BAE v The Queen; Koo v The Queen
[2020] SASCFC 7
•30 January 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
BAE v THE QUEEN; KOO v THE QUEEN
[2020] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)
30 January 2020
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION
POLICE - RIGHTS, POWERS AND DUTIES - OTHER POWERS AND DUTIES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
Appeal against conviction and sentence.
After a trial by judge alone, both appellants were convicted of one count of trafficking in a large commercial quantity of a controlled drug, namely methylamphetamine. The appellant, Koo, was sentenced to imprisonment for 12 years with a non-parole period of seven years. The appellant, Bae, was sentenced to imprisonment for 12 years but with a non-parole period of six years.
With respect to the conviction appeal, the appellants contend that the trial Judge’s reasons were inadequate, that the Judge erred by admitting evidence of the search of the appellants’ vehicle as the police did not have the authority to detain and search the vehicle in which the methylamphetamine was located, that the Judge erred by using evidence that was only admitted on the voir dire in his reasons for decision, and that the verdict is unreasonable.
With respect to the sentence appeal, both appellants complain that the sentence of 12 years' imprisonment is manifestly excessive. The appellant, Koo, also complains that his higher non-parole period reveals an error and a departure from the principle of parity.
Held, per Kelly J (Stanley and Parker JJ agreeing), dismissing the appeals against conviction:
1. The conclusions reached by the Judge on the voir dire hearing to determine the admissibility of the search evidence were correct. The actions of police in requesting the Roadhouse operator not to supply fuel to the appellants did not amount to a detention. Even if it did, that detention was lawfully justified by the powers given to police pursuant to s 52(6) and s 52(9) of the Controlled Substance Act 1984 (SA). There was nothing unlawful or improper on the part of the police prior to the search of the vehicle to enliven the public policy discretion.
2. The overwhelming combination of the circumstances set out by the Judge in his reasons was compelling. All of the inferences the Judge drew from that evidence were open to him. Far from being inscrutable, the trial Judge’s reasons were comprehensive, thorough and plainly based on common sense inference he drew from the proven facts.
3. Although the Judge made an error by referring to the evidence concerning the police intelligence at the outset of his remarks, it is plain from the whole of his reasons that his acceptance of the prosecution case and rejection of the defence case did not rely at all on the evidence concerning the police intelligence. The remarks of the Judge in the opening paragraphs are no more than an infelicitous and inaccurate shorthand summary of the evidence led at trial. Insofar as the remarks describe the nature of the information received by the police, the Judge has erred. However, after my own review of the evidence and the reasons of the trial Judge, I am satisfied that the Judge did not used that inadmissible evidence to reasons to guilt. There has been no substantial miscarriage of justice by the incorrect reference in the first paragraph of the judgment.
Held, per Kelly J (Stanley and Parker JJ agreeing), dismissing the appeal by the appellant, Bae, against sentence, and partially allowing the appeal against sentence by the appellant, Koo:
1. With respect to the issue of parity for non-parole period, there was no relevant difference between the appellants either in terms of the objective seriousness of their offending or their personal circumstances.
2. The sentence imposed on the appellant, Koo, is interfered with to the limited extent of reducing the non-parole period from seven years to six years.
3. Otherwise, both appeals against sentence are dismissed.
Controlled Substances Act 1984 (SA) s 32(1), 52(6), 52(9), referred to.
R v Dam v Nguyen; Case State on Questions of Law (No 2 of 2015) (2015) 123 SASR 511; Police v Moukachar (2010) 107 SASR 450; R v Armistead [2019] SASCFC 85; Bunning v Cross (1978) 141 CLR 54; R v Hillier (2007) 228 CLR 618; R v Baden-Clay (2016) 258 CLR 308, applied.
R v Moar [2011] SASCFC 16; R v Young (2016) 126 SASR 41; R v Yavuz; R v Soyler; R v Bayraktur (2018) 130 SASR 231, distinguished.
R v Grant [2009] 2 SCR 353; State of New South Wales v Le [2017] NSWCA 290; Director of Public Prosecutions v Kaba (2014) 44 VR 526; Austin v United Kingdom (2012) 55 EHRR 14; Prior v Mole (2017) 261 CLR 265; R v Nguyen [2016] SASCFC 96; R v Nguyen (2015) 248 A Crim R; R v Nguyen (2013) 117 SASR 432; George v Rockett (1990) 170 CLR 104; Hussein v Chong Fook Kam [1970] AC 942; Holtham & Holtham v The Commissioner of Police for the Metropolis (Unreported, EWCACiv, 25 November 1987), discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"detention"
BAE v THE QUEEN; KOO v THE QUEEN
[2020] SASCFC 7Court of Criminal Appeal: Kelly, Stanley and Parker JJ
KELLY J.
Introduction
Following a joint trial by judge alone, both appellants were convicted of one count of trafficking in a large commercial quantity of a controlled drug, namely methylamphetamine, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘CSA’). The appellant, Koo, was sentenced to imprisonment for 12 years with a non-parole period of seven years. The appellant, Bae, was sentenced to imprisonment for 12 years but with the lower non-parole period of six years. Each appellant now appeals against their respective conviction and sentence.
Before I turn to consider the issues on appeal, it is necessary to set out a brief factual summary.
Factual summary
The days prior to arrest
On 24 August 2017, the appellants travelled on a Qantas flight from Sydney to Perth. They did not sit together. The booking for each flight was made separately on 23 August 2017. Both fares were paid for using a credit card in the name of “Youngmin Bae”. The total cost of each fare was $335.01. The flights were booked in the names of each appellant. Different mobile numbers were linked to each booking.
On 24 August 2017, a Toyota Camry sedan was hired from Hertz Perth Airport at 9.52am in the name of “Bae”. It was paid for using the same credit card as the flights. The total cost of the car hire was $1,028.98.
The car was returned to Perth Airport on 1 September 2017 at 9.32am. Thirteen minutes later that same morning, at 9.45am, a Toyota Kluger was hired from Hertz Perth Airport in the name of “Chaetok Koo”. The email address used for the booking was the same as the email address used to book the Toyota Camry on 24 August 2017. It was paid for using a different credit card to the previous hire car booking. The total estimated cost for the car hire of the Toyota Kluger was $3,096.24. As part of the costs of the rental, a fee of $1,300 was allocated for a one-way rental. The agreement was for the car to be returned to Melbourne Airport at 2pm on 9 September 2017.
CCTV depicted both Koo and Bae in attendance at Hertz on 1 September 2017, with Koo inside the office undertaking the transaction and Bae waiting outside.
On 1 September 2017 at 10.17am, Bae and Koo attended at the counter of Supercheap Auto in Cannington, Western Australia and purchased a Pioneer subwoofer speaker. It was purchased using a credit card produced by Koo at 10.19am. The purchase price was $171.52.
On 1 September 2017 at 10.48am, Koo attended at Big W and purchased two fishing rods.
On 2 September 2017 at approximately 1am, a guest in the name of ‘Tok Chae’ was registered at the John Eyre Motel in Caiguna. The distance between Perth and Caiguna is 1,110 kilometres. The registration of the vehicle attached to the booking matched that of the Toyota Kluger hired by the appellants on 1 September 2017 and the mobile phone number attached to the booking matched the mobile phone number associated with the Qantas flight booking in the name of Koo.
A booking for a one night stay in the name of ‘Chartok Koo’, via Agoda.com, was made at the Majestic Oasis Apartments in Port Augusta for 2 September 2017. The distance between Caiguna and Port Augusta is 1,351 kilometres.
The pursuit, the search and the arrest – 2 September 2017
At about 4pm on Saturday, 2 September 2017, Brevet Sergeants Carroll and Reddaway received information relating to a vehicle of interest travelling towards Yalata from the Western Australia border on the Eyre Highway. The information specifically related to the vehicle in which the appellants were travelling. Carroll and Reddaway subsequently conducted a patrol of the Eyre Highway, heading west, towards the Nullarbor Roadhouse.
The Eyre Highway traverses many hundreds of kilometres from the Western Australia border into western South Australia. Services along the highway are infrequent and there are large distances between them. Nundroo is 50 kilometres east of Yalata which is 290 kilometres east of the Western Australia border. If travelling in an easterly direction, the closest petrol station after the Nundroo Roadhouse is at Penong, some 80 kilometres away.
Carroll and Reddaway came across the vehicle some 40 kilometres west of Yalata. It was travelling east. The officers travelled past the vehicle before turning around to commence a pursuit of the vehicle. Officer Carroll contacted the Ceduna Police station to request them to contact the Nundroo Roadhouse, give them the details of the vehicle and request that they not provide fuel if the car in question stopped there.
At approximately 5pm, police arrived at the Nundroo Roadhouse and saw the Toyota Kluger in which the appellants were travelling parked next to one of the petrol pumps. The fuel flap was open and the cap was hanging out.
Bae and Koo were then sighted in the company of one of the managers of the Nundroo Roadhouse and were intercepted by police.
Police did not observe anyone within the Toyota Kluger. Police ultimately determined the identity of the appellants. The vehicle was searched. Prior to commencement of the search, police asked Koo whether there was anything in the car that shouldn’t be there. Koo responded, ‘No’.
Within the rear of the vehicle police located a speaker box amongst other luggage. The speaker box was not plugged in. The speaker box was not in any packaging. Police moved the speaker box and observed that it was heavier than expected. It was shaken and it sounded like a “muted maraca”. Police observed some damage to screws that were on the outer rim of the speaker itself, appearing that the screws had previously been removed. A screwdriver was obtained and the speaker was removed from the box. Inside the box, police located several bags of a crystalline substance which, after subsequent analysis, was determined to be methylamphetamine.
In total, there were six plastic resealable bags containing crystals weighing a total of 9.95 kilograms, containing 7.98 kilograms of methylamphetamine. At that time, a kilogram of methylamphetamine was worth $75,000 - $140,000 in street value.
Within the speaker box and amongst the methylamphetamine were two items, namely a multi-coloured pillow case and a blue towel. The crystalline substances were located on top of the pillow case and blue towel.
Police weighed the speaker box on its own (without the contents) at a later time. In total, it weighed 7.35 kilograms.
Swabs were taken of the outer and inner surfaces of each of the plastic bags containing the crystals. Each swab resulted in very low amounts or no DNA and was not analysed. A swab taken from the speaker itself resulted in a sample that could not be analysed because of an inconclusive number of contributors.
Within the rear luggage compartment of the vehicle, another pillow case was located. It was located loose in the boot amongst other luggage. The loose pillow case was of the same colour and style as the pillow case found in the speaker box.
A Supercheap Auto receipt was located within the centre console of the vehicle along with other documents which were also seized. Those other documents included tax invoices for Caiguna Roadhouse, a tax invoice for Big W, lottery tickets, and tax invoices for BP Southern Cross and BP Norseman. The Supercheap Auto receipt was in respect of the Pioneer subwoofer speaker.
Three mobile phones were also located within the vehicle. Later analysis of the phones (as well as a SIM card and an iPad also located in the vehicle) revealed no relevant content. Other personal identification items and personal items (for example clothing) were located within the vehicle. Police seized $2,102.50 in cash from Koo’s person.
Both of the appellants were arrested at the scene.
The appeal against conviction
I turn now to the issues raised on appeal. Each appellant raises the same four grounds of appeal in respect to the appeal against conviction.
The first ground is a complaint as to the adequacy of the trial Judge’s reasons for verdict.
The second ground is a complaint that the Judge erred by wrongly admitting evidence of the search of the appellants’ vehicle at the Nundroo Roadhouse.
The third ground is a complaint that the trial Judge erred by using evidence that was only admitted on the voir dire in his reasons for decision at the trial.
The fourth ground is that the verdict is unreasonable and cannot be supported by the evidence.
Grounds one and four are linked and therefore may be considered together. It is convenient to deal first with the second ground of appeal.
Ground 2 - the trial Judge erred in admitting evidence of the search of the appellants’ vehicle at the Nundroo Roadhouse
In my view, this ground of appeal raises three questions to be answered.
The first is whether the appellants were, in fact, detained. Although not formally arrested by the police until after the search of the vehicle had taken place, the question is whether the appellants were under de facto arrest from the time they arrived at the Nundroo Roadhouse (‘the Roadhouse’) on the grounds that, by their communications to the Roadhouse operator, the police had, in effect, interfered with the appellants’ freedom to move and/or deprived them of their ability to leave the Roadhouse.
If the appellants were detained, the second question which arises is whether the police officers were lawfully justified in stopping and searching the appellants’ vehicle, or in other words, was it a lawful detention and was it a lawful search. Counsel for the appellant, Bae, sought to characterise one aspect of this question as whether it was lawful for the police to issue a “direction” to the Roadhouse operator to not provide fuel to the appellants. There was no evidence to suggest that the police ever directed anybody, only evidence that they telephoned and asked the Roadhouse operator not to provide fuel to the appellant. In those circumstances, in my view, the relevant question here is whether the police conduct as a whole was authorised, that is that the police held the requisite suspicion to empower them to stop the vehicle and carry out the search pursuant to s 52(6) and s 52(9) of the CSA.
If the police were not empowered pursuant to the relevant sections of the CSA, and either the detention or the search was unlawful, then the final issue to resolve is whether the Judge erred in the exercise of the discretion by not excluding the evidence of the search of the vehicle.
Were the appellants detained?
I turn now to the issue of whether the appellants were detained in the sense that, although not formally arrested by the police, they were under de facto arrest because of the police officers’ actions in communicating to the Roadhouse operator not to serve the appellants with petrol.
The facts here are unique. The appellants were not physically restrained from leaving the Roadhouse. There was no evidence at trial that they had actually run out of petrol. The next service station was 80 kilometres away.
However, on appeal, the appellants argue that by the police communicating to the Roadhouse not to serve them with petrol, the appellants were effectively detained. In support of that submission, the appellants rely on a number of interstate and international cases. The Canadian Supreme Court in R v Grant[1] discussed the meaning of detention for the purpose of determining whether rights set out in ss 9 and 10 of the Canadian Charter of Rights and Freedoms (‘the Canadian Charter’) had been triggered by the conduct of the police.
[1] [2009] 2 SCR 353, [24].
Grant involved an encounter between a police patrol and a young black man who was walking along a sidewalk in an area (near schools) which was being monitored by police due to its history of assaults, robberies and drug offences. Two plain-clothes police officers were on patrol in an unmarked car and one uniformed police officer was patrolling in a marked car. Their task was to visit various schools in that locality to maintain a visible police presence in order to provide protection to students and deter crime during the lunch hour period. During the course of the patrol, the two plain-clothes officers passed the young black man (the accused) who was walking along the sidewalk. The officers later testified that the accused “stared” at them in an unusually intense manner and continued to do so as they proceeded down the street. At the same time, he was fidgeting with his coat and pants in a way that aroused their suspicions. The two officers determined to have “a chat with this guy and see what’s up with him”. They contacted the third officer, who got out of the marked car and initiated an exchange with the accused by asking him what was going on and requesting his name and address. The accused provided a provincial health card but continued to behave nervously and adjust his jacket, which prompted the officer to ask him to keep his hands in front of him. The two plain-clothes officers then approached, identified themselves as police and took up positions behind the uniformed officer, obstructing the way forward for the accused. After a short conversation with the accused, who admitted to carrying marijuana and a firearm, the officers arrested and searched him, seizing the marijuana and a loaded revolver.
The accused in Grant alleged that the police officers’ conduct had violated his rights under ss 8, 9 and 10(b) of the Canadian Charter. The trial Judge held that the officers’ enquiries did not amount to a search within the meaning of s 8 of the Canadian Charter, and concluded that the accused was not detained prior to his arrest or, if he was detained, he waived his rights by co‑operating with the officers’ requests.
For present purposes, the Canadian Supreme Court’s discussion of the concept of detention is pertinent:[2]
[24]The word “detention” admits of many meanings. Read narrowly, “detention” can be seen as indicating situations where the police take explicit control over the person and command obedience. Read expansively, “detention” can be read as extending to even a fleeting interference or delay. …
[2] R v Grant [2009] 2 SCR 353, [24].
As that Court observed, it is not a question which can easily be answered in the abstract. In Grant, the issue arose in the context of the accused alleging there had been a violation of his rights under ss 8, 9 and 10 of the Canadian Charter. Those sections relevantly state:
Life, liberty and security of person
…
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10. Everyone has the right on arrest or detention
(a)to be informed promptly of the reasons therefor;
(b)to retain and instruct counsel without delay and to be informed of that right; and
(c)to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
With respect to the extremes pronounced in [24] of that decision, the Canadian Supreme Court observed as follows:[3]
[25]The first extreme was rejected by this Court in R. v. Therens, [1985] 1 S.C.R. 613, which held that detention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual’s choice simply to walk away. This encompasses not only explicit interference with the subject’s liberty by way of physical interference or express command, but any form of “compulsory restraint”. A person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist” (Therens, at p. 644). It is clear that a person may reasonably believe he or she has no choice in circumstances where there has been no formal assertion of police control. Thus the first interpretation must be rejected. This comports with the principle that a generous rather than legalistic approach must be applied to the interpretation of Charter principles and avoids cramping the purpose of the protections conferred by ss. 9 and 10 of the Charter.
[26]The second interpretation of “detention”, reducing it to any interference, however slight, must also be rejected. As held in Mann, at para. 19, per Iacobucci J.:
… the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
It is clear that, while the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation.
[3] R v Grant [2009] 2 SCR 353, [25]-[26].
The answer to the question as to what constitutes detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. Relevantly, the Canadian Supreme Court went on to observe:[4]
[39]Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it. However, police investigative powers are not without limits. The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights. That the obligation arises only on detention represents part of the balance between, on the one hand, the individual rights protected by ss. 9 and 10 and enjoyed by all members of society, and on the other, the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime.
…
[41]As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer’s request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.
[4] R v Grant [2009] 2 SCR 353, [39], [41].
The ultimate conclusion of the Canadian Supreme Court was:[5]
[44]In summary, we conclude as follows:
1.Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
2.In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[5] R v Grant [2009] 2 SCR 353, [44].
The Canadian Supreme Court concluded that although the police conduct did infringe on the accused’s rights under s 9 and s 10(b) of the Canadian Charter, and although that infringement was significant, the evidence should not be excluded. In reaching that conclusion, the Court said:[6]
[140]To sum up, the police conduct was not egregious. The impact of the Charter breach on the accused’s protected interests was significant, although not at the most serious end of the scale. Finally, the value of the evidence is considerable. These effects must be balanced in determining whether admitting the gun would put the administration of justice into disrepute. We agree with Laskin J.A. that this is a close case. The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, weighing all these concerns, in our opinion the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute. The significant impact of the breach on Mr. Grant’s Charter -protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission. Unlike the situation in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the police officers here were operating in circumstances of considerable legal uncertainty. In our view, this tips the balance in favour of admission, suggesting that the repute of the justice system would not suffer from allowing the gun to be admitted in evidence against the appellant.
[6] R v Grant [2009] 2 SCR 353, [140].
This Court was also referred to two decisions closer to home, being that of the New South Wales Court of Appeal in State of New South Wales v Le[7] and the decision of Bell J in the Victorian case of Director of Public Prosecutions v Kaba.[8]
[7] [2017] NSWCA 290.
[8] (2014) 44 VR 526.
In Le, the accused was stopped by transport police at a railway station and asked to produce his Opal card. The card bore an endorsement “senior/pensioner” and the accused was asked to produce his pensioner or student concession card. He produced a pensioner concession card and was then asked for photo identification, such as a driver’s licence. He did not supply any form of photo identification but gave his date of birth when asked. There was a brief interlude while the officer checked his details over the radio and he was then told he was free to go.
Mr Le sued the State of New South Wales for false imprisonment and assault. The claim was upheld and the matter went on appeal. In the course of concluding that there was no false imprisonment, the Court of Appeal discussed the notion of detention as follows:[9]
[3]The primary judge (Dicker SC DCJ) made no finding of assault, but upheld the claim for “false imprisonment”. Although that label is conventional, both elements are, as noted by Peel and Goudkamp, misleading. There is no reason why such language should continue to be used in circumstances where it is inapt. What was involved in this case was a brief interruption of the respondent’s intended progress which might be described as a temporary detention. Detention is a concept with a range of meanings, but can be used in a sense distinct from arrest, which in turn is distinct from imprisonment and holding in custody. Detention, in that limited sense, involves a temporary deprivation of liberty.
[4]Use of appropriate language is important to the proper application of legal principle. To characterise a particular course of conduct as involving some form of imprisonment tends to focus attention on the justification for the conduct, whereas the first question in this case is to identify the nature of the alleged detention.
[5]A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual. Nor will a person be detained in a relevant sense because prevented or delayed in carrying out his or her intended course by the exigencies of everyday events, such as being caught up in a crowd. As explained in Collins v Wilcock:
Furthermore, the word ‘detaining’ can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful.
[9] State of New South Wales v Le [2017] NSWCA 290, [3]-[5].
In Kaba, the issue for determination was whether the provisions of s 59(1)(a) of the Road Safety Act 1986 (Vic) were incompatible with s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Victorian Charter’) which relevantly provided that, so far as possible and consistent with their purpose, statutory provisions are to be interpreted in a way compatible with the human rights provided for in the Victorian Charter.
The facts in Kaba were relevantly described by Bell J as follows:[10]
[1]Two young black African men were minding their own business when driving in the streets of Flemington one afternoon. Two uniformed police officers on mobile patrol stopped the driver for a random check of his licence and the registration of the vehicle. They also obtained his permission to search the vehicle.
[2]Magnus Kaba, the passenger, expressed indignant anger over the delay, left the vehicle and exercised the liberty, which we all take for granted, to walk along the footpath towards the nearby flats. While he was doing so and without suspicion of wrongdoing, the police repeatedly pressed him for his name and address, which he abusively refused to provide, protesting vehemently about racist harassment.
[3]When Mr Kaba’s abuse worsened considerably, one of the officers arrested him for using offensive language. Led handcuffed to the police vehicle, he allegedly assaulted that officer and committed other street offences for which he was charged.
[10] Director of Public Prosecutions v Kaba (2014) 44 VR 526, [1]-[3].
The rights relied on by Mr Kaba were rights to liberty as set out in s 21(1), freedom of movement as set out in s 12, and the right to privacy as set out in s 13(a) of the Victorian Charter.
Bell J concluded that while the stopping of the vehicle interfered with the liberty of the driver and Mr Kaba in a general way, it did not amount to detention.
In the course of extensive reasons for judgment, Bell J made the following pertinent observations:[11]
[110]Under the Charter, all persons possess the right to liberty as an attribute of their humanity, as they do under the common law (see above). Section 21(1) provides that “[e]very person has the right to liberty and security”, reflecting Art 9(1) of the ICCPR. In Re Kracke and Mental Health Review Board by reference to the authorities, especially Guzzardi v Italy, I explained the scope of the right to liberty and security under s 21(1) of the Charter as follows:
The purpose of the right to liberty and security is to protect people from unlawful and arbitrary interference with their physical liberty, that is, deprivation of liberty in the classic sense. It is directed at all deprivations of liberty, but not mere restrictions on freedom of movement. It encompasses deprivations in criminal cases but also in cases of vagrancy, drug addiction, entry control, mental illness etc. The difference between a deprivation of liberty and a restriction on freedom movement is one of degree or intensity, not one of nature and substance.
The fundamental value which the right to liberty and security expresses is freedom, which is a prerequisite for individual and social actuation and for equal and effective participation in democracy.
In the more recent decision of Austin v United Kingdom, the European Court of Human Rights stressed that, when deciding whether someone had been deprived of liberty:
“[T]he starting point must be [his or her] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.”
It can be seen that the difference between a restriction on freedom of movement and the deprivation of liberty in the classic sense is one of fact and degree. In the words of Lord Bingham in Secretary of State for the Home Department v JJ, “[t]here is no bright line separating the two”. The examination is necessarily fact intensive.
[Citations omitted]
[11] Director of Public Prosecutions v Kaba (2014) 44 VR 526, [110].
In the Victorian context, Bell J ultimately held that a routine check, which involves stopping a motor vehicle for a brief period, examining the licence of the driver and inspecting the vehicle from the kerbside, did not amount to physical detention of the driver or passenger such as to engage the right to liberty even though it did amount to an interference to the right of the freedom of movement of the driver.
Accordingly, his Honour found that the Magistrate erred in concluding that s 59(1) of the Road Safety Act 1986 (Vic) did not give the police officer power to stop and check a vehicle at random.
Although the decision ultimately turned on the particular relationship between s 59 of the Road Safety Act 1986 (Vic) and the Victorian Charter, the discussion in Kaba reinforces the necessity to consider the particular factual and statutory context in which the conduct of the police is to be assessed when determining whether their conduct amounts to detention in the legal sense.
As the European Court of Human Rights observed in Austin v United Kingdom,[12] the difference between a restriction on the freedom of movement and the deprivation of liberty in the classic sense is one of fact and degree.
[12] (2012) 55 EHRR 14.
Here, although the mere refusal to serve petrol to the appellants did not, in my view, amount to detention, the fact that it occurred at an infrequent road stop in the middle of the Nullarbor Plain, far from any other fuel outlet, did mean that the appellants were effectively only free to travel on until they ran out of petrol. However, this is probably academic as the evidence on the voir dire established that the police had also requested the next service station at Penong, some 80 kilometres away, to refuse petrol to the appellants. In reality, the appellants were stranded in the middle of the Nullarbor Plain.
In these circumstances, I consider the crucial issue is whether the conduct of the police, from the time that they contacted the Roadhouse to the time of the search, was lawful.
Did the police have the lawful authority to detain and search the vehicle?
Counsel for Bae, Mr Handshin, submitted that in light of the evidence of the two police officers, who expressed the view that they did not have enough suspicion to justify a search pursuant to s 52(9) of the CSA, the threshold requirement in that subsection which triggered its operation could not therefore be met.
In making this submission, counsel for Bae relied on what fell from Kiefel J (as she then was) and Bell J in Prior v Mole:[13]
The principles governing the exercise of a power that is conditioned on the existence of reasonable grounds for belief are not in question. The lawful exercise of the power conferred by s 128(1) required that Constable Blansjaar in fact hold each of the beliefs referred to in sub-s (1)(a) and (b) and one or more of the beliefs referred to in sub-s (1)(c) and that the facts and circumstances known to Constable Blansjaar constituted objectively reasonable grounds for those beliefs. Proof of the latter requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief. This is not to say that it requires proof on the civil standard of the existence of that matter. Facts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture.
[Citations omitted]
[13] (2017) 261 CLR 265, [4].
The Court was also referred to a number of decisions of this Court between the years of 2013 and 2016. In particular, counsel for the appellant relied on what fell from this Court in R v Nguyen:[14]
The requirement of a reasonable suspicion under these subsections entails satisfaction both that the relevant police officer held the suspicion at the time he or she decided to carry out the search, and that the suspicion was (objectively) reasonable given the facts and circumstances then known to that police officer.
[14] [2016] SASCFC 96, [24].
Counsel also relied on the following passages of R v Nguyen:[15]
[25]In her evidence-in-chief extracted at [9] above, Detective McFarlane unequivocally said that she formed enough suspicion to pull over the vehicle, that she intended to search the vehicle and the driver and that she was intending to conduct those searches under the Act. There was no basis for the judge to infer that the decision was made jointly with Constable Munn. This is inconsistent with Detective McFarlane’s evidence. Detective McFarlane was driving the police vehicle, was senior in rank and the more experienced officer. Detective McFarlane, was a detective and held a general search warrant. These matters all confirm that Detective McFarlane made the relevant decision. Since the decision to detain and search the Commodore and driver was made by Detective McFarlane, the relevant question was whether Detective McFarlane held the requisite reasonable suspicion and it was not directly relevant whether Constable Munn held such a suspicion.
…
[27]While the ultimate onus of proof lay on the appellant who was seeking to exclude the admission of evidence in the exercise of the Court’s discretion, in circumstances in which the lawfulness of the search was challenged and Detective McFarlane alone could give evidence of her state of mind, an evidential onus lay upon the Director to adduce evidence that Detective McFarlane at least suspected that there were drugs in the vehicle — to justify the detention and search of the vehicle — and drugs in the possession of the appellant — to justify the search of the appellant. That evidential onus was not discharged by the Director.
[28]The fact that Detective McFarlane articulated her suspicion in terms of its being “enough” to justify detention and search is evidence that she did not address her mind to the requisite questions whether she reasonably suspected that there were drugs in the vehicle and there were drugs in the possession of the appellant.
…
[37]On the other hand, as noted above, Detective McFarlane did not address her mind to the relevant question whether she held a reasonable suspicion that there were drugs in the possession of the appellant at the time she was driving the Commodore. Her conduct in detaining and searching the Commodore and the appellant demonstrated a fundamental misconception about the state of mind she was required to form as a prerequisite to exercising those powers. Her focus was upon the house and the vehicle as having a general or historic association with drugs and not upon the appellant as an individual. It was the appellant’s civil rights as an individual that were infringed.
[Citations omitted]
[15] (2015) 248 A Crim R 398; [2015] SASCFC 7, [25], [27]-[28], [37].
Finally, in R v Nguyen:[16]
[21]A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[22]Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[Citations omitted]
[16] (2013) 117 SASR 432, [21]-[22].
In these passages, I do not understand this Court to have enunciated a different test to that articulated in the many earlier authorities in respect of the same section.
When the Court referred to the fact that s 52(6) and s 52(9) of the CSA require more than an actual suspicion in the sense that a police officer must not only suspect but “reasonably suspect”, I do not consider the Court to be saying anything further than that the requisite suspicion must be a suspicion actually in the mind of the police officer purporting to rely on those subsections and it must be a relevant suspicion in the sense that it must relate to the requirements of the section that the search will afford evidence that the person is in possession of a substance or the vehicle will contain a substance or equipment in contravention of the CSA.
In my view, the Court did not hold that a suspicion in the mind of a police officer must meet a higher threshold than the requirement that, when judged objectively, the suspicion is reasonable.
In R v Dam and Nguyen; Case Stated on Questions of Law (No 2 of 2015),[17] Vanstone J reiterated, with regard to the requirement of reasonable suspicion, a number of statements made in earlier authorities such as George v Rockett.[18] Her Honour said:[19]
[34]I turn to the search of the van and its occupants. The powers of police given under s 52 of the Controlled Substances Act 1984 (SA) (the CSA) to stop and search a vehicle, and to seize evidence of an offence against that Act, are given where the police officer reasonably suspects that a substance or equipment that would afford evidence of an offence against that Act is in the vehicle: s 50(9) of the CSA. In addition a police officer may search any person whom he reasonably suspects has in his possession any substance or equipment in contravention of the Act: s 50(6) of the CSA.
[35]The concept of reasonable suspicion was discussed by the High Court in George v Rockett (1990) 170 CLR 104. It was pointed out that suspicion and belief are different states of mind. The Court referred to the statement by Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948 that suspicion “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”. The Court observed that facts capable of grounding a reasonable suspicion might be quite insufficient to reasonably ground a belief. The Court also quoted with approval the statement of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.”
This Court discussed the same concept in R v Nguyen (2013) 117 SASR 432. The Court consisting of Kourakis CJ, Blue and Stanley JJ said at [21]:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
The Court then discussed the requirement that the suspicion be reasonable. It said at [22]:
The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information.
[17] (2015) 123 SASR 511; [2015] SASCFC 131.
[18] (1990) 170 CLR 104.
[19] R v Dam and Nguyen; Case Stated on Questions of Law (No 2 of 2015) (2015) 123 SASR 511; [2015] SASCFC 131, [34]-[35].
As Vanstone J pointed out in Dam and Nguyen, both the earlier two Nguyen cases[20] turned on their own facts. The suspicions of each police officer in each case were of a general nature only.
[20] R v Nguyen (2013) 117 SASR 432 and R v Nguyen (2015) 248 A Crim R 398; [2015] SASCFC 7.
Importantly, none of these authorities purport to depart from the well-known statement in George v Rockett.[21]
[21] (1990) 170 CLR 104.
In Hussien v Chong Fook Kam,[22] the Privy Council said:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.
[22] [1970] AC 942, 948.
In the matter of Holtham & Holtham v The Commissioner of Police for the Metropolis,[23] the Court of Appeal disapproved of a trial Judge’s direction to himself. That direction was in the following terms:
But the statute requires them to have reasonable grounds for suspicion, and that, in my view, is something a good deal more than suspicion. At the beginning of a murder case like this the police must have a number of people whom they may suspect and whom they gradually eliminate; but here before they arrest they have to have reasonable grounds for suspicion.
[23] (Unreported, EWCACiv, Master of the Rolls (Sir John Donaldson), Lord Justice Nicholls, Mr Justice Caulfied, 25 November 1987).
In allowing the appeal, the Court held:
With all respect to the learned judge, I do not think that this is a correct statement of the law. As it was put by Lord Devlin in Hussien v Chong Fook Kam (1970) AC 942 at 948 “Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” Suspicion may or may not be based upon reasonable grounds, but it still remains suspicion and nothing more. By applying a test of something which was not suspicion but was “something a good deal more than suspicion”, I think that the learned judge erred and that this error was fundamental to his conclusion.
The point to be made arising out of these observations is that s 52 of the CSA does not require anything other than that the police officer hold a relevant suspicion and that that suspicion is objectively reasonable. It does not dictate that any threshold be reached by requiring the strength of the suspicion to be assessed on some sliding scale.
The fact is that both police officers did hold a relevant suspicion. A suspicion either exists or it does not. As the Court of Appeal held in Holtham, regardless of whether a suspicion is based on reasonable grounds, it remains a suspicion and nothing more. It may be weak or strong or something in between, however, while the strength of the suspicion held may shed light on whether it is reasonable, there is nothing in s 52(9) of the CSA which sets a threshold for the degree of suspicion which must be in the mind of the police officer other than that it must be objectively reasonable. Section 52(9) of the CSA is triggered when a police officer holds a suspicion which is objectively reasonable, that is, a reasonable person in possession of the same information as the police officer would entertain the same suspicion.
When analysed in this way, it is obvious that the fact that the police officers held differing views as to whether they had the requisite suspicion to rely on s 52(9) of the CSA is not determinative. Both officers clearly stated that they had begun to suspect and the second officer said he wanted to speak with the appellants to “bolster” the suspicion that he held.
Their opinion of whether that suspicion was sufficient to trigger s 52(9) of the CSA was as irrelevant as the detective’s opinion in R v Nguyen[24] that she did have sufficient suspicion to justify a search.
[24] (2015) 248 A Crim R 398; [2015] SASCFC 7.
With those principles in mind, it is necessary to turn to consider the information which the officers actually held at the time when they passed the appellants’ vehicle on the highway.
They had received information via an email from a colleague, Brevet Sergeant Lovell of the Ceduna Police Station, containing a further email from a Senior Western Australia Police Officer, Superintendent Grant, which in turn attached information from the Australian Criminal Intelligence Commission.
The information contained in those communications was as follows:[25]
[25] VDP 2.
From: Lovell, Christopher (SAPOL)
Sent: Saturday, 2 September 2017 3:31 PM
To: Raven, Paul (SAPOL); Komoll, Nicholas (SAPOL); Perchard, Anthony (SAPOL); Reddaway, Ashley (SAPOL); Carroll, John (SAPOL)Subject: FW: Information Report
All,
Have a look at the attached. From Supt. GAUNT WAPOL
Suggest we need to stop and search this vehicle.
Cheers,
LOVELL
From: GAUNT Darryl …
Sent: Saturday, 2 September 2017 3:26 PM
To: Lovell, Christopher (SAPOL)
Cc: LEEKONG Dene …Subject: Information Report
…
Chris,
As per our conversation please find attached Intelligence Report for a Silver Toyota Kluger 1HY3CX (Vic). Vehicle appears on vision as possibly dark blue in colour.
The vehicle passed through the WA/SA Border checkpoint as 1300 hours (Western Standard Time) or 1430 hours (South Australia time).
The vehicle is heading east believed bound for Melbourne and at current speed is likely to be at Nullarbor Roadhouse any time from approx. 1530 hours (SA time).
Intelligence indicates the occupants left Perth after midday Friday 1 September and have travelled from Perth to the WA/SA Border over about a 22-24 hour period.
Eucla police have patrolled the Border Village Roadhouse and Caravan park and confirm the vehicle is not there. They are currently patrolling east on the Eyre Highway however unless the target vehicle stops they are unlikely to intercept before it comes into contact with SA Police.
As well as your own efforts can you please advise the Checkpoint at Ceduna, Penong and Yalata Police to search for the vehicle on the Eyre Highway.
Eucla Police will also notify Nullarbor Roadhouse (SA).
The attached Intelligence Report is provided for your information and can’t be distributed to other parties.
The document can be shared with Ceduna, Penong and Yalata Police for their information.
Regards and thanks for your assistance
Darryl Gaunt APM …
The Information Report from the Australian Criminal Intelligence Commission dated 1 September 2017 contained the following information:[26]
… Chae Tok KOO (m) 4/MAY/1988 and Youngmin BAE (m) 25/MAY/1988 to drive from Perth to Melbourne.
[26] VDP 3.
Date information received
Friday, 1 September 2017
Source grading
B – Usually reliable
Information grading
2 – Probably true
INFORMATION RECEIVED
1.On 1 September 2017, Australian Criminal Intelligence Commission (ACIC) received information that two individuals [redacted] planned to drive from Perth to Melbourne. …
…
3.The individual requested a Toyota Kluger vehicle or similar. …
4.The booking details provided [redacted] the name Chae Tok KOO with mobile telephone number 04*****707. The address provided [redacted], and email address [redacted]. …
…
ACIC COMMENT
5.Further research conducted has identified the two individuals likely to be Chae Tok KOO (m) 04/MAY/1988 (KOO) and Youngmin BAE (m) 25/MAY/1988 (BAE). …
6.Both individuals hold South Korean passports and also hold NSW drivers licences. …
…
11.The current vehicle assigned to KOO and BAE is 1HY3CX (VIC) Grey 2016 Toyota Kluger Station Sedan. The vehicle is due to be returned to the Melbourne airport depot on 9 September 2017. …
12.Two mobile telephone numbers [redacted] – 04*****707 and 04*****007. …
…
18.It is suspected that the sole purpose of hiring and driving vehicles between states is to transport large quantities of cash or drugs. …
…
The information contained in those documents could hardly have been more specific nor could it have come from a more reputable source. Brevet Sergeant Lovell certainly thought as much, as his instruction to the police officers concerned was “suggest we need to stop and search this vehicle”.
On the information conveyed to Brevet Sergeants Carroll and Reddaway, they were entitled to act on the suspicion that they said was already forming in their minds as it was plainly reasonable. It is my view that they were therefore entitled, on the basis of that suspicion, to stop the vehicle and to search it.
I turn now to consider whether the police conduct in questioning the appellants and in requesting that the Roadhouse operator refuse the provide the appellants with petrol was lawful. In this respect, it is necessary to state a number of propositions which are not controversial. In Kaba, Bell J relevantly observed:[27]
[459]It is clear from the authorities that I have discussed that people are not immune from contact with police in public places. The ordinary power of police to ask questions is an important means by which they can fulfil their duty to prevent crime and protect the community. Up to a certain point, police questioning of individuals does not interfere with their rights and freedoms at common law. The line of permissible questioning is crossed when the questioning becomes coercive, that is, when the individual is made to feel that he or she cannot choose to cease co-operating or leave, judged by reference to how a reasonable person would feel in the circumstances.
[27] Director of Public Prosecutions v Kaba (2014) 44 VR 526, [459].
Police are entitled to co-opt the assistance of the public. In Kaba, Bell J stated:[28]
[69]It is recognised that, in the performance of these duties and without reasonable grounds of suspicion, police might exercise their ordinary capacity to ask questions of and seek co-operation from persons in reliance upon every citizen’s “moral duty, or … social duty to assist the police”, to use the words of Lord Parker CJ in Rice. As was held in R v Grant by McLachlin CJ and Charron J, “[e]ffective law enforcement is highly dependent on the co-operation of members of the public. The police must be able to act in a manner that fosters this co-operation, not discourage it”.
[70]Likewise, in R v Grafe, which was approved in Grant, it was held by Martin, Tarnopolsky and Krever JJA that the human rights in the Canadian Charter of Rights and Freedoms did “not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be”. So, at common law, it is not a deprivation of liberty for police to attract a person’s attention by touching him or her on the shoulder or arm. But it is a deprivation of liberty for police to grab someone by the arm; that could only be legitimate for the purposes of a lawful arrest.
[71]It is not presumed that a person is coerced simply upon being questioned by a police officer in uniform. That is so even though, as was held by Robert Goff LJ and Mann J in Collins v Wilcock, the “advantage of authority” enjoyed by police is deliberately enhanced by “the uniform which the state provides and requires” them to wear. But, as Le Dain J explained in R v Therens:
Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.
Therefore, when drawing the line between the voluntary and the coerced, it is necessary to take into account the imbalance of power between police, especially when in uniform, and ordinary members of the community, as well as the psychological impact of apparent police authority. Barwick CJ adverted to this consideration in Bunning where he held that, “in deciding whether … willingness was uncoerced, it is proper to remember the apparent authority” of police and the situation of the citizen.
[Citations omitted]
[28] Director of Public Prosecutions v Kaba (2014) 44 VR 526, [69]-[71].
In this State, it is not necessary to go further than this Court’s statements in Police v Moukachar,[29] R v Dam and Nguyen; Case Stated on Questions of Law (No 2 of 2015)[30] and R v Armistead.[31]
[29] (2010) 107 SASR 450.
[30] (2015) 123 SASR 511, [26], [33], [41], [43]-[44] (Vanstone J, Kelly J and David AJ agreeing).
[31] [2019] SASCFC 85, [89] (Hinton J, Kelly and Stanley JJ agreeing).
As Vanstone J observed in Moukachar, “a police officer is entitled to ask questions of an individual. He does not need statutory authority to do so”.[32]
[32] Police v Moukachar (2010) 107 SASR 450, [13] (Vanstone J).
In the present case, there was no evidence that the police coerced the Roadhouse operator other than making a simple request that he not supply the appellants with fuel.
Both police officers acknowledged that they were not acting in pursuance of any statutory authority to make any demand.
The appellants were responsive to the questions asked of them by the police officers. There is no suggestion they were not. In these circumstances, I consider there was nothing unlawful or improper on the part of the police prior to the search of the vehicle.
It follows that, in my view, the police had the power to search the vehicle as soon as they arrived at the Roadhouse. They had that power pursuant to s 52(9) of the CSA.
If I am wrong and, contrary to the conclusion which I have reached, the police conduct was either unlawful or improper, it would then be necessary to consider whether, in all of the circumstances, the Judge was correct to conclude that the evidence of the search should not be excluded in the exercise of the discretion.
Did the Judge err in admitting the search evidence?
The appellants submitted, in accordance with the principles established in Bunning v Cross,[33] that the trial Judge should have exercised the discretion to exclude the evidence on the basis that the police had effectively sought to enlarge their powers by co-opting members of the public as surrogate police officers.
[33] (1978) 141 CLR 54.
The fact that there was some evidence to suggest that the same procedure had been adopted by other members of the police force in unrelated matters on previous occasions was said to be an added reason why this Court should mark its disapproval of the police conduct in requesting the Roadhouse operator to deny fuel to the appellants.
I cannot accept that submission. In the first place, the difficulty with the submission is that it depends on a characterisation of the police conduct as unlawful or, at the very least, improper.
Here, there is no evidence to suggest that the police deliberately set out to flout the limitations of their search powers. Indeed, the evidence points to the contrary. The two police officers concerned went to considerable lengths to ensure that they did not exceed the extent of their powers as they understood them. It is apparent from their evidence on the voir dire that both police officers conducted themselves in a careful and cautious manner. The fact that they may have been excessively cautious about exercising their powers (which I have found they undoubtedly had) to search the vehicle, when considered in the context of the surrounding circumstances in which they had that misunderstanding, is a factor which weighs in favour of admitting the evidence not excluding it. There was nothing egregious about the actions of the police.
Furthermore, if, contrary to my view, it was a detention, then that detention was of the most technical nature and of very short duration. Once again, there was no physical force or physical compulsion exercised by any of the police officers to restrain the appellants from getting in their car and leaving.
The evidence found inside the vehicle as a result of the search was of substantial probative value. Without it, the prosecution would have been unable to prove the very serious offences against the appellants. The information upon which the police acted was cogent, reliable and specific.
In my view, the conclusions reached by the Judge on the voir dire hearing to determine the admissibility of the evidence were correct. I do not consider that the actions of the police in requesting the Roadhouse operator not to supply fuel to the appellants did amount to detention. Even if it did, in my view, the detention was lawfully justified by the powers given to the police pursuant to s 52(6) and s 52(9) of the CSA. In all of the circumstances, I am not prepared to say that the conduct of the police, whether technically unlawful or not, was either improper or of such an egregious nature that this Court should find that the trial Judge ought to have exercised the discretion to exclude the evidence. To the contrary, considerations of public policy in all of these circumstances favour admission of the evidence.
I would dismiss this ground of appeal in respect of both appellants.
Grounds 1 and 4 - adequacy of trial Judge’s reasons and unsafe, unsatisfactory verdict
The first and fourth grounds of appeal are to some extent related and it is convenient to deal with them both together.
The essential complaint made in respect of both of these grounds, is that the evidence was not sufficient to exclude, as a reasonable possibility, that the appellants were only knowingly couriering an item other than a controlled substance, namely cash. The appellants complain that the Judge’s reasoning to a conclusion beyond reasonable doubt that both appellants knew they were transferring drugs as opposed to some other illicit commodity, such as cash, and his rejection of the defence case are inscrutable and to that extent his reasons are inadequate. For that reason, the appellants contend that the trial Judge must have had a doubt and that the verdict is therefore unreasonable.
To a large extent, the submissions of the appellant, Koo, reflected the submissions made on behalf of the appellant, Bae, and I shall treat them as submissions jointly made.
Essentially, the appellants submit that the evidence was incapable of excluding, as a reasonable possibility consistent with innocence, that the appellants were carrying something other than drugs.
The appellants point to the paucity of evidence about when, how and who sourced and secreted the drugs in the speaker box, the absence of any forensic evidence linking the appellants to the plastic bags in which the drugs were concealed, the absence of any screwdriver in the vehicle at the time of the police search (and thus the apparent unavailability of any means to have secreted or retrieved the drugs from the speaker box), the unusually transparent manner in which the appellants went about their travel plans, and the purchase and hire of various items without any endeavour to conceal their identities and leaving an obvious trail of their involvement. Thus, the appellants both contended that the evidence did not establish, or permit the inference to the exclusion of all others, that the appellants were involved in the sourcing of the drugs, that the appellants were involved in or present for the packing of the drugs, or that it was only the two appellants who had access to or physical custody or control of the speaker box between 10.19am on 1 September 2017 when the speaker box was purchased and approximately 5pm on 2 September 2017 when the police searched the speaker box.
Further, the appellants submitted that the trial Judge’s findings did not identify how the Judge had reconciled the fact that there was an absence of any evidence as to:
·when, or from where, the drugs were sourced;
·who disassembled the speaker and secreted the drugs in it (and when this would have occurred), particularly in light of the fact that no screwdriver was found in the motor vehicle in which the appellants were travelling;
·exclude the possibility that in the 30 hours between the time the speaker was purchased on 1 September 2017 and the time when the appellants were apprehended on 2 September 2017, that the person or persons on whose behalf the appellants were said to be couriering the drugs, had access to and secreted the drugs without the appellant and Koo knowing of or being reckless as to the identity of the substance they were transporting.
In support of that submission, the appellants pointed to the evidence of Detective Lea which was said to support an inference that, as couriers, the appellants would likely have known very little about the transaction they were allegedly involved in, in order to insulate the risk for those occupying higher positions in the syndicate. The appellants contend that the evidence demonstrates there was a substantial period of time between the purchase of the speaker box and the search on 2 September 2017 in which the whereabouts of and circumstances in which the appellants and the speaker box were travelling were simply unknown. This was said to be an important aspect of the evidence in respect of which the prosecution was simply unable to exclude, as a reasonable possibility, that the two appellants were innocent couriers.
Further, the appellants contended that the fact that the pillow case found inside the speaker matched the one that was located loose in the boot of the vehicle was not capable of advancing the prosecution case in the absence of any evidence as to who secreted the drugs within that speaker. The appellants submitted that the presence of the matching pillow cases arguably spoke against the appellants having knowledge of what was inside the speaker as it beggars belief that a person would keep such an incriminating item in plain sight that could link the appellants to the contents of the speaker. Finally, the appellants pointed to the fact that neither of them made any attempt to conceal the fact of the trip. They submit that the arrangements they made in connection with their travel tells against any inference that they had knowledge of what was contained inside the speaker.
In support of his submission that the trial Judge’s reasons were inadequate, the appellant, Bae, pointed to two paragraphs in the Judge’s reasons as evidence of the Judge’s failure to grapple with the defence case and that the Judge had adopted an approach which involved a misapplication of the burden of proof:
[62]Whilst there was a small hypothetical window of opportunity for someone else to put the drugs where they were, there was virtually no opportunity for someone to do that without the accuseds’ knowledge. How would that other person have accessed the hire car without the accuseds’ knowledge? How would that other person have taken the speaker box away and packed the drugs into it and replaced it, now unwrapped, now at double the weight, without the accuseds’ knowledge? In any event it was plain to the accused that the speaker box in their vehicle, which they had just purchased, had been unwrapped, packaging discarded, with damage to the screws indicating it had been disassembled, and was now over double the weight of the empty box, and was now somehow back in their vehicle.
[63]It’s extremely unlikely that it would have been done by any third party without the full knowledge of the two couriers, for any number of reasons.
[Emphasis in original]
The appellant, Bae, complained that in those paragraphs the Judge had effectively reversed the onus of proof by requiring the appellant to demonstrate that it was likely that the drugs would have been packed by a third party rather than posing the correct question which was whether the evidence as a whole excluded the reasonable possibility that the drugs could have been packed by someone else without the appellant knowing what it was that was packed.
The appellants argue that the combined failure of the trial Judge in respect of reversal of the onus of proof and his failure to explain how he was able to differentiate knowledge of the drugs from knowledge of an illicit commodity rendered the verdict inscrutable and the reasons therefore inadequate.
The appellants argue that the necessary link between the Judge’s intermediate findings concerning the purchase of the speaker box, the chronology of events, the discovery of the drugs at the Roadhouse and his conclusion that the appellants knew that they were transporting drugs, was never identified in the reasons.
In order to assess the validity of that submission, it is necessary to look at the trial Judge’s reasons as a whole.
The trial Judge’s reasons
In his reasons, the trial Judge correctly identified the well settled principles which apply to the assessment of evidence in a circumstantial case. The most fundamental of which is that a tribunal of fact cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable possibility other than guilt.
It is evident that the two impugned paragraphs, [62] and [63], were observations made in the course of giving extensive and detailed reasons for the findings of fact which the Judge made and from which he drew the inference of guilt in respect of each appellant.
The appellants’ submission in this respect invites a piecemeal approach to the evidence at trial and to the assessment of the reasons of the Judge. It is not correct to approach any analysis of the evidence in a case relying on circumstantial evidence in that way. Neither at trial nor on appeal is a circumstantial case to be considered piecemeal:[34]
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: …
[Citations omitted]
[34] R v Hillier (2007) 228 CLR 618, 638 [48].
Similarly, in R v Baden-Clay[35] the High Court of Australia said:
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
[Citations omitted, emphasis in original]
[35] (2016) 258 CLR 308, 324 [47].
It is evident from the Judge’s reasons, that he well understood the task he was required to undertake.
The two paragraphs complained of were, in fact, part of the Judge’s reasoning as to why he ultimately rejected the defence case. It was one of many different aspects of the evidence on which the Judge relied to reject, as he did, as a reasonable possibility, that the drugs were packed by an unknown third party without the knowledge of the appellants.
In drawing the inferences from the facts in this case, the Judge, like a jury, was entitled to exercise common sense in analysing the import and effect of the combined circumstantial case. Importantly, he was entitled to view the defence hypothesis against the background of the whole of the prosecution case, which was that the appellants knew, or were at least reckless to the fact, that they were couriering an illegal drug.
That case was based on strands of circumstantial evidence which included:
1. The fact that the appellants were directly linked to the speaker box which was used to conceal the drugs. The speaker box was purchased at 10.19am on 1 September 2017 from Supercheap Auto in Cannington, Western Australia. Both appellants were depicted on the CCTV footage making the transaction. The receipt for that purchase was located by the police in the centre console of the vehicle.
2. At the time of purchase, the speaker was seen to be in its original packaging. When the police located the speaker in the vehicle later, it was not in its packaging. The obvious inference is that in the intervening period between 10.19 am on 1 September 2017 and 5pm on 2 September 2017, when the appellants were apprehended, the packaging had been removed.
3. The purchase of the speaker by the appellants was specific in its size and capacity to be easily modified to conceal. It was not plugged in or being used in any apparent way for the purpose for which it was designed when located by police. It was a highly specific item for the appellants to have purchased and it was available from any Supercheap Auto interstate, including locations in Sydney and surrounding areas.
4. When located by police, the methylamphetamine was securely packaged in plastic resealable bags which were fitted within the speaker with precision.
5. The methylamphetamine was packed in clear plastic resealable bags, clearly visible for the person packing them and easily identifiable for any person who accessed the internal cavity of the speaker box.
6. The methylamphetamine was packaged on top of two items, namely a multi‑coloured pillow case with a distinctive pattern and a blue towel. The multi‑coloured pillow case was identical to a loose pillow case located in the rear of the vehicle amongst the appellants’ luggage, close to where the speaker was located.
7. The appellants purchased the speaker at 10.19am on 1 September 2017, the day they left Perth. At approximately 1am on 2 September 2017, the appellants registered at the John Eyre Motel in Caiguna, Western Australia. Caiguna is located 1,110 kilometres away from Perth. The appellants then travelled from Caiguna to the Nundroo Roadhouse where they were apprehended by police at approximately 5pm on 2 September 2017. Thus, the timeline between purchase of the speaker and the search and arrest at the Roadhouse was a limited window.
8. The difference in the weight of the speaker prior to and after the concealment of the drugs was significant. Prior to the drugs being placed inside the speaker, the speaker weighed 7.35 kilograms. The drugs weighed approximately 10 kilograms, making it likely that the speaker with the drugs, towel and a pillow case concealed inside weighed approximately 17.5 kilograms. It was plain from the footage of the transaction at Supercheap Auto in Western Australia, that both appellants appreciated the weight of the speaker box because they each took a turn to lift it. The speaker with the methylamphetamine included, when shaken, sounded to the police officer concerned like a “muted maraca”. Had the speaker been filled with cash, it is inherently unlikely that 10 kilograms would have fitted into that space or made that sound.
9. The methylamphetamine was easily able to be detected by anyone by the removal of the speaker with a screw driver. Damage was observed to the screws on the speaker box indicating that this was the method which had been used to secrete the drugs. A screw driver is a highly small and portable item.
10. The extent of the appellants’ travel arrangements was significant. They travelled across Australia from Sydney to Perth. Both air tickets were one way tickets purchased the day prior to the appellants’ flights from Sydney to Perth, with both accused sitting in the same row of the flight but not next to each other. The total cost was $670. Upon returning their hire car to Perth airport one week later, both appellants chose to hire a different vehicle, this time in the other appellant’s name, for the purpose of spending at least three days and over $3,000 to drive back to the eastern states. The itinerary of the appellants, as revealed by the evidence, indicated that there were no plans to stop, fish or holiday along the way, notwithstanding the fact that the appellants purchased brand new fishing rods as they departed Perth on the last of the seven days they spent there. The appellants had booked into a motel at Port Augusta on the night they were arrested.
11. There was no apparent logical reason for removing the speaker box from its protective commercial wrapping if it was not to be used on the journey across Australia. The appellants were in sole possession of the speaker box when it was purchased at 10.19am on 1 September 2017 and in sole possession of the speaker box when they were apprehended the following day at the Roadhouse where the speaker was found to contain the drugs.
It was against that background that the Judge assessed the defence case. The claimed transparency of the travel plans was to be viewed in light of the fact that the appellants purchased two new fishing rods, which remained unused in the vehicle. The inference the Judge drew was that the fishing rods were part of a plan to conceal the real reason for driving across Australia in the event that they were subject to scrutiny or surveillance in the course of the journey. That inference was plainly open to the Judge.
After making the findings of fact beyond reasonable doubt, the trial Judge then went on to draw what might be seen as common-sense inferences from the combination of that evidence.
This was not the kind of case which required any lengthy, sophisticated or subtle analysis. The overwhelming combination of the circumstances set out by the Judge in his reasons was compelling. All of the inferences the Judge drew from that evidence were open to him. Far from being inscrutable, the trial Judge’s reasons were comprehensive, thorough and plainly based on common sense inferences he drew from the proven facts.
In my view, there is no substance in the complaint that the reasons were inadequate, or that the evidence was not sufficient to satisfy the trier of fact beyond reasonable doubt of the appellants’ guilt.
I would dismiss these grounds of appeal in respect of both appellants.
Ground 3 – Did the Judge err by relying on evidence not admitted at the trial
I turn now to deal with ground 3, the complaint that the trial miscarried by reason of the Judge relying on evidence not admitted at the trial about the state of police knowledge of the appellants’ activities.
This complaint arises from a reference in the introductory paragraph of the Judge’s reasons for verdict:
Introduction
1On 2 September 2017 police patrolling the Eyre Highway west of Yalata were looking out for a Toyota Kluger SUV with a particular registration number. They had intelligence that two men in possession of large quantities of illicit drugs and/or cash were likely to be travelling eastwards in that vehicle. They located the vehicle and the accused at the Nundroo Roadhouse, searched the vehicle and located nearly 10 kilograms of methylamphetamine.
The reference to the “intelligence that two men in possession of large quantities of illicit drugs and/or cash” was said to be particularly damaging because the report from the Australian Intelligence Commission did not make any suggestion that the two men were in fact in possession of the drugs. Therefore, the appellants submit that the Judge both misstated the effect of that evidence and elevated its significance to a level it ought not to have been given.
Despite the Judge stating in his reasons admitting the evidence of the search, following the voir dire hearing, that he would not use any evidence or findings of fact made on the voir dire for the purposes of the trial, the reference in the first paragraph of the reasons for verdict indicates the contrary.
The appellants complain that there is a substantial risk that in analysing the evidence at trial, and in particular when assessing the defence case, the trial Judge’s view was coloured by the evidence he referred to in the opening paragraph which suggested that the police were aware that the appellants were transporting drugs or cash. Given the subsequent finding of drugs, it was argued that the trial Judge may well have inadvertently treated the evidence referred to in paragraph one as evidence supporting an inference that the appellants knew of the presence of drugs in the vehicle.
Both appellants argued that the reference to the evidence on the voir dire constitutes an error of law and/or that it has resulted in a miscarriage of justice.
Both appellants submitted that if this Court cannot be persuaded that the resolution of this central issue at trial was not materially affected by the reference to the evidence on the voir dire in the opening paragraph of the reasons, then the appeal must be allowed.
It may be accepted, as the case of R v Moar[36] illustrates, that reference to matters admitted in the hearing of pre‑trial applications in determination of the trial itself, can lead to a miscarriage. The facts in Moar are illustrative of a case where reference to such material did lead to a miscarriage of justice. In Moar, the trial Judge, sitting alone, relied on medical reports which were tendered in respect of a number of pre‑trial applications but which were not tendered at the trial. This Court, on appeal, concluded that the Judge’s error in referring to medical reports not tendered at trial was compounded by his apparent use of them to make adverse findings against the accused. The Court, having looked at the medical reports for itself, concluded that they contained material of real significance to be weighed in respect of the issue of the accused’s memory. The Judge did not explain how he had used that material, however, it was apparent that he had regard to it. In those circumstances, the Court was satisfied that there was a risk that there had been a miscarriage of justice and ordered a re‑trial.
[36] [2011] SASCFC 16.
Here, the situation is somewhat different. Although the Judge made an error by referring to the evidence concerning the police intelligence at the outset of his remarks, it is plain from the whole of his reasons that his acceptance of the prosecution case and rejection of the defence case did not rely at all on the evidence concerning the police intelligence. Indeed, the reference to the police intelligence was not as stark as it might have been in light of the evidence elicited from one of the two police officers concerned at the trial. He was asked:
QOn 2 September 2017, you were on duty that day.
AYes.
QWere you working with Brevet Sergeant John Carroll.
AYes, I was.
QDid the two of you receive some information about a vehicle that was travelling along the Eyre Highway.
AYes we did.
QDid that cause you to undertake mobile patrols to locate the vehicle.
AYes.
The fact that the police had some information was plainly in evidence at the trial. The prosecutor did not go on to elicit the nature of the intelligence received as it was plainly not relevant at the trial.
In my view, however, that tends to confirm that all the Judge was doing, in paragraph one of the introduction, was setting out the historical circumstances in which the two police officers came to be patrolling the highway.
More pertinently, nowhere in the reasons of the trial Judge does his Honour refer to, or utilise in the course of his reasoning, the fact that the police had intelligence that two men in possession of large quantities of illicit drugs and/or cash were likely to be travelling eastward in that vehicle, except as part of the historical circumstances which caused the police to be on the highway in the first place.
In my view, the remarks of the Judge in the opening paragraphs are no more than an infelicitous and inaccurate shorthand summary of the evidence led at trial. Insofar as the remarks describe the nature of the information received by the police, the Judge has erred. However, after my own review of the evidence and the reasons of the trial Judge, I am satisfied that the Judge did not use that inadmissible evidence to reason to guilt and, accordingly, I am satisfied that there has been no substantial miscarriage of justice by the incorrect reference in the first paragraph of the judgment.
I would dismiss this ground of appeal in respect of both appellants.
Conclusion on the appeal against conviction
I would dismiss the appeal against conviction in respect of both appellants.
Appeal against sentence
Both appellants appeal the sentences imposed by the Judge on the basis that the sentences are manifestly excessive. The appellant, Koo, advances an additional ground in respect of the higher non-parole period he received by reference to the principle of parity.
The Judge sentenced the appellant, Koo, to a head sentence of 12 years imprisonment with a non-parole period of seven years. The appellant, Bae, received the same head sentence but received a lower non-parole period of six years.
Manifest excess - Bae
The appellant, Bae, complains that the sentence of 12 years in his circumstances reflected a lack of proportionality as this was a one-off offence committed by a young man of good character who came before the court as a first offender and was therefore entitled to the usual leniency that such an offender might attract. Moreover, references tendered before the Judge demonstrated that the appellant’s offending was uncharacteristic and involved a significant departure from his personal history and known character.
Manifest excess, parity - Koo
The appellant, Koo, also complains of manifest excess, submitting that the sentence was not within the permissible range given the role that the appellant played in the offending and the isolated nature of the offending. The appellant also submits that the Judge has not had adequate regard to the personal circumstances of the appellant including his lack of prior offending and good character.
In addition to complaining that the head sentence was manifestly excessive, the appellant, Koo, complains that the Judge’s decision to distinguish the non-parole period of Bae on the basis that he did reveals error. The appellant, Koo, submits that, in fixing a lower non-parole period because of Bae’s slightly younger age, language issues and lack of support in custody which would make, in the Judge’s view, his incarceration more onerous, the Judge has erred. It was submitted that the personal circumstances of both appellants were not relevantly dissimilar. Both were Korean nationals with English as their second language. Although Bae’s family reside in Korea, Koo’s family live in Sydney and are of modest means. In practical terms, the situation of the appellant Bae is not much different to the appellant Koo. Neither appellant will receive any support from someone who is able to visit them on a regular basis.
In those circumstances, the appellant, Koo, complains that the differences in personal circumstances of the appellants are not such that the departure from the application of the principle of parity was warranted.
In light of these factors, the appellant, Koo, has a justifiable sense of grievance at the lower non-parole period imposed in respect of the appellant, Bae.
Before turning to each of these complaints, it is necessary to first consider the nature of the offending.
Discussion
The maximum penalty for the offence for which the appellants were convicted is life imprisonment or a fine of $1,000,000, or both. The quantity of methylamphetamine trafficked by the appellants was significant and was almost 10 times the prescribed minimum for the offence, with a potential value of up to $10,000,000 if sold in point form. Both appellants were found to be actively and knowingly involved in transporting the methylamphetamine.
While the appellants were sentenced on the basis that they were couriers, they had extensive involvement in the organisation and commission of the offence. Therefore, they were not to be sentenced as couriers at the lower end of the range of objective seriousness.
In R v Yavuz,[37] the Court said:
[67]In R v Young Blue J made the following observations regarding sentencing an offender who has committed trafficking offences:
The features relevant to assessing the seriousness of a defendant's trafficking offending and the extent of proportionate punishment include the quantity, purity and varieties of the drug or drugs involved; the defendant's position in the drug trafficking hierarchy; the defendant's role in the trafficking (eg principal/sole trader, courier, handler, assistant, etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature's prescription of relevant factors in s 44 of the Act.
[Citations omitted]
[37] R v Yavuz; R v Soyler; R v Bayraktar (2018) 130 SASR 231, 245 [67].
The appellant, Bae, sought to support his argument as to manifest excess by reference to this Court’s decision in R v Young.[38]In Young this Court held that street level dealers motivated to a greater or lesser extent by profit can expect sentences in the range of four to seven years.
[38] (2016) 126 SASR 41.
In my view, the appellant’s reliance on Young is misplaced. The maximum penalty which the Court was considering in Young was 10 years.
The appellants committed this offence purely for personal gain. There was no evidence that either appellant ever used methylamphetamine. There was no evidence of any contrition or remorse.
None of the factors personal to the appellants could outweigh the objective seriousness of the offending in this case. The seriousness of the offending is underscored by the fact that the maximum penalty is life imprisonment.
With respect to the issue of parity for the non-parole periods, to my mind there was no relevant difference between the appellants, either in terms of the objective seriousness of their offending or their personal circumstances. For both appellants, the effect of incarceration in South Australia would be equally difficult irrespective of whether their family resides in Sydney or Seoul.
Conclusion on the sentence appeal
I would interfere with the sentence imposed on the appellant, Koo, to the limited extent of reducing the non-parole period from seven years to six years. Otherwise, I would dismiss both appeals against sentence.
STANLEY J: I would dismiss the appeals against conviction. I would dismiss Mr Bae’s appeal against sentence. I would allow Mr Koo’s appeal against sentence. I would set aside the non-parole period imposed by the sentencing judge. I would re-sentence by fixing a non-parole period of six years. I agree with the reasons of Kelly J.
PARKER J: I agree with the orders proposed by Kelly J and her Honour’s reasons.
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