DPP (CTH) v GEE & THALLER No. SCCRM-95-99 Judgment No. S361 [1999] SASC 361

MULLIGHAN J The Commonwealth Director of Public Prosecutions ("the Director") has applied to the Full Court to exercise its powers under s350(2) of the Criminal Law Consolidation Act 1935 to require a Judge of the District Court to reserve a relevant question for consideration and determination by the Full Court.

The respondents, Robert Gordon Pollybank Gee and Hans Adalbert Thaller, are charged on the Information of the Director with nine counts of defrauding the Commonwealth of income tax, contrary to s29D and s5 of the Crimes Act 1914 (Cth). The offences are alleged to have occurred during the period from March 1994 to February 1996. On 10th December 1998 the respondents were arraigned in the District Court before a learned Judge and pleaded not guilty to each of the charges.

The respondents objected to the reception into evidence of documents obtained by police during the course of a search of premises occupied by Thaller at 7 Frederick Street, Cavan on 1st February 1996. It was alleged by them that a police officer, Detective Sergeant Cunningham, who conducted the search, had no power to hold or execute a general search warrant pursuant to which he purported to act.

The learned Judge proceeded to deal with the admissibility of the evidence before a jury was empanelled pursuant to s285A of the Act.

He received evidence in the form of documents on the voir dire. This hearing was adjourned and on 31st March 1999 amended notices pursuant to Rule 9 of the District Court Rules 1992 were filed by the respondents. They sought orders that all items seized by police in the search of the premises on 1st February 1996 be excluded from evidence. The grounds of the application are:

1 That the search was illegal in that the police officers purported to execute a General Search Warrant pursuant to s67 of the Summary Offences Act 1953 when there was no basis to do so because:

1.1 Detective Cunningham had no power to execute the warrant at that time because he had been seconded to the National Crime Authority ("NCA") and was acting in his capacity as an investigator on a special investigation.

1.2 He did not have the requisite state of mind to justify the execution of the warrant pursuant to s67 of the Summary Offences Act.

2 The search of the premises by Detective Cunningham was illegal because there was no power to issue such a warrant to Detective Cunningham.

3 The Deputy Commissioner of Police who purported to issue the Warrant did not avert his mind to the necessary criteria.

4 Detective Cunningham had no power to hold or execute a general search warrant at a time when he was seconded to the National Crime Authority.

Detective Cunningham is a member of the South Australia Police. On 19th September 1995 a general search warrant was issued to him by Deputy Commissioner Hurley pursuant to s67 of the Summary Offences Act 1953. It was re-issued on 1st January 1996. There is no suggestion that the Commissioner of Police was not available at the time. However, the learned Judge concluded that there had been a valid delegation of this power by the Commissioner to the Deputy Commissioner: see s53 of the Police Act 1952. This Act is now repealed and replaced by the Police Act 1998. Section 67 of the Summary Offences Act provides that the Commissioner of Police may issue general search warrants to such members of the police force as he thinks fit. Each warrant must be in the form in the schedule to the Act and remains in force for six months or such shorter period if specified in the warrant subject to prior revocation by the Commissioner. The powers of a holder of such a warrant are set out in s67(4) of that Act and in the warrant itself. It is unnecessary to repeat them for present purposes. It is sufficient to say that they empower the police officer who is the holder of the warrant, with assistants, to enter into, break open and search any house, building, premises or place in given circumstances and to seize any goods or things that may afford evidence as to the commission of any offence. S19B(3) of the Police Act 1952 provides:

"Unless the Commissioner other authorises by instrument in writing, where a person who is a member of the police force is seconded to a position outside the police force, all powers and authorities vested in that person by or under this Act or any other Act or law as a member of the police force or constable are suspended for the period of the secondment."

The learned Judge found that Detective Cunningham was seconded from the South Australia Police to the National Crime Authority from 24th April 1995 until 10th October 1996, although Inspector Pit had made a statement, that the period of the secondment was from 27th April 1995 to 13th October 1996. He applied the definition in the New Shorter Oxford English Dictionary of "secondment" which is "(a period of) temporary transfer to another position or employment". In the relevant Commonwealth and State Legislation, the expression used is "make available": see s49(c) and s58(1)(b) of the National Crime Authority Act 1984 (Cth) and s28(b) of the National Crime Authority (State Provisions) Act 1984. The learned Judge held that the expression in that legislation is synonymous with "secondment". There is an issue as to whether there was secondment during that period. The Director contends that the learned Judge erred in that conclusion. He argues that "second[ment] to a position outside the police force" within s19B(3) means a temporary transfer to employment which did not occur with respect to Detective Cunningham. It is necessary to briefly consider the circumstances of the employment of Detective Cunningham after the placement, to use a neutral term.

During the period of the placement, Detective Cunningham remained a South Australia Police Officer and was subject to the usual conditions of employment with the South Australia Police, including the maintenance of his seniority and his various leave entitlements. He remained subject to the code of conduct and discipline and continued to be paid by the South Australia Police. The National Crime Authority reimbursed the South Australia Police for his salary but not his leave loading, long service leave, employer's superannuation liability and workcover levy which remained the responsibility of the South Australia Police. He was entitled to apply for vacancies within the South Australia Police as advertised from time to time in the South Australia Police Gazette and was continually recorded within the system as a member of the South Australia Police. Detective Cunningham went to an operational position at the National Crime Authority for the purpose of investigating state offences in the context of references from the Authority.

On 22nd March 1989 the Commonwealth of Australia and the State of South Australia entered into an arrangement in writing which provided that the relevant Minister of the Crown for the State of South Australia may make available officers and employees of the State to perform services for the NCA. Also an agreement between the Chairman of the NCA and, inter alia, the Commissioner of the South Australia Police provided for a similar arrangement. It was pursuant to this arrangement that Detective Cunningham and other police officers were placed with the National Crime Authority. It had been the practice that when members of the South Australia Police were placed with the Authority, written authorisations pursuant to s19B(3) were given to them. Fifteen were granted on 22nd April 1993, and one each on 16th July 1993, and 6th September 1993 and 8th October 1993. After that date the practice of issuing such an authority when the police officer was placed with the NCA ceased. The form of the authority was:

"To [the rank, name and number of the police officer]: 'I hereby authorise pursuant to Section 19b(3) [sic] Police Act, 1952 as amended, that all powers and authorities vested in you by or under the Police Act aforesaid, or any other Act or law as a member of the South Australia Police Force, shall be retained by you for the entire period of your secondment to a position outside the South Australia Police Force.' ([s.g.] P.M. Hurley) ............... Acting Commissioner of Police."

No such authority was given to Detective Cunningham. However, on 16th May 1995 Detective Cunningham wrote to Deputy Commissioner Hurley informing him of his having been seconded to the NCA on 27th April 1995 and of his responsibilities at the NCA in the role of Chief Investigator. His duties included supervising Detectives and managing certain criminal investigations. Prior to that time, he had been working in a section of the South Australia Police which did not require the use of a general search warrant. He informed the Deputy Commissioner that, prior to being seconded to the NCA, he had requested being issued with a general search warrant and formally made that request again. Deputy Commissioner Hurley endorsed his approval of the request in writing on the document. It is the contention of the Director that this action taken by the Deputy Commissioner was, including the written endorsement, sufficient for the purposes of s19B(3) of the Police Act.

It appears that due to an oversight, the warrant was not issued until much later, on the 19th September 1995. Mr Ganley is the Regional Director of the Adelaide office of the NCA. In a statement made by him which was before the learned Judge, he said that it was expected and understood by the NCA that the person occupying the position of Chief Investigator, if a South Australia Police Officer, would have all the powers available to such a police officer for use in NCA investigations and, in particular, a general search warrant. A minute dated 23rd April 1993, signed by Mr Ganley, reveals that he sent the authorities pursuant to s19B(3) issued to the other police officers, as has been mentioned, to another officer of the NCA, thereby revealing that he was aware of the section. Of course, the earlier procedure of giving authority in writing to police officers under s19B(3), also previously mentioned, reveals that the Deputy Commissioner and other senior police were aware of the section. The evidence before the learned Judge, as far as I can tell, does not reveal why the practice ceased. Mr Ganley further stated that if he had known that Detective Cunningham did not have such an authority, it would have been obtained promptly.

At no time was Detective Cunningham aware of the provisions of s19B(3) of the Police Act. Had he been aware of that provision, he would have obtained the authority promptly. He told the learned Judge that at the time of the search of the premises and seizure of the documents, he believed that although he had been seconded to the NCA, he had retained all of his powers as a South Australia Police Officer. He also told the learned Judge that it had been decided to use the powers of a general search warrant once the search and seizure was undertaken as it was considered that they were the most appropriate powers.

The learned Judge concluded that as Detective Cunningham had been seconded to the NCA and thereby gone "to a position outside the police force" and was therefore not in a position to receive the general search warrant purportedly issued to him on 19th September 1995 and renewed on 1st January 1996. The learned Judge went on to say:

"It is not possible that the receipt by him, in such circumstances, of the general search warrant, could in some way fill the void of authority which by then had been created by his earlier secondment in the absence of compliance with s19B(3) of the Police Act."

The trial was then adjourned to 18th May 1999. On that day the prosecutor, Mr Griffin, asked the learned Judge to reconsider his decision in light of further evidence which was available. The learned Judge received the memorandum from Detective Cunningham to the Deputy Commissioner Hurley and his approval for the issue of the warrant to which reference has been made. It seems that Deputy Commissioner Hurley had previously given evidence before the learned Judge and had said that he was aware that Detective Cunningham had been in a non-operational position in the firearms squad in the South Australia Police. He had returned to operational duty so that he could be seconded to the NCA. The Deputy Commissioner told the learned Judge that he was aware of the secondment and that Detective Cunningham would require his powers as a police officer, including a general search warrant. He also said that he was aware that Detective Cunningham was in an operational position and had issued the general search warrant to him for that purpose. Mr Griffin, who appeared for the Director before the learned Judge, contended that the combination of those matters should lead to the conclusion that, for all intents and purposes, there had been constructive compliance with s19B(3).

The learned Judge rejected this argument and declined to reconsider his earlier decision. He held that when Detective Cunningham undertook the search of the premises and the seizing of documents, he did not have a general search warrant because his powers and authorities had been suspended, there not having been authorisation pursuant to s19B(3) and consequently he was acting illegally and the evidence was obtained unlawfully. He went on to say that the only way in which the evidence could be admitted was by the exercise of his discretion to permit the prosecutor to lead it. Strictly speaking, that approach is an error. The evidence, assuming relevance to facts in issue, was admissible and the prosecutor was at liberty to lead it unless it was excluded in the exercise of the discretion of the learned Judge on what is now commonly referred to as public policy grounds.

The learned Judge considered the exercise of his discretion. He had regard to the following matters. Mr Ganley was aware of s19B(3) because he had received the various authorities with respect to other police officers in 1993. Had it been appreciated that the authority had not been given to Detective Cunningham, an authority would have been given by Deputy Commissioner Hurley. The omission was due to an administrative oversight. There was no deliberate failure to comply with s19B(3).

Although he did not say so, I expect that the learned Judge would have concluded that Detective Cunningham did have what purported to be, and what he genuinely believed to be, a validly-issued general search warrant which he had specifically requested.

The learned Judge declined to admit the evidence. He said:

"It has long been recognised that the Courts will not sanction the invasion of a person's privacy and the seizure of their property unless such actions are provided for by legislation. Legislation has sought to maintain the balance between 'an effective criminal justice system and the need to protect the individual from arbitrary invasion of his privacy and property': George v Rockett [1990] HCA 26; (1990) 170 CLR 104 @ 110."

He then referred to the dicta of Jacobs J at p369 and Cox J at p389 in Tran Nominees v Scheffler & Anor (1986) 42 SASR 361 where their Honours, in separate judgments, both stressed the significance of the invasion of the liberty of the subject by the invasion of the house or business premises and that statutory powers to do so must be construed strictly. Cox J went on to say that:

"Nevertheless, the courts have always insisted that those who issue or execute a warrant of this sort should comply strictly with the statutory requirements. That includes the limitations, expressed or implied, upon the power to issue the warrant. The issuing authority must take care to ensure that all conditions precedent to issue have been met. If they have not, it is very likely that the warrant will be, at the least, seriously defective."

The learned Judge considered that the decision in that case was analogous to the circumstances of the present case because the proper authority did not ensure that a mandatory condition precedent to Detective Cunningham being able to "become a proper holder of a valid general search warrant was met". He said that he declined to exercise his discretion so as to enable the evidence to be used at the trial.

As has been mentioned, the learned Judge did apply the wrong test. The evidence obtained at the search was admissible. The discretion to be exercised was as to whether the evidence should be excluded on public policy grounds, not whether it should be admitted. On appeal Mr Kourakis QC, for the Director, contended that this error, repeated in the reasons for the ruling, reveals that the learned Judge had wrongly considered the onus to be on the prosecution not upon the respondents.

The learned Judge was requested by the prosecutor to reserve for consideration and determination by the Full Court the question of whether the search and seizure conducted by Detective Cunningham was illegal and, if so, whether, in the circumstances, the learned Judge erred in the exercise of his discretion which, as has been seen, had the consequence of excluding the evidence obtained at the search. The learned Judge could have reserved these questions for the Full Court pursuant to s350(1) of the Criminal Law Consolidation Act 1935. We are now asked to require him to reserve relevant questions for consideration and determination by the Full Court. The relevant provisions of this legislation are:

"350(a1) In this section - 'relevant question' means - (a) a question of law; or (b) to the extent that it does not constitute a question of law - a question about how a judicial discretion should be exercise or whether a judicial discretion has been properly exercised. (1) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue - (a) antecedent to trial; or (b) relevant to the trial or sentencing of the defendant, and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court. (2) A relevant question must be reserved for consideration and determination by the Full Court if - (a) the Full Court so requires (on an application under this section or under another provision of this Part); or (b) the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court. (3) Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant. (4) [Not Applicable]."

The Chairperson of the NCA and the Commissioner of the South Australia Police entered into an agreement in writing some time after the Arrangement. The copy before us is not dated. This Agreement provides for the "secondment" of police officers from the South Australia Police to the NCA and uses that word. It provides for the selection of such police officers for that purpose and the conditions of the "secondment". The following matters are of significance and they do not all point one way. Pursuant to s4 of the National Crime Authority Act 1984 (Cth), the placed police officers are defined as "members of the staff of the Authority" and have all the rights and responsibilities of a member of staff of the NCA. Their conditions of employment are to be governed by the relevant Industrial Award of the South Australia Police. If the Award is silent in relation to a matter which affects the officers' placement with the Authority, then the Public Service Act 1922 (Cth) is to provide guidance to the NCA. South Australia Police Officers who are so placed are not subject to the day-to-day management of the South Australia Police. Any training specifically required for placement with the NCA is to be provided at no cost to the South Australia Police and the training courses and facilities will be available to the NCA for the training of members of staff of the NCA, where appropriate, on a cost recovery basis. The police officers so placed remain subject to the discipline and the internal investigation procedures of the South Australia police. Complaints against them are to be forwarded to the Chairperson of the NCA in the first place and if formal investigation is warranted, they are to be forwarded to the South Australia Police.

I now mentioned a further contention of the Director. If the authority in writing had not been given pursuant to s19B(3), the section had no operation unless there had been a temporary transfer of employment outside the South Australia police force and the arrangements, which have been mentioned, indicate the contrary. The evidence before the learned Judge disclosed continued employment with the South Australia police but an arrangement whereby Detective Cunningham could be used in day-to-day operations conducted by the NCA.

Another contention is that under s19B(3), the powers of a police officer are suspended upon secondment. Any powers which he had, including those pursuant to the general search warrant at the time of the secondment, were suspended. However, when he was issued with a general search warrant on 19th September 1995, which was renewed on 1st January 1996, that power was specifically given to him by the Deputy Commissioner in knowledge of the secondment and of the duties which he was undertaking at the NCA. In consequence, he could exercise those powers, in the circumstances, regardless of s19B(3).

These issues about whether Detective Cunningham had been seconded to the NCA at relevant times and whether he had the powers pursuant to a general search warrant, are questions of law.

The Director also challenges about the manner in which the learned Judge purported to exercise his discretion on the assumption that his arguments or questions of law should fail. Mr Kourakis argued that upon the exercise of such a discretion, assuming that it is being exercised properly, the following matters are important. First, the Deputy Commissioner had taken the view that Detective Cunningham should have the powers of a general search warrant while at the NCA. If an authorisation in writing under s19B(3) was required and thought by the Deputy Commissioner to be required, it would have been granted promptly. The oversight, if properly so-called, was entirely administrative. The Deputy Commissioner had reached a decision on proper grounds and upon considering the information which was before him. The error of approach by the learned Judge was, in fact, a misunderstanding of the onus of proof. If the correct onus had been applied, the respondents could not have established that there were sound reasons to exercise the public policy discretion in their favour.

Recently, the Full Court handed down its decision in Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260. Indeed, we adjourned the hearing of this application after hearing argument on the merits until the reasons for the decisions were available. In that application, the Full court had to consider, inter alia, the circumstances in which the Full Court should require a trial Judge to reserve questions upon the application of the prosecution. The Full Court decided that upon enacting s350 of the Criminal Law Consolidation Act, Parliament intended to allow a criminal trial to be interrupted, and to allow a question to be reserved that might deprive a person of the prospect of an acquittal: p5. However, the Full Court held that the Court has a general discretion as to whether to require a trial Judge to reserve questions pursuant to the section: p7. Doyle CJ, with whom the other members of the Court agreed, said that the "discretion is to be exercised bearing in mind the purpose of s350, the context in which the power operates, the circumstances of the particular case, the interests of justice and any relevant matters for consideration that emerge from the terms of s350". He went on to say at pp7-8:

"As is the case with most general discretions, it is not possible or even useful to attempt to state exhaustively, and in the abstract, all of the matters to be considered in the exercise of such a general discretion. What I have just said is no more than an attempt to indicate the general nature of the matters to be considered. The purpose of s350 is to enable a relevant question to be determined by the Full Court. But for that section, a relevant question could be determined in criminal proceedings and be incapable of review unless there is a conviction and then an appeal by the accused person. That is so because there can be no appeal from an acquittal. The section contemplates that a relevant question may be considered and determined by the Full Court before the trial proper begins, while it is in progress or after an acquittal. The fact that a relevant question can be considered and determined before a verdict has been given indicates that Parliament contemplated a relevant question being determined at a time that would enable the Full Court decision to guide a judge in the making of a decision and, I consider, to reconsider a decision already made. However, for reasons that I will indicate shortly, there are strong reasons why the power conferred by s350(2)(a) should be exercised with restraint when its exercise will interrupt a trial, or is sought with a view to having a trial judge review a decision already made."

He went on to say that as Parliament had not conferred upon the prosecution a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s350 mainly in relation to relevant questions that raise an important question of law on a question of law of general application, and not that the section should not be used to provide, as a matter of routine, a process for reviewing decisions by trial Judges made in the ordinary course of trying a case, which could confer on the prosecution something like a right of appeal against acquittal. He said that the terms upon which the power is conferred suggest that Parliament envisaged it usually being exercised when there is a particular reason to do so: p8. He went on to say at p8:

"The fact that a relevant question involves an important question of law or a question of law of general application, would be a reason (not necessarily decisive) for doing so. That is not to say that there will not be cases in which an aspect of the case itself, or the impact of a decision upon a case, is a reason for the exercise of the powers under s350. But I consider that the usual basis for the exercise of the power will be the importance of the relevant question."

These observations were made in the context of an application for reserving a question before verdict.

The Chief Justice then made observations as to the exercise of the power of the Full court. He pointed out that it had to be exercised in the context of a criminal trial. He said that generally throughout Australia there is no power to entertain an appeal against acquittal and that the exercise of the power with a view to having a judge reverse a decision that will, or is likely to, lead to an acquittal of the accused "entrenches upon a fundamental principle that there be no appeal against acquittals". He acknowledged that Parliament had extended upon that principle by conferring the power, however the Full Court should be mindful of that consequence. He also acknowledged, although there is a no direct interference with the principle against double jeopardy, that the considerations which underpin that principle are also relevant upon the exercise of the discretion: pp8-9.

Another relevant factor is the long-standing reluctance by appeal courts to interfere with the progress of a criminal trial and to fragment it. Delay is to be avoided. S350(3) indicates that Parliament regards delay as an important matter: p9. Other matters which the Chief Justice regarded as significant are whether the point of law can be resolved after acquittal (s350(2)(b)), and the seriousness of the charges is to be considered.

When the respondents made their application to the Full Court to have the question of whether there had been a valid delegation of power by the Commissioner of Police to the Deputy Commissioner determined, Doyle CJ referred to the general undesirability of criminal trials being delayed or interrupted by applications on appeals affecting the conduct of the trial and decisions made by the trial judge: R v Gee & Thaller [1999] SASC 116; (1999) 72 SASR 593. He said that he regarded that as a matter of considerable significance in deciding whether to exercise the power and went on to say that the power should only be exercised in circumstances "which one could expect to be unusual or exceptional".

At that stage of the proceedings, the Full Court was concerned with an application by the accused. If a point is resolved adversely to an accused person, and incorrectly so, it is to be expected that it may be corrected on appeal if the accused is found guilty. In those circumstances, it is unlikely that the Full Court would require a point to be reserved. However, that is not to say that such a course would not be taken, but it is to be expected that the circumstances justifying that course would be unusual or exceptional. In the present case this is an application by the prosecution. If the circumstances justify requiring such a reference, then the appropriate order should be made.

Having regard to all of these matters, I have reached the conclusion that the trial Judge should be required to refer appropriate questions for consideration and determination by the Full Court. I mention the wording of these questions in a moment.

These are very serious charges alleged to have occurred over a considerable period of time. It was submitted by the respondents that the questions of law which would be raised by a reference are not of general application, nor are they of particular importance. They submitted that there was no evidence to suggest that there are other cases in which the same or similar issues arise. That may be so, but I think the questions of law are of sufficient general importance in the context of South Australia Police officers working at the NCA, and perhaps elsewhere, to warrant consideration by the Full court. I make no comment about the correctness of the decisions made by the learned Judge except to say that there are arguments against the conclusion that Detective Cunningham acted illegally and that the evidence was obtained unlawfully. There will be no delay in the criminal process in the sense of requiring a jury to stand by whilst the points are considered by the Full Court. The delays in this matter since the points were argued, are not substantial and, in my view, are no more extensive than if the trial could not proceed for some other reason, such as it not being reached or the sudden illness of the trial Judge, counsel or an essential witness.

Mr Edwardson put the argument that to accept the Director's application would result in unequal justice. The Full Court rejected the application of the respondents which was opposed by the Director. It was argued that for that reason it should reject the Director's application. He submitted that the only distinction between the application is that the roles of the parties are reversed. I do not agree. The refusal of the application of the respondents did not foreclose the point against them. The refusal of the application of the Director will prevent the essential evidence in the prosecution case from being led and the prosecution case from proceeding.

We were reminded of the caseflow management rules of the Court which aim to ensure that all trials are completed within 12 months. That is a matter which must be considered but such a goal should not stand in the way of justice. It cannot operate as a time limitation. I do not think delay is a matter of much weight in exercising the discretion.

The consequence of requiring the points to be reserved is that the respondents may lose the chance of acquittal. However, if they do, it will be because evidence which should have been adduced at their trial was wrongly excluded. It must also be brought into consideration that those who commit serious crimes should be brought to justice.

The next matter which the respondents say should be brought to account in their favour is that after the learned Judge made his ruling that the search and seizure was illegal, he asked the prosecutor if the Director wanted to test the ruling in the Full Court and he declined to do so. It is submitted that the Director should not now be permitted to take a different course. The position has now changed. The evidence has been excluded. When the trial Judge raised the matter with the prosecutor, the evidence had not been excluded. The discretion had not been exercised. I think it would have been premature to seek a reference to the Full Court before the decision about admitting the evidence had been made. If the basis for the ruling was to be challenged and the evidence was excluded in the exercise of discretion which could also be challenged, both matters should be heard at the same time.

Also, it is appropriate to consider the exercise of discretion by the learned Judge on the assumption that the evidence was illegally or unlawfully obtained. Parliament has specifically provided that a question of how a judicial discretion should be exercised or whether such a discretion has been properly exercised may be the subject of a reference. In my view, if ever the exercise of judicial discretion to exclude evidence, by reason of it being unlawfully obtained, should be the subject of such a reference, this is such a case. In issuing the warrant, the Deputy Commissioner considered the relevant circumstances and the purpose of the warrant. It seems that any illegality is due to administrative oversight which, if appreciated, would have been remedied promptly. Detective Cunningham undertook the correct procedure to obtain a warrant and genuinely believed that a warrant had been issued to him which was current. The exercise of discretion to exclude evidence obtained in those circumstances, comes within the power given to the Full Court by Parliament.

The next matter raised by the respondents is the anxiety and expense of prolonging the proceedings. As I have said, the proceedings will not be unduly prolonged should the application be granted. I expect that the matter will be considered and determined by the Full Court promptly. There need not be any additional expense incurred by the respondents, other than the expense of a trial, should that occur, because the Director is willing to pay their reasonable costs of the hearing before the Full Court should the application be granted and should such a condition be imposed.

Having considered all of these matters, I think our discretion should be exercised so as to require questions to be reserved for consideration and determination of the Full Court.

The Director produced a document setting out the relevant questions and the factual basis upon which they should be considered. It is as follows:

"1 On the facts found by me and particularised below, was Detective Cunningham seconded to a position outside the police force within the meaning of section 19b(3) [sic] of the Police Act 1952 when occupying the position of 'Chief Investigator' at the National Crime Authority? Particulars a). Detective Cunningham was a member of the South Australian Police Force appointed pursuant to the Police Act (SA) 1952. b) Detective Cunningham was 'seconded' to the NCA from 24 April 1995 until 10 October 1996 pursuant to s58 of the National Crime Authority Act 1984 (Commonwealth) and s28 National Crime Authority (State Provisions) Act 1983. The terms of the 'secondment' are governed by an Agreement Between the Chairperson of the NCA and the Commissioner of Police in the State of South Australia and an Arrangement between the Commonwealth of Australia and the State of South Australia. 2 Does (a) the letter of Detective Cunningham to Deputy Commissioner Hurley on 16 May 1995 and the endorsement [see document 1 of Exhibit J to the affidavit in support of this application], either alone or together with, (b) the grant of the general search warrant [see Exhibit B to the affidavit], constitute an instrument in writing within the meaning of section 19b(3) [sic] of the Police Act 1952 authorising Detective Cunningham to hold and execute a general search warrant on or about 1 February 1996 while seconded to the National Crime Authority? 3 In the absence of an instrument in writing pursuant to section 19b(3) [sic] of the Police Act 1952, is a police officer seconded to a position outside the police force in a position to receive and execute a general search warrant. 4 If the answer to question 1 is affirmative and the answers to questions 2 and 3 are in the negative, is the evidence seized by Detective Cunningham prima facie inadmissible subject to a discretion to admit or admissible subject to a discretion to exclude? 5 On the facts found by me and particularised below, have I properly exercised my discretion to exclude the documentary evidence obtained by Detective Cunningham in the purported execution of the general search warrant issued to him? Particulars of factual findings a) On 1 February 1996 Detective Cunningham seized documentary evidence in the purported exercise of his authority pursuant to a general search warrant which had been issued to him on about the 1st day of January 1996. b) The general search warrant had been issued to Detective Cunningham during his secondment to the NCA by Deputy Commissioner Hurley. c) At the time of the issue of the general search warrant Deputy Commissioner Hurley knew Detective Cunningham was seconded to the NCA and considered it appropriate that he be issued with a general search warrant for use in the course of his duties with the NCA. d) Detective Cunningham lacked authority to be issued and execute a general search warrant through want of an instrument in writing pursuant to s19b(3) [sic] of the Police Act 1952. e) The SA Police and the NCA had previously had their attention drawn to the requirements of s19b(3) and instruments in writing had been prepared for other members of the SA police seconded to the NCA. f) The failure to obtain an instrument in writing pursuant to s19b(3) of the Police Act 1952 was an administrative oversight by Assistant Commissioner Lean. g) If the need for an instrument in writing pursuant to s19b(3) [sic] of the Police Act 1952 had been realised, the appropriate authority would have been issued by the Commissioner (or his delegate). h) Non compliance with s19b(3) was not deliberate. i) Detective Cunningham was unaware of his lack of authority and he did not deliberately exceed his authority. j) The lack of authority does not affect the cogency of the evidence."

I would require the learned Judge to reserve for consideration and determination of the Full Court, the questions in those terms and on that factual basis upon the condition that the Director pays, or causes to be paid, the reasonable legal fees and costs of the respondents of the hearing of the reference.

NYLAND J This is an application by the Commonwealth Director of Public Prosecutions for an order pursuant to s 350(2) of the Criminal Law Consolidation Act 1935 (the Act) to direct a judge of the District Court to reserve questions of law for the consideration of the Full Court. The circumstances giving rise to this application are set out in the reasons of Mullighan J and it is therefore unnecessary to repeat them at length.

The questions sought to be reserved concern the interpretation and application of s 19b(3) of the Police Act 1952, with the exception of the final question which deals with the proper exercise of the trial judge's discretion to exclude the impugned evidence.

There is no doubt that each of the proposed questions is a "relevant question", as defined in s 350(a1) of the Act. The issue for determination is whether this court should require the learned trial judge to reserve those questions pursuant to the provisions of s 350(2)(a).

It is clear that the Full Court has the power to require a judge to reserve relevant questions for its consideration: Application for Reservation of Question of Law (1997) 69 SASR 550. In that case, however, the court did not discuss the considerations to be taken into account in determining whether the court should require the reservation of relevant questions, nor the terms upon which it should do so.

Those issues were first addressed in Application for Reservation of Questions of Law (No. 2) (1997) 196 LSJS 1 wherein the court observed (at 1-2) that:

"The Court has generally set its face against anything in the nature of an interlocutory appeal in criminal matters. It causes delay and anxiety and expense for what may turn out to be no worthwhile purpose at all. Obviously the amended s 350 permits an exception to be made to that general practice. However, the factors we have mentioned are relevant to the exercise of the Court's discretion when asked to act under s 350."

The court adopted an approach which sought to balance competing considerations in order to determine the appropriateness or otherwise of ordering the judge to reserve relevant questions. It took into account that the particular questions which were the subject of that application were, in the opinion of the court, of general importance in the criminal law. Moreover, the questions were thought to be "relevant and important" in the context of that particular trial. This was especially so given that the alleged offences were serious and that the exclusion of the evidence in issue would result in the acquittal of the accused. It also considered the issue of delay, but found that the delay incurred did not provide sufficient reason for refusing the application. In weighing up the competing considerations, the court came to the conclusion that it was appropriate to require the reservation of the proposed questions and made an order to that effect.

This approach was further elaborated in R v Gee & Thaller [1999] SASC 116. The Court of Criminal Appeal refused the application of the accused to make an order for the reservation of a question of law. The court held (at 1) that the power should be exercised "only in circumstances which one could expect to be unusual or exceptional". It confirmed that a significant consideration was the "general undesirability of criminal trials being delayed or interrupted by applications or appeals affecting the conduct of the trial or affecting decisions made by the trial judge."

Most recently, the court's power under s 350(2)(a) was discussed in Application for Reservation of Questions of Law (No. 2 of 1999) [1999] SASC 260. The court confirmed that the determination as to whether a judge should be required to refer questions of law is a discretionary matter which may incorporate a wide variety of considerations. In his reasons for decision, Doyle CJ said (pp 7-8):

"As is the case with most general discretions, it is not possible or even useful to attempt to state exhaustively, and in the abstract, all of the matters to be considered in the exercise of such a general discretion. What I have just said is no more than an attempt to indicate the general nature of the matters to be considered. The purpose of s 350 is to enable a relevant question to be determined by the Full Court. But for that section, a relevant question could be determined in criminal proceedings and be incapable of review unless there is a conviction and then an appeal by the accused person. That is so because there can be no appeal from an acquittal. The section contemplates that a relevant question may be considered and determined by the Full Court before the trial proper begins, while it is in progress or after an acquittal. The fact that a relevant question can be considered and determined before a verdict has been given indicates that Parliament contemplated a relevant question being determined at a time that would enable the Full Court decision to guide a judge in the making of a decision and, I consider, to reconsider a decision already made. However, for reasons that I will indicate shortly, there are strong reasons why the power conferred by s 350(2)(a) should be exercised with restraint when its exercise will interrupt a trial, or is sought with a view to having a trial judge review a decision already made. Bearing in mind that Parliament has not conferred upon the Director of Public Prosecutions a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s 350 mainly in relation to relevant questions that raise an important question of law or a question of law of general application. Parliament could not have intended that the Full Court would exercise its powers under s 350 to provide, as a matter of routine, a process for reviewing decisions by trial judges made in the ordinary course of trying a case. ... The terms in which and on which the power is conferred suggest to me that Parliament envisaged it usually being exercised when there is a particular reason to do so. The fact that a relevant question involves an important question of law or a question of law of general application, would be a reason (not necessarily decisive) for doing so. ... I consider that the usual basis for the exercise of the power will be the importance of the relevant question. (emphasis added)

The Chief Justice discussed a number of relevant considerations which included the possible reversal of a decision which would otherwise have resulted in an acquittal, and the undesirability of interfering with the progress of a criminal trial for reasons of fragmentation and delay.

Duggan J in a separate, but concurring, judgment said (at p 11)that he thought that the cases in which such a direction would be appropriate "will be rare". Furthermore, he commented that a direction to reserve relevant questions after a ruling had been made by the trial judge "would be tantamount to allowing the prosecution a right akin to an appeal", and suggested that the more appropriate remedy was for the Director to refer the relevant questions to the Full Court following an acquittal.

In my opinion, the consistent theme to emerge from these authorities is that the court's power pursuant to s 350(2)(a) to require a judge to reserve relevant questions for the consideration of the Full Court is a discretionary power which should not be invoked as "a matter of routine", and should only be exercised with "restraint" in "rare", "unusual", and "exceptional" circumstances. At the heart of the relevant considerations are the importance and/or general applicability of the questions sought to be reserved. It is not sufficient that there exist a prima facie error of law in the reasoning of the trial judge. A test founded on that basis would effectively convert the Full Court into a court of criminal appeal.

In enacting s 350 Parliament clearly contemplated that there would be occasions on which it would be appropriate to provide the Full Court with a means by which to interrupt a criminal trial. Nevertheless, in my view, the provisions of this section do not signal a complete departure from the long-standing recognition as to the undesirability of interfering with the trial process. This is illustrated by the inclusion of s 350(3) which is concerned with avoiding undue delay. In my opinion, the effect of this is that the power vested in the Full Court pursuant to s 350 should be exercised in a manner that is consistent with the court's general reluctance to interfere in criminal trials. The power should only be invoked in special circumstances in which interference with the trial is warranted by the importance or general applicability of the questions in issue.

This, in my view, is supported by the comments of the High Court in R v Elliott (1995) 185 CLR 250 at 257, wherein Brennan CJ, Gummow and Kirby JJ said (at 257) in reference to the corresponding Victorian legislation:

"It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong. If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal But the prosecution has no such right. If the ruling results in an acquittal the ruling, albeit erroneous, can be canvassed on appeal, but only to correct the ruling - not to impeach the acquittal: see s 450A. Obviously two considerations are in competition here. On the one hand, the prosecution is entitled no less than the defence to a trial according to correct rulings on questions of law. On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The witnesses' memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to s 450A. The legislative scheme gives greater weight to the despatch of criminal trials than it has given to protecting the prosecution's ability to appeal against rulings which it thinks to be incorrect."

In Frugtniet v Victoria [1997] HCA 44; (1977) 71 ALJR 1598, Kirby J said (at 1602):

"This Court has more than once, including recently, emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it do so. The Court expressed its attitude of restraint most recently in its decision in R. v Elliott (1996) 185 CLR 250 at 257. There are many earlier such cases. See, eg, Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 435-436; Sankey v Whitlam [1978] HCA 43; (1978 142 CLR 1 at 26, 79. They evidence the strong disposition of appellate courts in Australia - and especially of this Court - not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required."

Returning to the case at bar, the proposed relevant questions are essentially concerned with the reliability of a search warrant, pursuant to which Detective Cunningham, who was at that time attached to the National Crime Authority, searched the premises of the accused on 1 February 1996. Documents obtained during this search led to the prosecution of the accused for defrauding the Commonwealth. The exclusion of these documents from the trial evidence will necessarily result in the acquittal of the accused. The first question deals with whether Detective Cunningham was seconded to a position "outside the police force" within the meaning of s 19b(3) of the Police Act 1952; the second question is concerned with whether Detective Cunningham was issued with an instrument in writing within the meaning of s 19b(3), authorising him to hold and execute the general search warrant; the third question deals with whether, in the absence of any such instrument, a police officer seconded to a position outside the police force is not in a position to hold and execute a general search warrant; the fourth question asks whether the evidence seized by Detective Cunningham is prima facie inadmissible subject to a discretion to admit or admissible subject to a discretion to exclude; and, the final question is directed at whether the trial judge properly exercised his discretion to exclude the documentary evidence obtained during the search.

The thrust of the submissions of Mr Kourakis QC for the applicant was that the trial judge had erred in law in exercising his discretion to exclude the evidence. The public policy discretion provides for the exclusion of otherwise admissible evidence which has been improperly or unlawfully obtained, whereas the learned judge purported to exercise his discretion to rule as to the initial admissibility of the evidence. This, it is submitted, has resulted in a reversal of the onus proof and, in the absence of such a reversal, the accused would not have been in a position to establish that the evidence should be excluded. As I have said, however, a prima facie error of law is not a sufficient basis for the Full Court to require a judge to refer questions of law. In my view, it remains imperative for the questions to be important questions of law or questions of law of general application.

Mr Kourakis further submitted that the "underlying basis" for the application at this stage of the proceedings was the fact that, "if questions aren't finally settled now, there can and will be no conviction of those persons if the decision was wrongly decided." As I have said above, the possible acquittal of the accused is a relevant factor to be considered in the determination as to whether to order the reservation of relevant questions of law. It can not, however, be the sole or primary consideration. If this were so, the Director would be in a position to pursue this effective avenue of appeal with respect to any judicial ruling which would result in the acquittal of the accused, regardless of the significance of the questions of law involved. This is consistent with the comments of Doyle CJ in Application for Reservation of Questions of Law (No.2 of 1999), wherein he said (at 8-9):

"an exercise of the power with a view to having a judge reverse a decision that will, or is likely to, lead to the acquittal of a person charged, entrenches upon a fundamental principle that there be no appeal against acquittals. Parliament has allowed that principle to be entrenched upon. It has done so conferring the power that it has conferred. But a court asked to exercise the power must be mindful, if it is the fact ... that the Director of Public Prosecutions seeks to reverse a decision that would result in an acquittal."

Although the jury has not yet been empanelled, some delay and fragmentation of the trial process has already occurred. The accused were first arraigned in the District Court on 19 May 1998. They were re-arraigned on 10 December 1998 and entered pleas of not guilty when the argument as to preliminary matters commenced. The reservation of questions for the consideration of the Full Court will inevitably increase the delay. In my opinion, the questions sought to be reserved are neither important questions of law or questions of law of general application. The issues which arise appear to be discrete questions arising on the facts of this case. They arise from an administrative oversight in a context in which the National Crime Authority and the South Australia Police appear to have been well aware of the need for an instrument in writing and to have consistently satisfied this condition precedent for the granting of a general search warrant in other cases. The questions of law which arise on this case can therefore not be described as questions of general applicability. Moreover, I am not persuaded that any of the questions of law are of sufficient importance to warrant the intervention of the Full Court at this stage of the proceedings. If there is ultimately an acquittal, the Director will have the benefit of referral pursuant to s 350(2)(b).

In my opinion, the application by the Director of Public Prosecutions should be refused.