ‘inevitability of discovery’ exceptions.

3. On the other hand, because the s 138 discretion is enlivened not only by evidence obtained improperly or unlawfully (s 138(1)(a)) but also evidence obtained “in consequence” of improper or unlawful conduct (s 138(1)(b)), it can also be seen that it may be enlivened by misconduct which occurs prior to, and separately from, the obtaining of the derivative evidence. Where the causal link between the misconduct and the obtaining of that evidence is tenuous, this is generally a matter that is relevant to the weighing of competing public interests, rather than a matter which prevents the discretion being enlivened.

4. However, as explained by Hansen J in DPP v Riley, the common law public policy discretion is not quite so readily enlivened.  In determining whether that public policy discretion is enlivened, the issue is whether the derivative evidence sought to be excluded was obtained by means of, or was the product of, the police misconduct.  Where the misconduct occurs prior to evidence being obtained, it may be helpful to consider whether there is a sufficient connection between the misconduct and the obtaining of the derivative evidence.  It may also be helpful to consider whether there is a causal link between the two and, if so, whether that link has become tenuous, or has been overtaken by subsequent events.  That said, whilst these labels may be helpful in analysing the relationship between the misconduct and the obtaining of the evidence, the issue remains whether it can properly be said that the evidence sought to be excluded was obtained by means of, or was the product of, the misconduct of the police.

5. In the present case, the misconduct (the two trespasses involved in opening the electricity meter box) occurred prior to the search that yielded the derivative evidence sought to be excluded.  The search itself occurred pursuant to a general search warrant that was lawfully executed by DBS Stirling.  However, the execution of that warrant was predicated upon DBS Stirling having a reasonable suspicion that the Wingfield premises were being used to grow cannabis.  And, as explained earlier, in forming the requisite suspicion, DBS Stirling relied upon several matters, including not only the information that she had received through the Crime Stoppers report and her corroborating observations at the Wingfield premises, but also her observations upon opening the electricity meter box on the two occasions that she attended the Wingfield property.  Even if there might have been a proper basis for DBS Stirling to hold a reasonable suspicion without her observations of the spinning meter disc, it was apparent from her evidence that these observations informed her suspicion.  Whilst DBS Stirling did not address the issue in terms, it is a fair inference from her evidence that her observations of the meter disc materially contributed to her suspicion.

6. In circumstances where the information ascertained through her trespasses was material to the legal basis for the search that was conducted of the Wingfield premises, I am satisfied that there was a sufficient connection between the misconduct and the derivative evidence obtained by the search to enliven the public policy discretion to exclude that evidence.  Indeed, there was a relatively close temporal, circumstantial and causal connection between the misconduct and derivative evidence.  I do not think that the connection in the present case can be dismissed as tenuous.  Nor can it be said that the trespass was entirely overtaken by what occurred subsequently.  In other words, the evidence from the search may aptly be described as having been obtained by means of, or procured by, DBS Stirling’s trespasses.

7. It follows that the trial judge was correct to treat the public policy discretion as having been enlivened.  That said, as Kadir v The Queen demonstrates, the separation between the misconduct and the derivative evidence sought to be excluded may nevertheless inform the exercise of the discretion to exclude that evidence.

   The standard of appellate review

8. This appeal is an appeal by way of rehearing.  However, the nature of the appellate task, or the standard of appellate review, depends upon the nature of the decision under challenge.  When the challenge is to a discretionary decision which admits of more than one correct answer, the principles of appellate restraint in House v The King[89] must be applied.  However, when the challenge is to a decision which admits of only one correct answer, then the ‘standard of correctness’ explained in Warren v Coombes[90] applies.  And that is so even if the decision involves an evaluative assessment or judgment.

   [89]   House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

   [90]   Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ).

9. The High Court recently addressed the standard of appellate review in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.[91]  Kiefel CJ, Gageler and Jagot JJ explained:[92]

   The reasoning in House v The King applies to judicial decisions involving an exercise of discretion.[93] It has been said that the concept of a “discretion” is “apt to create a legal category of indeterminate reference”,[94] but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis,[95] for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for “value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right”.[96] The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the “correctness standard” applies) was identified as that between questions lending “themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions” in which event “it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance”,[97] and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.[98]

   [91]   GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857.

   [92]   GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [16] (Kiefel CJ, Gageler and Jagot JJ); see also at [89] (Steward J), and [161] (Gleeson J).

   [93]   House v The King (1936) 55 CLR 499 at 504.

   [94]   Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at [37]; 82 ALJR 669.

   [95]   Norbis v Norbis (1986) 161 CLR 513; 60 ALJR 335.

   [96]   Norbis v Norbis (1986) 161 CLR 513 at 518; 60 ALJR 335.

   [97]   Norbis v Norbis (1986) 161 CLR 513 at 518; 60 ALJR 335.

   [98]   Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 562‑563 [46]‑[49], 574‑575 [85]‑[87].

10. Applying these principles, the High Court held that the decision of the court below permanently staying proceedings on the ground that a trial would constitute an abuse of process did not involve a discretion in the relevant sense.  Rather, it involved a decision that fell to be reviewed by reference to the standard of correctness.[99]  In explaining this conclusion, the Court acknowledged that the question whether to grant a stay involves the balancing of a variety of factors and considerations, but also emphasised that the ultimate question is not merely whether the unfairness to one party of granting the stay outweighs the unfairness to the other party of granting the stay.[100]  Rather, it involves a determination by the court that permitting a matter to go to trial, and rendering a verdict following trial, would be irreconcilable with the administration of justice through the operation of the adversarial system.[101]  This involves an evaluative process, but the law tolerates only one correct answer.[102]

    [99]   GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [1], [3], [7]-[23] (Kiefel CJ, Gageler and Jagot JJ), [90]-[96] (Steward J), [161] (Gleeson J).

    [100] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [22] (Kiefel CJ, Gageler and Jagot JJ).

    [101] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [3], 18], [20]-[23] (Kiefel CJ, Gageler and Jagot JJ), [95] (Steward J), [161] (Gleeson J).

    [102] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [17] (Kiefel CJ, Gageler and Jagot JJ), [161] (Gleeson J).

11. Returning to the present case, the decision of the primary judge under challenge involved an exercise of his common law public policy discretion (the Bunning v Cross discretion) to exclude evidence obtained through illegal, improper or unfair means.  The parties were content to approach the appeal on the basis that this decision fell to be reviewed by reference to the principles of appellant restraint in House v The King.  This was understandable given that the decision is routinely described as a discretion, and has generally been treated this way in the authorities.  However, as raised with the parties in oral argument, the issue of whether the public policy ‘discretion’ is in fact a discretion in the relevant sense has not been definitively resolved.

12. In considering this issue, the starting point is that the decision whether to exclude evidence obtained by illegal or improper means on public policy grounds was described as a discretion in R v Ireland, Bunning v Cross and the other High Court decisions referred to earlier in these reasons, and has routinely been treated as a discretion which, upon appeal, attracts the principles of appellate restraint.  Examples in this jurisdiction include R v Rockford.[103] It appears that a similar approach has generally been taken interstate, both in relation to the common law public policy discretion, and in relation to s 138 of the Uniform Evidence Law. However, until some recent decisions in relation to s 138, which have cast doubt upon this orthodoxy, this has generally occurred without any consideration of the issue of principle.

    [103] R v Rockford (2015) 122 SASR 391 at [37]-[47] (Stanley J, Kourakis CJ and Sulan J agreeing).

13. In Kadir v The Queen,[104] the respondent argued that the balancing test under s 138 attracts the standard of correctness. In so arguing, the respondent emphasised that the section requires a binary determination in that the judge is required to determine whether the evidence is admissible or inadmissible, rather than to fashion orders from amongst a range of outcomes. The respondent contended that the provision demands a unique outcome, rather than a judicial choice. It is thus very different from other broad discretions to which the principles of appellate restraint typically apply. It also involves consideration of matters in respect of which the appellate court was generally in as good a position to assess and weigh as the trial judge. The respondent also sought to emphasise the differences between s 138 and the common law public policy discretion upon which it is based.[105] However, the High Court did not ultimately determine the issue, expressly leaving open whether the balancing test under s 138(1) admits of “a unique outcome” such that it is not necessary to demonstrate House v The King error on appeal.[106]  

    [104] Kadir v The Queen (2020) 267 CLR 109.

    [105] Kadir v The Queen (2020) 267 CLR 109 at 117.

    [106] Kadir v The Queen (2020) 267 CLR 109 at [9] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).

14. The issue was subsequently considered by the New South Wales Court of Criminal Appeal in R v Riley.[107] Bathurst CJ commenced his analysis by observing that a decision to admit or reject evidence will generally involve a question of law which allows for only one answer.[108]  His Honour noted that, in light of the High Court’s decision in R v Bauer, this approach extends to a decision to admit or reject tendency evidence having regard to its probative value: “the question of whether evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”.[109]

    [107] R v Riley [2020] NSWCCA 283.

    [108] R v Riley [2020] NSWCCA 283 at [91] (Bathurst CJ).

    [109] R v Riley [2020] NSWCCA 283 at [101], [107] (Bathurst CJ); R v Bauer (2018) 266 CLR 56 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

15. After observing that the issue had been expressly left open in Kadir v The Queen, Bathurst CJ examined the nature of the decision required by s 138.[110]  He noted its concern with the matters of public policy identified by Stephen and Aickin JJ in Bunning v Cross.  He noted that s 138(1) posed the question of whether the “desirability” of admitting illegally or improperly obtained evidence outweighed the “undesirability” of doing so; and that s 138(3) identified a series of factors which were to be taken into account in determining that matter. His Honour then expressed a preference for the view that a challenge to a decision made under s 138 did not attract the principles of appellate restraint:[111]

    Though it is correct that the matters to be taken into account in s 138(3) pull in different directions, and it is certainly correct that minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, there can only be one correct answer. It seems to me that ultimately, the question posed by the section demands a unique outcome in the sense described by Gageler J in SZVFW at [49]. Further, with respect to a matter which involves important competing questions of public policy, it does not seem to me that merely because the decision by the primary judge could be said to involve an evaluative process, a court of appeal should not substitute its own view on the binary question if it considers that the conclusion reached by the trial judge was incorrect: see SZVFW at [85] This approach is consistent with the approach taken in Bauer to appeals concerning s 97(1)(b) of the Evidence Act.

    In these circumstances, were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King.

    [110] R v Riley [2020] NSWCCA 283 at [108]-[110] (Bathurst CJ).

    [111] R v Riley [2020] NSWCCA 283 at [111]-[112] (Bathurst CJ).

16. However, after noting the preponderance of authority to the effect that appellate review of decisions made under s 138 did attract the principles of judicial restraint, Bathurst CJ declined to express a final view:[112]

    Even if it was necessary to do so I would have had some hesitation in stating these cases were wrongly decided. However, because I am of the view that the trial judge erred in the House v The King sense it is unnecessary to reach a final conclusion on this issue.

    [112] R v Riley [2020] NSWCCA 283 at [114].

17. Button and Wilson JJ also declined to express a concluded view on the issue, with the former suggesting that the use of the words “desirability” and “undesirability” in s 138, and the non-exhaustive nature of the list of matters to be taken into account, may be relevant in determining whether the question posed by the section admitted of only one legally correct answer.[113]

    [113] R v Riley [2020] NSWCCA 283 at [134]-[135] (Button J), [140] (Wilson J).

18. The issue was considered again by the New South Wales Court of Criminal Appeal in Mann v R.[114] After observing that the issue had been left open in Kadir v The Queen, Kirk JA summarised the views expressed by Bathurst CJ and Button J in R v Riley.[115]He noted Bathurst CJ’s references to R v Bauer, and to the binary nature of the determination required by s 138.

    [114] Mann v R [2023] NSWCCA 256.

    [115] Mann v R [2023] NSWCCA 256 at [15]-[17].

19. As to the former, Kirk JA said that “whether something has ‘significant probative value’ is a characterisation of factual matters in the context of a case, and does not involve weighing up multiple, incommensurable factors in the manner required by … s 138. There is no simple, direct analogy between the two provisions. If there had been, the High Court would likely not have avoided resolving the issue in Kadir.”[116]

    [116] Mann v R [2023] NSWCCA 256 at [18].

20. As to the latter, Kirk JA acknowledged that a decision which involves a binary choice (as opposed to a choice which involves settling on some point in a spectrum of possible outcomes) is more likely to be subject to the correctness standard of review.  But he added that there were nevertheless many binary choices to which House v The King applied including, for example, decisions to grant adjournments.[117]  His Honour quoted the following passage from an article by Thomas Prince:[118]

    Decisions posing a binary choice which are nevertheless discretionary usually involve a combination of the following factors: (1) the decision involves an assessment of a large number of relevant matters; (2) the relevant matters are incommensurable in the sense that there is no clear standard or principle by which the matters are to be weighed or assessed; (3) the decision concerns procedure rather than substantive rights; (4) if the decision involves the exercise of statutory power, the form of the statutory language used suggests that the primary judge has a choice as to the correct outcome (eg power to make decision as judge “thinks fit”); and (5) the decision is closely connected or analogous to another decision which is clearly discretionary.

    [117] Mann v R [2023] NSWCCA 256 at [19] (Kirk JA).

    [118] T Prince, ‘Recurring Issues in Civil Appeals – Part 1’ (2022) 96 ALJ 203 at 215 (citations omitted).

1. Kirk JA considered that the first three of these factors applied to the determination required by s 138, adding that the fourth and fifth arguably also applied.

2. Ultimately, however, Kirk JA declined to resolve the issue.[119]  The issue had not been explored in detail in argument, with both sides contending without contradiction that the standard of correctness applied.  As the issue was “complex, borderline and important”, he was reluctant to determine it unless it was necessary to do so.  It was not necessary to do so because, in his Honour’s view, a House v The King type error was established in any event.

   [119] Mann v R [2023] NSWCCA 256 at [21]-[22].

3. N Adams J and R A Hulme JA agreed with Kirk JA, including his decision not to determine the appropriate standard of appellate review.[120]

   [120] Mann v R [2023] NSWCCA 256 at [132]-[133].

4. Returning to the common law public policy ‘discretion’ to admit or reject evidence obtained by unlawful or improper conduct, I favour the view that it involves a decision that admits of only one legally permissible answer,[121] and hence that it falls to be reviewed on appeal by reference to the standard of correctness.

   [121] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [16] (Kiefel CJ, Gageler and Jagot JJ).

5. In support of this view, it is significant that the decision is one that requires a binary choice, rather than a choice between a range of potential outcomes.  Whilst decisions involving a binary choice may involve discretions which are subject to the principles of appellate restraint, there are some indications that the public policy discretion is not of this type.

6. The first indication is that decisions in relation to the admissibility of evidence are generally treated as involving an issue of law that admit of only one correct answer.  As mentioned, the High Court in R v Bauer held that this approach extends to a decision as to the admissibility of tendency evidence turning upon whether the evidence was of significant probative value.[122]  This is so despite the High Court’s acknowledgment that it is a decision that involves an evaluative assessment in respect of which reasonable minds might differ.

   [122] R v Bauer (2018) 266 CLR 56 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). See also R v Fleming (2017) 129 SASR 27 at [60] (Peek J, Nicholson J agreeing), taking an equivalent approach in relation to s 34P of the Evidence Act 1929 (SA).

7. The second indication is that although the exercise of the public policy discretion involves the weighing of a number of incommensurable considerations, those considerations are to be weighed by reference to the matters of competing public policy identified in Bunning v Cross and the other High Court decisions mentioned earlier in these reasons.  It has been said that the discretion involves matters of “high public policy”, including consideration of not only matters relating to the accused’s freedom from unlawful interference, the need to deter police from unlawful and improper conduct and the desirability of ensuring that those who commit crimes are brought to justice, but also matters that are fundamental to the administration of justice.  The matters fundamental to the administration of justice include avoiding any diminishment of judicial integrity through the appearance of curial approval or encouragement of police misconduct, and ensuring the credibility and legitimacy of the criminal trial process through decisions based upon all relevant evidence. 

8. As the High Court has emphasised, the public policy discretion is concerned primarily with these competing public policy interests, rather than the need to ensure fairness to a particular accused person in a particular trial or forensic context.[123]  In this respect, the public policy discretion may be contrasted with other decisions which involve the weighing of considerations anchored more closely in achieving fairness to the parties in case-specific circumstances, such as the unfairness discretion (in a criminal law context)[124] and confidentiality orders (in a civil context).[125]  The decision is perhaps more analogous to the weighing process inherent in a claim for public interest immunity, which has been held to attract the standard of correctness rather than the principles of appellate restraint.[126]

   [123] For example, Bunning v Cross (1978) 141 CLR 54 at 74-75 (Stephen and Aickin JJ, Barwick CJ agreeing).

   [124] See, for example, Sindoni v The Queen [2021] SASCA 138 at [29]-[34] (Livesey P, Doyle and Bleby JJA), not ultimately deciding the issue but referring to Van der Meer v The Queen (1988) 62 ALJR 656 at 660-661 (Mason CJ) (in favour of it being a true discretion) and Em v The Queen (2007) 232 CLR 67 at [55] (Gleeson CJ and Heydon J) (not deciding the issue).

   [125] Adelaide Brighton Cement Limited v Hallett Concrete Pty Ltd [2023] SASCA 101 at [138]-[139] (Livesey P, Doyle JA and Stanley AJA).

   [126] State of Victoria v Brazel (2008) 19 VR 553 at [37]-[39] (Maxwell P, Buchanan and Vincent JJA).

9. There is recent support for the significance of this second indication that the decision attracts the standard of correctness in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.[127]  As summarised earlier in these reasons, it was critical to the High Court’s approach in that case that the balancing of a variety of factors and considerations was by reference to the demands of the administration of justice rather than fairness to the parties.

   [127] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857.

10. All of that said, I find myself in a similar position to that which confronted Bathurst CJ in R v Riley and Kirk JA in Mann v R.  As the parties have acquiesced in a common approach of assuming that the principles of appellate restraint apply, I have been left without the assistance of submissions from the parties on the issue.  I am also concerned that the view I favour would represent a departure from the approach which courts in this jurisdiction have generally applied, albeit without any detailed consideration of the underlying issue of principle.  Whilst the trend of authority, and in particular the reasons of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore, suggests that the standard of correctness applies, I consider it appropriate to refrain from expressing a concluded view in circumstances where – for the reasons developed below – I am satisfied that the decision below was correct, and hence where it is not necessary to determine the appropriate standard of appellate view in order to decide this appeal.

    The appellant’s challenge to the refusal to exclude the search evidence

11. The trial judge’s reasons in support of his decision not to exclude the evidence obtained from the search of the Wingfield premises have been summarised earlier in these reasons.

12. His Honour accurately identified the competing public policy interests involved in his decision, and listed the considerations identified by the authorities as relevant to his decision.  No complaint has been made about the trial judge’s summary of these principles and considerations.

13. To the extent that the appellant challenged the trial judge’s approach, as opposed to the outcome of that approach, his focus was upon the trial judge’s characterisation of DBS Stirling’s unlawful conduct.

14. It will be recalled that the trial judge described her infringements as “minor to negligible” and at the “very lowest end of trespass”.  In so doing, his Honour noted that the meter box was not locked and had been positioned in an opening or aperture in the fence at the front of the property, and hence was designed for easy access by authorised persons.  Whilst DBS Stirling was not authorised to access the meter box, her infringement occurred whilst no-one appeared to be present and involved only a minor infringement of the property owner’s rights.  The judge described the trespass as an “opportunistic and mistaken act” by DBS Stirling, which represented a departure from her usual practice of executing a general search warrant before checking the meter box of a commercial premises.

15. I agree with this description and characterisation of DBS Stirling’s conduct.  I do not think the judge overlooked the fundamental importance of protecting a person’s property rights from unauthorised invasion by police.  Even having regard to this important principle, the infringement remained a very minor one.  Whilst constituting a civil trespass, the nature and extent of the invasion of the owner’s property rights was minor to negligible.  It was confined to opening an unlocked meter box which was accessible from the verge at the front of the property.  It was a commercial premises (rather than a person’s residence), and was apparently unoccupied at the time.  There is no reason to think that on either occasion it lasted any more than the short time necessary to observe the spinning disc, and there is no suggestion that the meter box was damaged or interfered with in any way.

16. There is no basis to challenge the judge’s description of the infringement as opportunistic or mistaken.  As the judge explained, DBS Stirling’s usual approach involved executing a general search warrant before inspecting the meter box of a commercial premises.  It would seem that the unusual location, and hence ready accessibility, of the meter box for the Wingfield premises may have lulled DBS Stirling into departing from this usual practice. 

17. The appellant emphasised that DBS Stirling checked the meter box twice, once on each occasion she attended the Wingfield premises, and hence committed two trespasses.  But the trial judge mentioned that there were two infringements on several occasions in his reasons.  And contrary to the appellant’s submissions, I do not think the second infringement was of a materially more serious nature.  Whilst it was perhaps not as spontaneous as the first infringement, it remained an opportunistic and mistaken act in the sense the judge described.  It was not suggested that between the two occasions she attended the premises DBS Stirling had reflected and realised that she was not authorised to open the meter box, yet decided to go ahead and do so for a second time anyway.

18. It is true that there were alternative means of potentially obtaining information about the electricity use at the Wingfield premises; for example, by making an enquiry of the Office of the Technical Regulator and, if appropriate, executing a general search warrant to inspect the meter box.  However, it appears that DBS Stirling was deflected from this alternative – which was her usual practice – by the unusually ready accessibility of the meter box from outside the property.

19. As the trial judge mentioned, it was also relevant in this context that there was no evidence that what occurred was encouraged or tolerated by those in higher authority in the police.

20. Turning to some of the other relevant considerations, the trial judge was right to emphasise the seriousness of the offending, both in terms of the criminality on the part of the accused (with the cultivation and trafficking in a large commercial quantity offences attracting maximum penalties of imprisonment for 15 years and life respectively), and in terms of the harm to individuals and the community.

21. Further, there is no doubt that the evidence obtained from the search was highly probative and of great importance in the trial.  The impropriety did not in any way affect the cogency of the evidence obtained from the search.

22. All things considered, I agree with the trial judge’s conclusion that the competing public policy considerations weighed in favour of receiving the evidence from the search rather than excluding it.  This conclusion is reinforced by the derivative nature of the evidence sought to be excluded.  Given that the search itself was lawful, receipt of the evidence did not carry any significant risk of curial approval or encouragement of DBS Stirling’s conduct in twice opening the electricity meter box.

23. 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

24. For the reasons set out, I would grant permission to appeal to the extent it is necessary, but dismiss the appeal.

25. DAVID JA:      I agree with the orders proposed by Doyle JA. 

26. 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.