R v KOLA No. SCCRM-02-31 [2002] SASC 203

Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

1. DOYLE CJ: This is an appeal by leave against a conviction recorded by the District Court.

2. The appellant was convicted on the verdict of a jury of one count of possessing cannabis for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) ("the CSA"). The trial Judge imposed a sentence of imprisonment for three years, and fixed a non-parole period of two years in relation to that head sentence. The Judge suspended the sentence, upon the appellant entering into a bond.

3. On 25 August 2000, the appellant was stopped by police at a breath testing station ("the BTS") that had been set up on Salisbury Highway. Senior Constable Kirk approached the appellant's car and told the appellant that the police were conducting random breath tests and licence checks, and he asked to see the appellant's driver's licence. The appellant said he was not carrying his driver's licence. Senior Constable Kirk then noticed a strong smell of cannabis coming from inside the vehicle. He spoke to a fellow officer, who indicated he could also smell cannabis. Senior Constable Kirk noticed a travel bag on the front seat of the car. He asked the appellant what was in the bag. The appellant opened the bag. The bag contained a number of shopping bags containing cannabis.

4. The police searched the car and found a suitcase on the back seat of the car containing some more bags of cannabis. The police arrested the appellant and charged him with possessing cannabis for sale.

5. The appellant was not required to submit to an alcotest. Senior Constable Kirk became suspicious that the appellant was in possession of cannabis before an alcotest was conducted. The appellant was not required to submit to an alcotest at any stage after that.

6. Following the appellant's arrest at the scene, he was taken to the Elizabeth Police Station. Later that evening, Senior Constable Kirk obtained a search warrant to search the appellant's home. In the house, the police found cannabis and equipment for cultivating cannabis. They also found a notebook containing names, telephone numbers and numerical amounts, and other material that indicated the appellant was engaged in cultivating cannabis for sale.

7. The police also searched a large shed on the appellant's premises. The shed was set up with equipment suitable for cultivating cannabis, and cannabis was scattered about the floor. Further material suitable for cultivating cannabis was found in a smaller shed adjacent to the large shed.

The first ground is that the BTS was not lawfully established, that accordingly it was unlawful for the member of the police force concerned to stop the appellant, and that the search of his vehicle and home, and the discovery of incriminating evidence in the vehicle and in the home were tainted with the illegality that attached to the original unlawful stopping. Accordingly, it is argued, the Judge should have exercised his discretion to exclude all of the evidence obtained after the appellant was stopped.

Involved in this ground of appeal is a submission not put to the District Court Judge. It is that the Judge could and should have inferred that there were documents in the possession of the Commissioner of Police which would disclose legal advice concerning the powers of a member of the police force to establish a BTS, and that this advice would disclose either official encouragement at a senior level of the misuse of the power to establish a BTS, or that senior police officers should have known that the BTS was not lawfully established, and had acted recklessly or carelessly. This submission was put to counter an anticipated submission from counsel for the DPP that if the BTS was unlawfully established, the court should not exclude the evidence in question, because the police officers concerned had acted in good faith.

The second ground argued is that the Judge erred in directing the jury to disregard a comment made to them by counsel for the appellant, in the closing addresses, about the possibility of the appellant going to gaol.

The first ground requires a close consideration of the statutory power to establish a BTS, and consideration of documents tendered and evidence given on an application made, before the jury was empanelled, to have the Judge exclude the incriminating evidence obtained after the appellant was stopped at the BTS.

The power to establish a BTS is conferred by s 47DA of the Road Traffic Act 1961 (SA) ("the RTA") which provides as follows:

"47DA.(1) A breath testing station may be established by members of the police force at any time on or in the vicinity of any road for the purpose of enabling alcotests to be conducted in relation to persons driving motor vehicles on the road.

(2) A breath testing station must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession.

(3) Any member of the police force who requires a driver to submit to an alcotest at a breath testing station, or who stops a motor vehicle for that purpose, must be in uniform.

(4) The Commissioner of Police must establish procedures to be followed by the members of the police force performing duties at or in connection with a breath testing station, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons stopped at the station."

The power to require a driver to submit to an alcotest is conferred by s 47E(2a) which provides:

"(2a) A member of the police force may require the driver of a motor vehicle that approaches a breath testing station established pursuant to section 47DA to submit to an alcotest."

This latter provision confers, by implication, the power to require the driver who approaches the BTS to stop. There is no other provision of the RTA that does so.

These provisions are found in Division 5 of Part 3 of the RTA. Division 5 is headed "Driving Under Influence Of Liquor Or Drugs." It contains well known provisions relating to offences involving driving when affected by liquor or a drug, including provisions relating to alcotests, breath analysis and blood tests.

The provisions found in s 47DA and s 47E(2a) are significant because they permit the random stopping of drivers for the purpose of requiring them to submit to an alcotest. A driver can be stopped even though the police officer who requires the driver to stop does not have any reason to suspect that an offence is being committed. In this respect, while not unique, the provisions are out of the ordinary.

Other statutory powers in Division 5 to require a driver to submit to an alcotest, or to breath analysis, or to having blood taken for analysis, depend upon a belief on reasonable grounds that an offence against Part 3 has been committed, that the relevant person's ability to drive is impaired, or that the person has been involved in an accident.

Generally, statutory powers to require the driver of a motor vehicle to stop depend upon a suspicion that an offence is being committed or may be being committed: see, for example, Summary Offences Act 1953 (SA) s 68, the CSA s 52(1) and s 52(9), the RTA s 160(1a).

However, as I have said, s 47DA and s 47E(2a) are not wholly exceptional. Section 42(1) of the RTA confers a power to stop the driver of a vehicle and to ask certain questions of the driver, even though no offence is suspected. Section 160(1b) of the RTA confers a power to stop the driver of a vehicle of a prescribed class and then to examine the vehicle to determine whether the vehicle complies with certain vehicle standards or may constitute a safety risk. This power is expressly conferred "whether or not there is reason to suspect that the vehicle does not so comply or may constitute a safety risk." Section 96 of the Motor Vehicles Act 1959 (SA) ("the MVA") confers a power to require the driver of a motor vehicle to produce his or her licence or learner's permit. Whether this provision confers a power to stop the driver for that purpose is unclear. It is convenient to mention here s 98 of the MVA which provides as follows:

"The Commissioner of Police must at intervals of not more than 12 months take such steps as are reasonably practicable to ascertain whether any persons are driving motor vehicles without holding licences."

That provision might be taken to confer, by implication, a power to stop drivers for that purpose. It is not necessary to decide that matter here.

There may be other statutory or common law powers to stop the driver of a vehicle. I simply make the point that the power to stop a motor vehicle and to impose a requirement on the driver on a random basis is the exception rather than the rule.

It was common ground that the only basis for requiring the appellant to stop his motor vehicle was the exercise of the power conferred by s 47E(2a). That meant that the exercise of the power turned on the legality or validity of the establishment of the BTS under s 47DA(1).

After the appellant stopped at the BTS, Senior Constable Kirk had reason to believe that the vehicle contained cannabis. Subject to issues to be dealt with, a power conferred by s 52(9) of the CSA was available to be used by Senior Constable Kirk. That provision is as follows:

"Where an authorised officer who is a member of the police force suspects on reasonable grounds that a substance that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may-

(a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and

(b) detain and search the vehicle, vessel or aircraft; and

(c) seize and remove from the vehicle, vessel or aircraft anything that the officer has reasonable cause to suspect affords evidence of an offence against this Act."

On appeal it was not denied that the police officers at the BTS were requiring drivers whom they stopped to submit to an alcotest. As I understood the submissions it was accepted on both sides that Senior Constable Kirk was intending to require the appellant to submit to an alcotest, until he smelt cannabis in the motor vehicle. For his part, counsel for the Director of Public Prosecutions accepted that the police officers were requiring drivers to produce their driver's licences (relying on s 96 of the MVA), and that while the vehicles were stationary at the BTS they would be examined by other police officers to see if there was any indication of a failure to comply with the RTA or the MVA. There were other police officers at the BTS who were checking, presumably by reference to registration numbers, to see if any of the vehicles were stolen or if there was any reason to suspect that they were being used in connection with the stealing of goods. Depending upon what these police officers observed, the occasion to exercise some of the statutory powers referred to might arise.

There was no finding by the Judge to suggest that drivers were being detained at the BTS longer than required for the conduct of an alcotest, and there is no reason to think that they were. Obviously, however, if the police found something that gave them power to require a driver to remain and to submit to further inquiry, they would do so.

In the course of the application to have the Judge exclude the evidence obtained from the searches, counsel for the appellant tendered a written "Operation Order" which had been produced by the Director in response to a subpoena. This document was intended to provide instructions and guidance to police officers involved in the operation of the BTS.

It is apparent from the Order that the BTS was established in the context of, and as part of, a wider operation called "Operation Interest". The Operation apparently involved police officers from three neighbouring police areas. "Operation Interest" was described in general terms as follows:

"This tactical operation has been implemented to apprehend offenders committing vehicle related offences and in particular to target the 'corridors' being used by offenders to increase the likelihood of detection. The operation will also incorporate four highly visible RBT sites and there will be an emphasis on ensuring compliance with both the Road Traffic and Motor Vehicle Act. It is a 'cross border' operation involving personnel from Port Adelaide, Holden Hill and Elizabeth LSA's."

It is apparent from the text that follows that there was a particular focus on "vehicle related crime", and the use by offenders of particular roads in connection with these offences, at times which were identified as the times when most vehicles were stolen. The aim of the operation was said to be as follows:

"To arrest and report offenders and to gain evidence of this type of targeted behaviour. To gain information and intelligence as to possible offenders and their movements. To enhance road safety and improve road user behaviour with a view to reducing the number and impact of vehicle collisions within the LSA's."

The strategy was to set up a BTS at each of four sites which were presumably chosen on the basis that they were on roads likely to be used by potential offenders. A clearer understanding of the use of each BTS emerges from the following description of the strategy:

"The emphasis of this operation is to Breath Test as many motorists as is possible within the allocated period. As part of our commitment to Operation VIGIL members will pay close attention to vehicles and their occupants. Any vehicle which is observed as failing to comply with provisions of the Road Traffic/Motor Vehicles Act is to be moved from the RBT site and dealt with in an appropriate manner. An Ancillary report is to be submitted with details of persons spoke to for any matter."

The Order goes on to provide quite detailed instructions about the manner in which each BTS was to be operated.

The BTS at which the appellant was stopped was under the supervision of Senior Sergeant Mather, who appears to be the member of the police force who established the site for the purposes of s 47DA(1). It is clear enough from the "Operation Order" that the site was established for the purposes of "Operation Interest", and to implement the strategy set out above.

With that background, Mr Wells QC for the appellant, submits that the BTS was not lawfully established.

Mr Wells submits that the Judge should have found that the BTS was established primarily to enable police officers to implement the objects of "Operation Interest". That is, the primary purpose of the establishment of the BTS was to target vehicle related crime. He submits that conducting alcotests was only a secondary purpose, as was the detection of offences under the RTA and the MVA. In the alternative he submits that the Judge should have found that at the least there were concurrent purposes, of equal significance, and that the purposes were the targeting of stolen vehicles and property and the conducting of alcotests, and the detection of offences against the MVA and RTA. I will return in due course to the question of which is the appropriate finding.

Mr Wells submits that in either event the BTS was not validly established. He submits that the power conferred by s 47DA(1) is validly exercised only if it is exercised for the sole purpose "of enabling alcotests to be conducted." His submission accepts that if the BTS was established for the sole purpose of "enabling alcotests to be conducted", and a police officer was intending to require a driver to submit to an alcotest, but the police officer suspected on reasonable grounds that cannabis was present in the vehicle of the driver, the power conferred by s 52(9) of the CSA would be available to be exercised by the police officer. But his point was that unless the BTS was established for the sole purpose of conducting alcotests, it was not established lawfully.

Accordingly, the submission focuses on the purpose of Sergeant Mather who established the BTS, not on the purpose or intentions of the police officers who operated the BTS. Counsel for the Director was content to proceed on the basis that Sergeant Mather was the relevant person. Sergeant Mather is named in the "Operation Order" and his name appears as the person who prepared the document. Accordingly, it is appropriate to treat the contents of the "Operation Order" as reflecting Sergeant Mather's purpose.

Having read the "Operation Order" and the attached documents, I am satisfied that Sergeant Mather established the BTS "for the purpose of enabling alcotests to be conducted" and also for the purpose of enabling police officers at the BTS to examine vehicles and their occupants with a view to detecting "thefts from vehicles and illegal use offences" being committed in the relevant areas. I am satisfied that his purpose was also to enable police officers at the BTS to detect other offences against the RTA and the MVA. I am also satisfied on the evidence that "the purpose of enabling alcotests to be conducted" was in no sense colourable or a sham. I am satisfied that the purpose was to enable alcotests to be conducted, but that this was done at a time and place that Senior Sergeant Mather hoped would lead to the detection of thefts from vehicles and illegal use offences, and to the detection, (in what I am prepared to assume would be the usual way with a BTS), of offences against the MVA and the RTA. The inference I draw, on admittedly limited evidence, is that there were more police officers at the BTS than would be necessary to enable alcotests to be administered. They were there to scrutinise vehicles when they were stopped for the purpose of an alcotest, in the hope of finding evidence of other offences.

In that sense it is correct to say, as Mr Wells submitted, that the BTS was not established for the sole purpose of enabling alcotests to be conducted. Sergeant Mather intended that the power to conduct alcotests be used at a time and place that would facilitate the use of the BTS for the detection of other offences.

I turn now to Mr Wells' submission as to the validity or lawfulness of the establishment of the BTS.

If the reference to "purpose" in s 47DA(1) is to the activity that Senior Sergeant Mather intended to take place at the BTS, then clearly the purpose of this BTS was to enable alcotests to be conducted. There is no doubt that that is what Senior Sergeant Mather intended to happen at the BTS. That is what did happen, even if other things happened as well. If the reference to "purpose" is a reference to the reasons why the BTS was established, or to the motives for its establishment, other matters arise for consideration. I accept that in this sense another purpose for establishing the BTS was to advance the aims of "Operation Interest", and to detect offences against the RTA and the MVA in the usual way in which this might occur at a BTS. Accordingly, if "purpose" is used in that wider sense, there were several purposes.

It is not easy to know where one is to stop once one begins to enquire more widely than to enquire whether alcotests were to be conducted. It is conceivable that in a given case, not this case, a BTS might be established because the relevant supervisor took the view that there was a need to keep police officers familiar with the procedures to be followed at a BTS. In other words, it is conceivable that a decision to establish a particular BTS might be motivated by the desire to provide relevant experience to police officers. A BTS might be established at a particular time and place because local residents had complained that police were not sufficiently active in policing a given area. All sorts of motives and purposes might be found, all of which might, in a very general sense, be treated as quite legitimate motives or considerations.

As I said, once one moves beyond enquiring as to the activity that is to take place at the BTS, it is not easy to see where the enquiry is to stop. For that reason, it is tempting to say that the only relevant enquiry when one enquires as to the purpose for which a BTS is established is an enquiry into whether alcotests were to be conducted at the BTS. But I consider that that is too narrow an approach.

For example, to take an extreme instance, assume that a police officer establishes a BTS near a particular hotel on several consecutive days, and assume that the evidence establishes that the police officer did so to deter customers from patronising the hotel in the hope that they would patronise a rival hotel with whose proprietor the police officer is friendly. It is difficult to believe that that would be a lawful or valid use of the power to establish the BTS. Such a purpose is extraneous to the purpose for which the power has been conferred. One would think that its presence would render unlawful or invalid the establishment of the BTS. Again, one might postulate a BTS established by a police officer to enable other police officers to check cars for a prison escapee, the BTS being established as nothing more than an excuse or device to enable the police to stop cars so that they can check the drivers and passengers. Even though locating the escapee is a proper function of the member of the police force, one again tends to think that the BTS would not be lawfully established if the evidence showed that that was the purpose with which it was established, and if the conducting of alcotests was merely a means to that end. In each instance one would think that the mere fact that alcotests were actually conducted would not make the establishment of the BTS lawful. Again, and perhaps more obviously than in the case of the last example, if the conduct of alcotests at a BTS was a mere pretext or device, the alcotest being conducted only if the police officer could find no other basis to detain a motorist who had been stopped.

These considerations lead me to the conclusion that it is not sufficient simply to enquire whether alcotests were in fact conducted at a BTS, if there is a challenge to the lawfulness of the establishment of a BTS. It is possible that the presence of an extraneous purpose will invalidate the establishment of the BTS.

I also accept the general submission by Mr Wells that s 47DA(1) is an intrusion on the common law rights of people to go about their lawful business undisturbed. Statutory powers that authorise intrusions upon such common law rights are to be read narrowly: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; Pearce and Geddes "Statutory Interpretation Australia" (4th Ed, 1996) Ch 5, paras 5.16 and 5.17. The emphasis in s 47DA on minimising the delay and inconvenience to persons who are stopped confirms that Parliament recognised that the provision constitutes an intrusion on common law rights.

For all those reasons it is not sufficient to say that the BTS was used to enable alcotests to be conducted, and accordingly was validly established. It is necessary to look more closely at the purpose in question.

But is the permissible purpose as narrow as Mr Wells suggests? Must the sole purpose be to enable alcotests to be conducted? Is the establishment of the BTS invalid if the detection of other offences is also a purpose, as distinct from something which the person who establishes the BTS recognises might occur? Does the establishment of the BTS become invalid if the detection of other offences is more than something contemplated as an incidental possibility, and becomes a purpose of the activity?

I consider that the submission advanced by Mr Wells is too narrow. It is significant that the power is conferred by s 47DA(1) on a police officer. Usually a police officer can be expected at all times to exercise such of his or her statutory and common law powers as might be appropriate to the situation which arises at any given time. The power to establish a BTS is not conferred on someone whom one would expect to consider only the exercise of that particular power. Granted, the power is conferred in limited terms and for a particular purpose, and with an explicit direction to exercise the power without causing "undue delay or inconvenience to persons stopped at the station." But I find no persuasive reason to read the section as narrowly as does Mr Wells. As I have said, when a statutory power is conferred on a police officer, one would normally expect the power to be exercised along with such other powers as the police officer has. It seems to me that there is nothing offensive to the policy of the section, or to the protection of common law rights, if a BTS is set up in a manner that will facilitate the concurrent conducting of licence and vehicle safety checks for instance, as long as this is done while alcotests are conducted, and as long as drivers are not delayed except for the alcotest. If one accepts that a police officer at a BTS is entitled to exercise available common law and statutory powers to deal with evidence of an offence which comes to the officer's attention at the BTS, or exercise powers which arise because of a suspicion formed while at the BTS, it seems to me unrealistic and artificial to say that those powers may be exercised, but that the establishment of the BTS is unlawful if the officer establishing the BTS intends that to occur and facilitates it occurring, as distinct from treating it as an incidental benefit should it happen. I also consider that it would be impractical to draw this distinction, when scrutinising the purpose of the person who established the BTS.

In other words, I consider that a BTS is established lawfully if established for the purpose of conducting alcotests, even though it is established at a time or place or in a manner (or all of them) which will facilitate the detection of other offences. That is, the BTS is established lawfully even though not established for the sole purpose of conducting alcotests. As I have endeavoured to explain by the examples I gave earlier, there will be circumstances when an extraneous purpose is such that the establishment will not be lawful, even though alcotests are conducted. Drawing the line between those situations and what I regard as lawful may not always be easy. But I do not agree that the line is to be drawn as narrowly as Mr Wells submits.

For those reasons I am of the opinion that the BTS was validly established. It was established to enable alcotests to be conducted. It did not cease to be validly or lawfully established because Senior Sergeant Mather also intended that the BTS operate in a manner that would facilitate achieving the objectives of "Operation Interest". I emphasise that the establishment of the BTS was not a mere pretext upon which to stop vehicles for purposes other than conducting alcotests.

Nor do I accept, as a matter of fact, Mr Wells' submission that the sole or dominant purpose in establishing the BTS was to detect stolen vehicles and stolen property. The "Operation Order" on the basis of which Senior Sergeant Mather established the BTS puts more or less equal emphasis on detecting stolen vehicles and property and on detecting drink driving offences, and also other RTA and MVA offences. My conclusion, reading the "Operation Order" as a whole, is that Senior Sergeant Mather's purpose was to enable the conduct of alcotests, and at the same time to facilitate the pursuit of the objectives of "Operation Interest" and the detection of MVA and RTA offences.

It follows that there was no occasion for the Judge to exercise the discretion to exclude evidence tendered by the prosecution on the basis that the evidence was obtained by unlawful means.

The Judge said that even if the BTS was unlawfully established, he would not have exercised his discretion to exclude the evidence obtained as a result of the searches. He said that at most there might be "some technical impropriety" involved.

I do not regard the issue as being as simple as that.

If the BTS was unlawfully established, it follows that a power conferred for a narrow purpose has been deliberately used for a wider purpose. If the BTS was unlawful, the power to conduct alcotests has been used for another end, namely to detect stolen vehicles and stolen property and other offences. This is not a minor matter. On this hypothesis the BTS has been set up for an impermissible purpose. The "Operation Order" discloses that that purpose has the approval of the relevant Field Commander (an Inspector), and the relevant Base Commander (a Superintendent). The improper purpose has been approved at a senior level.

On the other hand, there was no evidence before the Judge to suggest that any of those concerned were aware of the fact that their proposed use of the BTS was unlawful. A finding of intentional or reckless misconduct cannot be made on the evidence. Counsel for the appellant in the District Court did not apply to cross-examine Senior Sergeant Mather, or the Superintendent or Inspector involved. Moreover, the proper interpretation of s 47DA(1) is not simple. One could not be too critical of a senior police officer or legal adviser who shared what would be my error, on this hypothesis, as to the proper interpretation of s 47DA.

But to be weighed against these points is the fact that it is reasonable to infer, from the terms of the "Operation Order", that there is a view among senior officers of the police force that the procedure followed in the instant case is permissible. There is no hint in the "Operation Order" that it is an unusual or exceptional undertaking.

It is also important to bear in mind, and to weigh up, that important common law rights have been interfered with, if the BTS was established unlawfully.

The District Court Judge did not adequately consider the exercise of the discretion identified in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, on the hypothesis that the BTS was established unlawfully. It is necessary for this Court to consider the matter afresh.

To my mind, the matter is fairly finely balanced. But on balance I would reach the same conclusion as the District Court Judge reached. I am influenced by the fact that the proper construction of s 47DA raises difficult issues, and by the fact that there is no evidence of conscious wrongdoing or of recklessness. Accordingly, if I am wrong in my approach to the meaning of s 47DA(1), I would nevertheless conclude that the Judge was right not to exclude the evidence obtained as a result of the searches.

Application for an order for the production of further documents

When the appeal came on for hearing on 23 May 2002, Mr Wells brought to the Court's attention an application that had been filed on 22 May. The application was for an order under s 359(a) of the Criminal Law Consolidation Act 1935 (SA). The application invoked the power of the court, on the hearing of an appeal, to order the production of a document. That power is a wide one, but has generally been understood as available only when it is proper for the court to admit fresh evidence on appeal, consistently with established principles. However, I emphasise that the power is conferred in general terms.

Mr Wells reminded the court of some of the history. On 28 November 2001, seven days before the resumption of the hearing of the application for the exclusion of evidence before trial, the solicitor for the appellant issued a subpoena out of the District Court to the Commissioner of Police. That application had begun before the District Court Judge on 23 May 2001, and had continued on 24 May 2001. It had been interrupted by an unsuccessful attempt to have the Judge disqualified from hearing the case further. The subpoena that was issued shortly before the resumed hearing sought the production of documents relevant to the establishment of the BTS, documents disclosing the results achieved at the BTS, and the production of some General Orders issued by the Commissioner relating to the stopping of motor vehicles by police officers, and relating to the conduct of a BTS. On 5 December 2001 a number of documents were produced by the Director, and the hearing of the application resumed that day. A ruling, adverse to the appellant, was made by the Judge that day and reasons were given on 7 December 2001. The reasons of the Judge indicate that in May the submission by counsel for the appellant had been that a police officer at a BTS had no power to do anything other than conduct an alcotest. On 5 December 2001 the submission had been modified, and was more in accord with the submission advanced by Mr Wells on appeal. There was no complaint on 5 December about the return made to the subpoena, nor was there any application to cross-examine any of the signatories to the "Operation Order".

Mr Wells submits that this Court should infer that it is likely that the Commissioner of Police has in his possession internal legal advice, or advice from the Crown Solicitor or Director of Public Prosecutions, relating to the power of a police officer to establish a BTS, and bearing on the submissions canvassed before this Court. He submits that any such advice should have been produced because it would be relevant to the question of whether the Commissioner or senior police officers knew or should have known that the establishment of the BTS was unlawful. He submits that the Director should have produced any such advice when the matter was before the District Court. The failure of the Director to do so should lead to an inference that such advices do exist, and are adverse to the submission by the Director that there is no basis for a finding that the police officers concerned knew that they lacked the power to establish the BTS in the relevant circumstances, or were careless or reckless as to their power to do so. Mr Wells submits that the failure to produce this material to the District Court Judge is a sufficient reason for this Court now to order its production. He emphasises that the Commissioner and the Director failed to comply with their obligation of disclosure from the outset, that that is an irregularity in the course of the trial and that is an answer to any complaint that the application made to this Court came too late. In relation to the duty of disclosure he relies upon decisions in this Court such as R v Reci [1997] SASC 6802; (1997) 70 SASR 78 at 100-102, R v Gillard (1999) 76 SASR 76 and 85-88, and to the English decisions of R v Ward [1993] 1 WLR 619 at 641-648, and at 676, and R v Mills [1997] UKHL 35; [1998] AC 382.

The Court refused the application. Mr Wells also applied to amend the Notice of Appeal to raise as a further ground of appeal the alleged failure to disclose the material described by me. Having considered the matter further, I consider that leave to amend the Notice of Appeal to raise this ground should be refused.

The history of these proceedings is a significant factor in reaching those decisions. The subpoena to the Commissioner was issued quite late in the District Court proceedings. The subpoena was much narrower in its focus than the application made to this Court. It is also clear that there was a change of tack in the argument presented to the District Court. There was some confusion, as I see it, as to just what the issues were before the District Court. In retrospect one can see that if the attack on the establishment of the BTS were to succeed, the exercise of the court's discretion was likely to involve the beliefs of the police officers involved. But before the District Court Judge, certainly at the earlier stage, interest seems to have focused on the beliefs of the police officers operating the BTS, and only at the last stage on the state of mind of the persons involved in establishing the BTS. It is also significant, to my mind, that counsel for the appellant before the District Court Judge did not apply to cross-examine the signatories to the "Operation Order". Nor was there any complaint about the range of documents produced in answer to the subpoena. Indeed, in addressing the Judge counsel for the appellant argued that the unlawful conduct at the BTS had been condoned by senior police officers, and whether they knew it was illegal or improper was irrelevant. Counsel for the Director responded that the police officers had acted in good faith. No comment or complaint was made in reply to this about the failure to produce further documents.

In all the circumstances, it seems to me unreasonable to argue that the Commissioner and the Director should have anticipated a line of enquiry which was not pursued before the District Court Judge, and which has become important only with the benefit of more mature reflection on the situation.

A further consideration, to my mind, is the fact that if the court orders production of further documents, and Mr Wells seeks to tender them on the basis that they advance his argument, fairness would require the court to allow the Director to reopen his case on the issue of the exclusion of evidence, if he sought to call explanatory evidence. In other words, to allow the application now would, in effect, be to reopen the application for the exclusion of evidence, but to do so at the appellate stage.

My view is that the Director's obligation to make disclosure has to be applied sensibly, in the circumstances of the case. In the circumstances of the present case the Director cannot be criticised for failing to anticipate that the focus would shift to the subjective purpose of those who authorised the "Operation Order". The interests of justice do not require that the court now allow this issue to be reopened.

To recapitulate, and to draw these threads together. Before the District Court Judge the initial focus was on the conduct of the police officers at the BTS, and only at the end did it shift to the purpose for which the BTS was established. It is not surprising that no attention was paid before the Judge to the issue now raised on appeal. Moreover, I have proceeded on the basis that the "Operation Order" reflects a generally held view at senior levels of the police force as to the permissible purpose in establishing a BTS. Before the Judge, counsel for the appellant made no complaint about the return to the subpoena, did not seek to call the police officers who were responsible for the "Operation Order", and eschewed a submission that their belief about the lawfulness of the establishment of the BTS was relevant. There was simply no reason for counsel for the Director to anticipate a submission that this was a relevant matter, and that disclosure of documents should be made on the basis that it was relevant.

Assuming for present purposes that the cases referred to by me support the view that there was, all along, a continuing obligation on the Director to make disclosure of documents relevant to any issue that might arise, my firm view is that it cannot be said that having regard to the manner in which the proceedings were conducted before the District Court, there has been any material irregularity. Nor can it be said that there has been a miscarriage of justice for the purposes of s 353(1) of the Criminal Law Consolidation Act. The appellant's case was conducted on a certain footing before the District Court, and the interests of justice do not now require that the appellant be permitted to depart from that basis, and to reopen the trial proceedings by reopening the enquiry into the purpose for which the BTS was established. In all the circumstances, to set aside the conviction and to order a retrial, so that the application for the exclusion of evidence could be re-agitated, would not be an appropriate exercise of the court's powers to do justice.

I add that in reaching this conclusion I have proceeded on the assumption that if the legal advice sought by Mr Wells exists, the production of it could be required. I proceed on the assumption that production could not be refused on the grounds of legal professional privilege or on the grounds that it was in the public interest to refuse production.

Near the end of the summing up, the Judge said to the jury:

"Finally, during the course of the trial, Mr Ibbotson made some comments about the possibility of the accused going to gaol. That is something that you must completely ignore, ladies and gentlemen, because it is irrelevant to your task, which is to reach a verdict by considering nothing other than the evidence presented to you in this trial. You must not allow external matters to deflect you from this task."

In evidence the appellant told the jury that he did not know that the bags found in his car at the BTS contained cannabis. He said his brother had found them by the roadside not long before the appellant was stopped at the BTS. The appellant had put the bags into his car. In answer to the suggestion that it was unlikely that anyone would have left by the roadside bags containing cannabis estimated to be worth somewhere between $20000 and $55000, the defence relied on the submission that the person who dumped the bags might have done so because that person realised that the BTS was ahead and that the person in question might be stopped and detected. On that basis there were some questions put to prosecution witnesses to the effect that a dealer transporting the cannabis would realise that he or she was at risk of imprisonment if detected. The appellant also gave evidence that he knew that a person found with the cannabis was at risk of imprisonment. In his address, counsel for the appellant suggested to the jury that the appellant's claim that he found the cannabis by the roadside was not implausible, and further suggested that if the appellant knew he had cannabis in his car, he would have tried to evade the BTS or would himself have discarded the cannabis.

That in turn led to a complaint by the Prosecutor that counsel had inappropriately introduced to the jury the issue of the penalty facing the appellant were he to be convicted. My impression is that too much was made of this at trial, and again on appeal. The Judge's direction to the jury might have been a little too blunt. But I am unable to agree that this direction would have caused the jury to put to one side, as a possible explanation, the explanation offered by the appellant for his possession of the cannabis. The Judge had reminded the jury of that explanation in a fashion that did not imply that they were to discard any aspect of it. The Judge's direction could have been more carefully expressed, but I consider it would have been understood by the jury as meaning nothing more than that they were not to take into account the possibility that a verdict of guilty might result in the appellant being imprisoned.

71. PERRY J. In my opinion, this appeal should be dismissed. I agree with the reasons given by the Chief Justice.

72. LANDER J: I agree for the reasons given by the Chief Justice that this appeal should be dismissed.