[2024] SADC 2

Prosecution: R Counsel: MR J MEEGAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: S, DF Counsel: MR A CULSHAW - Solicitor: CALDICOTT & ISAACS Hearing Date/s: 07/12/2023, 11/12/2023 File No/s: DCCRM-22-1416 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v S, DF [2024] SADC 2 Reasons for Ruling of his Honour Judge Stretton 12 January 2024 CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES Acting on two Crime Stoppers reports from the public and an intelligence report that the accused was involved with outlaw motorcycles gangs and drug offending, and was currently selling handguns illegally, Police purported to form a suspicion on reasonable grounds under s 57(9) of the Firearms Act 2015 (SA) and searched his residential property. They did not locate firearms but did find drugs, whereupon police exercised a General Search Warrant to seize the drugs. The accused applied to exclude the evidence on the basis that the information police possessed was insufficient to base a suspicion on reasonable grounds justifying a search pursuant to either s 57(9) of the Firearms Act 2015 (SA) or s 67(4) of the Summary Offences Act 1953 (SA). HELD: 1. The material available to police did constitute reasonable grounds for suspicion pursuant to both the Firearms Act and the Summary Offences Act. 2. The search conducted by police pursuant to the Firearms Act was lawful. 3. The evidence obtained by way of the search was lawfully obtained and will be admitted at trial. Firearms Act 2015 (SA) s 57(9); Summary Offences Act 1953 (SA) s 67; Controlled Substances Act 1984 (SA) s 32(1), referred to. R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54, applied. Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; R v Swaffield (1998) 192 CLR 159; R v Rockford [2015] SASCFC 51; R v Golia [2017] SASCFC 61; R v Rogers (2011) 19 SASR 307; Driscoll v The Queen (1977) 137 CLR 517; Morris v R (1987) 163 CLR 454; Lee v R (1998) 195 CLR 594; R v Trabolsi [2018] SASCFC 57; R v Van Wyk [2018] SASCFC 138, considered. -- 1 of 12 -- -- 2 of 12 -- R v S, DF [2024] SADC 2 The charge 1 The accused is charged with trafficking a large commercial quantity of cannabis pursuant to s 32(1) of the Controlled Substances Act 1984 at his Mawson Lakes house on 13 October 2021. The prosecution case 2 The prosecution alleges that a large quantity of cannabis, together with further indicia of trafficking in the form of 22 separate vacuum sealed bags of the drug, empty bags containing drug residue, a vacuum seal machine, scales, a ‘tick list’ and $3625 in cash were located at the Mawson Lakes house owned and occupied by the accused on 13 October 2021. It is further alleged that the accused’s DNA and fingerprints were variously located on the bags containing the drug residue.1 The defence position 3 The accused has pled not guilty, and the matter is contested.2 This application 4 The defence application seeks an order that all evidence obtained by the search of the Mawson Lakes house be excluded in the exercise of the public policy (Bunning v Cross)3 discretion on the basis that the search was unlawful.4 The grounds of the application 5 The prosecution position is that police suspected on reasonable grounds that there was a firearm liable to seizure under s 57(9) Firearms Act 2015 (SA) (“Firearms Act”), or a firearm not being kept safely and securely in accordance with that Act, at the Mawson Lakes house. Hence the search was lawful. 6 The defence position was firstly, that while it was conceded that the relevant police officer held a suspicion that went beyond ‘idle wondering or speculation’, that the information in possession of that officer was inadequate to permit him to hold that suspicion on reasonable grounds pursuant to the Firearms Act and that consequently it was not held on reasonable grounds.5 7 Secondly, that there was no basis to form a reasonable suspicion that there would be evidence of drug offending at the accused’s house which would justify a 1 Prosecution Case Statement FDN 11. 2 Defence Case Statement FDN 21. 3 (1978) 141 CLR 54. 4 Interlocutory Application FDN 23. 5 T78-79. -- 3 of 12 -- [2024] SADC 2 2 search utilising the more general Summary Offences Act 1953 (SA) (“Summary Offences Act”) search powers. 8 The defence submits that what may really have been happening here is that the Firearms Act was being used to, in truth, conduct a search for drugs.6 The law 9 Section 57(9) of the Firearms Act provides that a police officer may enter and search any premises in which the police officer suspects on reasonable grounds - (a) that there is a firearm or ammunition, or a firearm part, sound moderator, prohibited firearm accessory, restricted firearm mechanism or licence, liable to seizure under the section; or (b) there is a firearm that has not been kept safely and securely and in accordance with the requirements of the Firearms Act. 10 A firearm is ‘liable to seizure under the section’ for a raft of reasons including if the police officer suspects on reasonable grounds that a firearm is unregistered, or any offence under the Firearms Act has been committed, or is being committed, with respect to the firearm.7 11 A further power to search is provided in the Summary Offences Act. 12 Section 67 of the Summary Offences Act authorises the Commissioner of Police to issue General Search Warrants to individual officers, and it is not in dispute that relevant police were in possession of a current General Search Warrant at the relevant time. 13 Section 67(4) provides that a police officer named in any such warrant may, at any time of the day or night, 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 and the officer may seize any such goods or things to be dealt with according to law. 14 Where a search of private premises is conducted without the actual or tacit authority of an owner or occupier, and without a specific legal authority such as provided in the aforementioned provisions of the Firearms Act and the Summary Offences Act,8 it will constitute at least a civil trespass, and in that sense any evidence obtained by such search will be regarded as unlawfully obtained. In that 6 T79. 7 Firearms Act 2015 (SA), s 57. 8 Or by other applicable legislation or the common law. -- 4 of 12 -- [2024] SADC 2 3 circumstance, the court has a discretion to exclude that evidence, in accordance with well recognized principles that need not be repeated at this point.9 The evidence 15 It was agreed that for the purposes of this application the court may have regard to the whole of the filed evidence, including the filed statements of Detective Sergeant Webber, the police officer who, on the prosecution case, formed the relevant belief to justify a search pursuant to the Firearms Act. It was also agreed that in so doing, the defence was not accepting the truth of the officer’s statements, but rather facilitating that evidence efficiently being placed before the court.10 16 Detective Sergeant Webber gave evidence by affirmation. No other witnesses were called. 17 Detective Sergeant Webber gave evidence that in October 2021 he was stationed at Northern District Volume Crime Section, which focused primarily on drugs, firearms and what police term ‘volume offences’ like break-ins to houses and cars, and stolen motor vehicles.11 18 Detective Sergeant Webber gave evidence that he was on duty on 13 October 2021, and that he searched the Mawson Lakes property in question pursuant to s57 of the Firearms Act. He gave evidence, referencing his 1 December 2023 statement, as to the suspicions he held in relation to those premises. 19 Detective Sergeant Webber explained that a part of his role was to regularly assess Crime Stoppers reports; essentially information, submissions and tip-offs received from members of the public where those members of the public suspect criminal activity that requires police assessment and investigation.12 He would review Northern District Crime Stoppers information for the previous 24 to 48 hours and make an assessment of whether anything needed urgent attention, such as firearms information.13 20 Detective Sergeant Webber gave evidence that on 13 October 2021 he received a Crime Stoppers report that had been allocated to the Northern District Volume Crime Section. The report was that a person with the accused’s first name was selling handguns and had attempted to sell a person a handgun. Further information suggested that that same person owned a Porsche vehicle with the registration ‘Red Devil’ or similar and was described as ‘short and fat’.14 The 9 R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; R v Swaffield (1998) 192 CLR 159; R v Rockford [2015] SASCFC 51; R v Golja [2017] SASCFC 61. 10 T2. 11 T5. 12 T6-8. 13 T8-9. 14 T9-10. -- 5 of 12 -- [2024] SADC 2 4 information included that firearms were seen in the motor vehicle which police investigations noted was registered to the accused’s Mawson lakes address.15 21 The information received by Crime Stoppers also included a phone number for the person who was alleged to be selling handguns. Police then performed a ‘subscriber check’ to ascertain who was registered as the owner of that phone number, and it came back as the accused. That subscriber check gave the accused’s address as a different Mawson Lakes address to the address ultimately searched. However, further police checks of the accused’s name on both the Motor Vehicle and Drivers’ License registration systems, and on further police systems, identified the Mawson Lakes house as the accused’s current home address. 22 The Motor Vehicle registration system also indicated that the accused owned a Porsche Cayman with the registration ‘Red 23’. Police systems also indicated that the accused matched the physical description given by the caller in the Crime Stoppers report.16 23 Detective Sergeant Webber gave evidence that he also had access to a Crime Stoppers report from two months earlier, August 2021, that the accused was allegedly involved with a named outlaw motorcycle gang, which he said bolstered his suspicions of the accused’s potential involvement in firearms offences. Information the caller provided including as to the accused’s wife and daughter caused Detective Sergeant Webber to believe that the caller had an intimate firsthand knowledge of what they were conveying about the accused’s involvement.17 24 Other aspects of the two Crime Stoppers reports, such as different spellings of the accused’s name caused Detective Sergeant Webber to believe that the two reports were from two different people, and the fact that information had now been received from two different people reporting on alleged criminal activity by the accused ‘bolstered (his) suspicion of (the accused’s) involvement in criminal activity overall’ in that, in his experience, such information coming from two separate sources lessened the possibility that the information was incorrect or malicious.18 25 Detective Sergeant Webber gave evidence that he also then reviewed a 27 September 2021 police intelligence report which contained information from a SAPOL intelligence source that, in the immediately preceding days, the accused was setting up cannabis grow houses.19 The information had been assessed by police as B2 on the SAPOL intelligence reliability scale of A-E and 1-5, indicating 15 T28. 16 T15. 17 T18-19. 18 T19. 19 T21. -- 6 of 12 -- [2024] SADC 2 5 the information was ‘mostly reliable’ and that it was information personally known to the source who had provided the information to police.20 26 Detective Sergeant Webber gave evidence that at that stage he had three separate intelligence reports over a period of two months that all provided information indicating the accused’s involvement in illicit activity. Detective Sergeant Webber gave evidence that he had significant experience in investigating organized crime, in particular serious firearms and drug matters, and that in his experience drugs and firearms often went hand in hand. He outlined a number of ways that was often the case, in particular that guns have significant illicit value to those involved in organized crime and drug trafficking, for example illicit drugs had considerable value which required protection.21 27 Detective Sergeant Webber gave evidence that he also then reviewed the accused’s criminal history and noted that he had a past history of drug offending in the form of cannabis cultivation.22 Further, he noted that the accused did not hold a firearms license (authorizing his ownership or possession of a firearm), nor indeed would any form of firearms license justify selling handguns at the casino as alleged in the Crime Stoppers report.23 28 Detective Sergeant Webber’s belief that the Mawson Lakes property was occupied by the accused was further bolstered when police attended the address on 13 October 2021 and noted another vehicle registered to the accused parked at the front of the house. Detective Sergeant Webber assessed that the firearms would have been unlikely to have been left in any of the accused’s vehicles for any extended period of time and even if they were, that motor vehicle was likely to be at the address as well.24 29 Detective Sergeant Webber gave evidence that as a result of all the information he had available and had considered, he suspected on reasonable grounds that there may be a firearm or firearms at the accused’s home address, the Mawson Lakes property.25 Detective Sergeant Webber said that on the basis of the intelligence he had, he would have been satisfied to utilise his General Search Warrant in relation to the allegations of drug activity and drug trafficking, but because his primary concern was the information relating to handguns he decided that the more appropriate Act to utilise was the Firearms Act.26 30 Detective Sergeant Webber gave evidence that he then briefed other police, and together with those officers and a police dog trained in firearms detection 20 T24. 21 T26 22 T26. 23 T27. 24 T28. 25 T28. 26 T28. -- 7 of 12 -- [2024] SADC 2 6 attended the Mawson Lakes house, conducted the search, and allegedly located the property in question.27 31 Detective Sergeant Webber was cross examined in detail as to these matters, the information he purported to rely on, the documentary material he had access to, whether he had a belief and if so as to what, and most particularly, matters surrounding whether this was a genuine search pursuant to the Firearms Act or perhaps a veiled search for drugs under the guise of a Firearms Act search. Defence counsel made a range of suggestions to Detective Sergeant Webber. For brevity I do not set the cross examination out in detail, however it has all been closely considered, particularly in light of the defence submissions and the issues to be determined. 32 Some aspects highlighted by defence counsel in cross examination included that the accused had no prior convictions for firearms offending.28 In relation to questions about exactly what he suspected he would find, Detective Sergeant Webber said that based on all the intelligence he had, he suspected that police would find handguns at the property.29 33 In answer to questions in cross examination Detective Sergeant Webber expanded on why he thought use of his General Search Warrant would have been justified in response to the specifics of the drug information he had been provided with, which included that the accused had been involved in cannabis cultivation and the supply of methamphetamine precursors. He further responded that if he had proceeded on that basis, the sort of evidence he thought he might find could have been hydroponic equipment, receipts for purchases of items or drugs themselves.30 34 He readily conceded that although he proceeded under the Firearms Act, it would be naïve not to have considered the possibility that other items might be in the house. When those items were observed, he exercised his General Search Warrant at that stage in relation to those items.31 He disagreed with defence counsel’s suggestion that ‘this search was really about drugs and not firearms’.32 35 Defence counsel put an earlier 2019 Crime Stoppers report to Detective Sergeant Webber that alleged that at a time some two years prior to the search, information had been received that the accused had been selling handguns at the Casino for $5000, but that the casino said they had reviewed their CCTV and could not find support for the allegation. Detective Sergeant Webber said that while he did read it, after he saw the date and considered that the information was two and a half years old, he gave it very little consideration and it did not influence him 27 T28-30. 28 T36. 29 T41. 30 T43. 31 T45-46. 32 T46. -- 8 of 12 -- [2024] SADC 2 7 either way in relation to the new information, nor form any part of his suspicion.33 Later, in re-examination, Detective Sergeant Webber was asked to explain what he made of the 2019 Crime Stoppers report information itself, and he said that at the time in 2021 he assessed the information to have undetermined veracity.34 36 In answer to further questions in cross-examination, Detective Sergeant Webber explained that the drug intelligence was relevant to his suspicion about the presence of firearms because in his experience drugs and firearms would often go hand in hand.35 37 Detective Sergeant Webber variously responded to questions as to why some aspects of his suspicion had not been included in his statements, by saying that he had included his primary considerations rather than including every single suspicion.36 38 No other witnesses or evidence apart from the 2019 Crime Stoppers report was called by the defence.37 Analysis 39 The court has had close regard to and has been assisted by counsel’s careful written and oral submissions. Whilst not all are set out, all have been carefully reviewed and considered. 40 For the search to be lawful, the searching police officer must hold a suspicion based on reasonable grounds pursuant to s 57(9) of the Firearms Act. However, even if a searching police officer did not hold that suspicion on objectively reasonable grounds, if the officer also had a suspicion that satisfied the criteria to search pursuant to s 67 of the Summary Offences Act, then a search will be lawful even if the officer at the time intended and purported to proceed pursuant to the Firearms Act.38 41 Detective Sergeant Webber is the officer who purported to hold the relevant suspicion on reasonable grounds. His evidence was disputed, in that the defence submits that there were no reasonable grounds for suspicion so as to justify a search either for firearms pursuant to the Firearms Act or more generally for evidence of drug offending pursuant to the Summary Offences Act. Further, that the Firearms Act may have been being used as a deliberate subterfuge for what was, in reality, an entirely drug focused search. 33 T51-53. Exhibit VDD1. 34 T74. 35 T65. 36 T66. 37 The Crime Stoppers report was tendered by the defence as an exhibit on the application and marked VDD1. 38 R v Rogers (2011) 19 SASR 307. -- 9 of 12 -- [2024] SADC 2 8 42 Accordingly, a close assessment of Detective Sergeant Webber’s evidence is required. 43 Detective Sergeant Webber gave evidence in a clear and forthright way. His evidence was consistent throughout. In relation to the admitted fact that he did not include all the detail of his suspicions in his statement on the topic, which he later gave in evidence, the court assesses his evidence in accordance with the well understood principles applicable to suggested prior inconsistent statements.39 He admitted the statement, his explanation for its more concise content was clear and logical, and the court accepts his explanation. After due consideration, the suggested inconsistency does not adversely affect the court’s assessment of his honesty and reliability. 44 Detective Sergeant Webber’s evidence that the search was genuinely intended to be a firearms search pursuant to the Firearms Act is supported by the fact that police attended and commenced the search with a firearms detection dog, not a drug detection dog. A drug detection dog was only deployed after drugs had been found. 45 At the end of the day, for the purposes of this application, the Court finds that Detective Sergeant Webber was an honest and reliable witness, and that his evidence concerning his suspicion, his actions and the search should be accepted on the balance of probabilities. 46 Accordingly, the court finds that immediately prior to the search, Detective Sergeant Webber had three separate intelligence reports from the immediately preceding months, as described in some detail earlier in these reasons. He reasonably believed based on aspects of the reports that these were three independent sources. In short, it comprised information received from the public which had factors indicating first-hand knowledge of the accused and his activities, and further intelligence information assessed as generally reliable. 47 The primary information from the most recent report was that a person with the accused’s first name was selling handguns and had attempted to sell a person a handgun. The informant provided the person’s phone number and checks immediately revealed it was the accused’s phone number. Further information suggested that that same person owned a Porsche vehicle with the registration ‘Red Devil’ or similar and was described as ‘short and fat’. The Motor Vehicle registration system indicated that the accused owned a Porsche Cayman with the registration ‘Red 23’. The information included that firearms were seen in the motor vehicle which police investigations noted was registered to the accused’s Mawson lakes address.40 Police systems also indicated that the accused matched the physical description given by the caller. Police checks of the accused’s name on both the Motor Vehicle and Drivers’ License registration systems, and on 39 Driscoll v The Queen (1977) 137 CLR 517; Morris v R (1987) 163 CLR 454; Lee v R (1998) 195 CLR 594; R v Trabolsi [2018] SASCFC 57; R v Van Wyk [2018] SASCFC 138. 40 T28. -- 10 of 12 -- [2024] SADC 2 9 further police systems, identified the Mawson Lakes house as the accused’s current home address. 48 Detective Sergeant Webber also had the August 2021 Crime Stoppers Report alleging that the accused was involved with illicit activity with a named outlaw motorcycle gang, and a 27 September 2021 intelligence report assessed as ‘mostly reliable’ that the accused was also involved with further criminal activity in terms of setting up cannabis grow houses. In the officer’s long experience in investigating drug offending and organized crime, those are both commonly associated with firearms, in his words they ‘went hand in hand’. This information that the accused was involved with an outlaw motorcycle gang and drug offending accordingly in the court’s view legitimately bolstered the reasonableness of his suspicion that the primary information in the most recent Crime Stoppers report that the accused was selling handguns, had tried to sell a person a handgun, and that firearms had been seen in his motor vehicle, was in fact true. 49 At the end of the day, having taken everything into account, the court finds that Detective Sergeant Webber held the suspicion he said he did, on the grounds that he said he had, and conducted the search on the basis that he deposed. 50 In short, Detective Sergeant Webber had information that the accused had recent criminal involvement with an outlaw motorcycle gang, and was also recently involved in drug offending, both of which were commonly associated with firearms. Against that backdrop he had very recent information that the accused was in the business of selling guns, had guns in his car, and had tried to sell someone a gun. 51 In those circumstances, the court finds that the officer did form, and it was entirely reasonable for the officer to form, a suspicion within the terms of section 57(9) of the Firearms Act, to search premises owned and occupied by the accused and outside of which the accused’s car was parked at the time. 52 For the same reasons, the information would have also formed an entirely reasonable basis to form the requisite suspicion pursuant to the Summary Offences Act to conduct a search of the accused’s premises in relation to either or both drug and firearms offending. 53 If the court is wrong about that, and if the suspicions held by the officer were ultimately adjudged not to be objectively sufficient, a discretion to exclude the evidence would arise. The discretion would be exercised in accordance with the principles set out by the High Court in R v Ireland41 and Bunning v Cross42 and 41 R v Ireland (1970) 126 CLR 321. 42 Bunning v Cross (1978) 141 CLR 54. -- 11 of 12 -- [2024] SADC 2 10 discussed in many subsequent cases.43 Those basic principles are well understood and need not be the subject of lengthy discussion in a District Court ruling. 54 In all the circumstances, the charged offence is a very serious one, the evidence has a high degree of relevance without which the matter could not proceed, the illegality would not have been deliberate, did not reflect any institutional or procedural malpractice within the police force requiring condemnation, has not in any way affected the cogency of the evidence, and accordingly, the circumstances are not such that would justify the exercise of the discretion to exclude. Conclusion 1. The material available to police did constitute reasonable grounds for suspicion pursuant to both the Firearms Act and the Summary Offences Act. 2. The search conducted by police pursuant to the Firearms Act was lawful. 3. The evidence obtained by way of the search was lawfully obtained and will be admitted at trial. 43 Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; R v Swaffield (1998) 192 CLR 159; R v Rockford [2015] SASCFC 51; R v Golja [2017] SASCFC 61. -- 12 of 12 --