R v GEE & THALLER No. SCCRM-99-23 Judgment No. S116 [1999] SASC 116

The Commonwealth Director of Public Prosecutions filed an information in the District Court. The information alleged nine counts of defrauding the Commonwealth. Before a jury was empanelled, the District Court was asked to determine an application by defence counsel to have excluded from the trial certain evidence proposed to be led by the prosecution. The submission was and is that a certain search warrant issued under s67 of the Summary Offences Act was invalidly issued. On that basis, it was sought to exclude material seized when the warrant was executed. The warrant in question was issued by a Deputy Commissioner of Police exercising a power delegated to him by the Commissioner of Police.

The Commissioner of Police has a wide power of delegation conferred by s53 of the now repealed Police Act 1952.

The argument before the District Court judge was that the power to issue search warrants conferred by s67 of the Summary Offences Act could not be delegated. The District Court judge rejected the submission and held that the warrant was valid. The trial has now been adjourned to commence on 18 May 1999.

The District Court judge declined to reserve a case for consideration by this Court, raising the appointed issue, although requested to do so by counsel for the accused.

In the matter An Application for Reservation of Questions of Law (No.2) (1997) 196 LSJS 1 this Court did direct a judge to reserve a question of law for its consideration. However, the Court referred to the general undesirability of criminal trials being delayed or interrupted by applications or appeals affecting the conduct of the trial and affecting decisions made by the trial judge. In my opinion, that is a matter of considerable significance in deciding whether to exercise the power which this Court has under s350(2). In my opinion, the Court should exercise that power only in circumstances which one could expect to be unusual or exceptional.

Even if the Court can, in this particular case, hear and decide the point of law in sufficient time for the trial to begin on 18 May, it remains undesirable to produce uncertainty about the commencement of the trial. By this I mean that the Court cannot give any assurance that it would be able to produce a decision by a time that would avoid any disruption to the proposed commencement date for the trial.

It is also desirable, in my opinion, for this Court to avoid exercising its power under s350(2) in a fashion that would give the impression that the Court will readily require a trial judge to reserve a question of law for its consideration.

In the present case, the appointed issue is said to have some general importance because it will or might arise in other cases. That may be so, but I have to say that I am not aware of any significant disruption to the work of the courts, as yet, as a result of this point remaining unresolved by the Court of Criminal Appeal.

It is also the case that if the trial judge is wrong the point can still be taken by the defence on appeal. Nor is this a case in which the judge's decision on the point is decisive of the outcome of the case. If the judge is right, the defendants will continue to deny their guilt. However, it has to be acknowledged that if the judge is wrong about the matter of law, and if the evidence is excluded in the exercise of his discretion, the prosecution is unlikely to continue. But it is only in those events that it can be said that a decision on the question of law will determine the outcome of the case.

Under all the circumstances, I do not find any good reason to depart from the ordinary course of allowing the trial to proceed in accordance with the trial judge's ruling and allowing the defendants to appeal, if convicted, and if so advised.

Nor, as counsel appeared to acknowledge, has this Court power to deal with the question of law here and now as if notionally the case had been reserved to it. The Court would, of necessity, have to await the formulation of the question reserved and case stated and that is a matter for determination by the District Court judge.

Accordingly, I would decline to order the District Court judge to reserve the question of law for consideration by this Court and I would dismiss the application made by this Court by application filed 18 February 1999.

BLEBY J: I agree that the application should be dismissed and for the reasons given by the Chief Justice.

WICKS J: I agree that the application should be dismissed for the reasons given by the Chief Justice.

DOYLE CJ: Accordingly, the order of the Court is that the application should be dismissed.