Bain v Police - [2011] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BAIN v POLICE
[2011] SASC 228
Judgment of The Honourable Justice White
15 December 2011
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
The appellant was driving an unregistered car when he was stopped by police - his driver's licence had expired - the officers obtained information from the Police Information Management System (PIMS) indicating that the appellant was "drug user dependent" - while one officer prepared a traffic infringement notice, the other officer asked the appellant about his drug use - the appellant volunteered the fact that he had used drugs in the past eight hours - acting under s 52(9) of the Controlled Substances Act 1984 (SA) (CSA), the officer then conducted a search of the car and found pieces of jewellery with price tags still attached - the appellant was charged with unlawful possession of property in contravention of s 41(1) of the Summary Offences Act 1953 (SA).
The Magistrate declined to exclude the evidence of the search and convicted the appellant - the appellant appealed against the conviction, contending that the Magistrate had erred by not excluding evidence of the search.
Held: appeal dismissed - although the appellant was not compelled to answer the officer's questions regarding his drug use, the officer was not prohibited from asking him those questions - the appellant's responses, combined with the information from PIMS, were sufficient to establish a reasonable suspicion that the appellant's car may have in it something which would afford evidence of an offence against the CSA.
Summary Offences Act 1953 (SA) s 41, s 75AB; Controlled Substances Act 1984 (SA) s 52; Road Traffic Act 1961 (SA) s 40H, referred to.
Police v Moukachar (2010) 107 SASR 450; Bunning v Cross (1978) 141 CLR 54; R v Chapman (2001) 79 SASR 342; R v Rogers (2011) 109 SASR 307; George v Rockett (1990) 170 CLR 104; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, considered.

BAIN v POLICE
[2011] SASC 228
Magistrates Appeal

WHITE J. Shortly after 2.15 am on 6 May 2010, two police officers stopped the appellant’s car. After questioning the appellant and checking his personal details, one of the officers (Constable Brown) searched the car. During the course of the search, she found several pieces of jewellery, some of which still had price tags attached.
The appellant was charged with unlawful possession[1] of the jewellery on the basis that it was reasonably suspected of having been stolen. At the trial, he sought to have the evidence of the police search excluded, arguing that it had been unlawful.
[1] Summary Offences Act 1953 (SA), s 41(1).
After hearing evidence on the voir dire, the Magistrate declined to exclude the evidence of the search. The Magistrate was not satisfied that the police questioning of the appellant, or the search of his car, had been unlawful. The Magistrate went on to hold that even if she had reached a contrary view, she would not have exercised the discretion so as to exclude the evidence.
The parties treated the Magistrate’s voir dire ruling as determinative of the prosecution and the Magistrate found the appellant guilty of the offence of unlawful possession. This involved a number of steps: the evidence taken on the voir dire being received in the trial; the prosecution closing its case; the appellant being given the opportunity to present evidence in his defence; and, on him presenting no evidence, both parties having the opportunity to make closing submissions. It seems that many of these steps did not occur, and, as noted, that the parties accepted, expressly or tacitly, that the Magistrate’s voir dire ruling was determinative of the prosecution. No point was taken on the appeal about this procedural course.
There is a single ground of appeal. The appellant contends that the Magistrate should have found that the search of his car was unlawful and, in the exercise of the her discretion, excluded the evidence of what Constable Brown had found in the course of that search.
Constable Brown was exercising the power of search granted by s 52(9) of the Controlled Substances Act 1984 (SA) (CSA). In the form which was in force on 6 May 2010, s 52(9) provided:
(9)Where an authorised officer who is a member of the police force reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)     require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)     detain and search the vehicle, vessel or aircraft; and
(c)     seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
By s 50 of the CSA, all members of the police force are authorised officers for the purpose of the CSA. It can be seen that sub-s (9) authorises a police officer who “reasonably suspects” that any substance or equipment which would afford evidence of an offence is in any vehicle to, amongst other things, detain and search the vehicle.
The question on the appeal is whether Constable Brown did have the requisite reasonable suspicion required by s 52(9) at the time of her search.
Factual Circumstances
In the course of a routine patrol on 6 May 2010 at 2.17 am, Constable Brown and her partner (Constable Plumb) observed a car travelling on Park Terrace, Salisbury. They noted that the registration of the car had expired two days earlier. Constable Brown caused the car to pull over. The appellant was its driver and he had two passengers.
After submitting the appellant to an alco-test (which was negative) Constable Brown asked him to provide evidence of identification. The appellant produced his driver’s licence. Constable Brown then used the Police Information Management System (PIMS) in the police vehicle to check the appellant’s details. This revealed that the licence had expired, and that the appellant was described as “drug user dependent”.
Constable Brown returned to the appellant’s vehicle and instructed Constable Plumb to prepare a traffic infringement notice in relation to the expired licence. She then had the following conversation with the appellant:
"QIs there anything in the vehicle that shouldn’t be?
ANo.
QDo you use?
AYeah, only a little bit a couple of times a week.
QWhen was the last time you used?
AAbout eight hours ago.
QWhat do you use?
ASpeed.
QCan you jump out of the vehicle. I’m just going to have a quick look.”
During the course of her search Constable Brown found some paraphernalia of the kind commonly used in drug dealing and, in a bag described as a “bumbag”, several items of jewellery with the price tags still attached. After arranging for another officer to attend, she arrested the appellant.
Appellant’s Submissions
The appellant acknowledged that the police had been entitled to require him to stop his car and to ask him questions concerning his identity. He contended, however, that Constable Brown had not been entitled to ask him questions about his drug use; that Constable Brown should not have continued to detain him and ask him the questions about that use without first informing him that he was free to leave; and that in the circumstances, Constable Brown had used s 74AB of the Summary Offences Act 1953 (SA) to create an opportunity in which she could search his vehicle when otherwise not entitled to do so.
The appellant also submitted that the information which he had provided to Constable Brown concerning his drug use did not give rise to a reasonable suspicion that there was any substance or equipment in the car which would afford evidence of an offence against the CSA.
Consideration
The appellant’s concessions about the police powers were appropriate. Section 40H of the Road Traffic Act 1961 (SA) (RTA) authorises a police officer to direct a driver to stop a vehicle for the purpose of exercising other powers under a road law. Section 74AB of the Summary Offences Act authorises a police officer to ask a person questions for the purpose of obtaining information which may lead to the identification of the person who was driving a vehicle at a particular time.
The two police officers had not exhausted the exercise of those powers at the time of Constable Brown’s conversation with the appellant concerning his drug use. That is because Constable Plumb had not completed writing out the traffic infringement notice relating to the expiry of the appellant’s driver’s licence. This means that, quite apart from any other consideration, Constable Brown was not obliged to tell the appellant that he was at liberty to leave, before asking him any further questions.
It is true that there is no statutory provision which expressly authorised Constable Brown to ask the questions which she did about the appellant’s drug use, nor is there any statutory provision which obliged the appellant to answer those questions.
However, the absence of statutory authority for Constable Brown’s questions concerning the appellant’s drug use did not make those questions unlawful. Constable Brown did not require statutory authority to ask the questions which she did. She was as free to ask those questions as any other member of the community. The fact that the appellant was not obliged to answer Constable Brown’s questions did not make the questioning unlawful. Vanstone J made this point in Police v Moukachar:[2]
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of sections 74A, 74AB of the [Summary Offences Act] and s 96(1) of the Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.[3]
[2] [2010] SASC 199; (2010) 107 SASR 450.
[3] Ibid at [13]; 453-4.
A police officer is not of course entitled to mislead a person who is the subject of the exercise of police powers as to the nature or extent of those powers or as to the person’s obligations in relation to such powers. Conduct of that kind would be reprehensible and may give rise to an occasion for the exercise of the Bunning v Cross[4] discretion.
[4] (1978) 141 CLR 54.
However, in the present case, there is no suggestion of misleading conduct by Constable Brown. She did not say anything to the appellant to indicate that he was bound to answer her questions regarding his drug use. The appellant had not previously asked any question of Constable Brown as to the extent of his obligations to answer questions. The circumstances were not such that it was appropriate for Constable Brown to correct an apprehension in the appellant’s mind which may have arisen from an interchange between them as to the extent of his obligations in responding to police questions.
It is true that Constable Brown asked the questions concerning the appellant’s drug use at a time when the traffic infringement notice was being completed, so that he was in a sense subject to police direction. It is possible that this created the impression in the appellant’s mind that he was obliged to answer Constable Brown’s questions. However, as the appellant did not give evidence on the voir dire there is no evidence to that effect. Further, there is no suggestion that the police officers were deliberately extending the time necessary for the completion of the traffic infringement notice so as to prolong the opportunity for questioning of the appellant.
The appellant referred to the decision of Williams J in R v Chapman.[5] In that case, police stopped the accused as he was driving on a public road and exercised their powers under the former s 42 of the RTA to ascertain his identity. Having exhausted the exercise of those powers, a police officer asked the accused what was in an esky sitting on the front seat of the vehicle. When the accused indicated that it contained his drink, the officer asked if he could see inside the esky. The accused then opened the esky and displayed a can of drink. The officer thereupon smelt cannabis and proceeded to conduct a search of the vehicle, in the course of which he found a quantity of cannabis.
[5] [2001] SASC 113; (2001) 79 SASR 342.
Williams J excluded the evidence of the results of the search. He considered that the police had used their powers under the former s 42 “in order to create an opportunity to search in circumstances where Parliament has carefully circumscribed police powers of search and the conditions under which they may be exercised”.[6]
[6] Ibid at [17]; 345.
The appellant submitted that similar reasoning should be applied in his case.
In my opinion, the decision in Chapman is distinguishable. First, Williams J placed emphasis on the fact that the police had exhausted the exercise of their powers under the former s 42 at the time the police officer asked questions about the content of the esky: that was not so in the present case as Constable Plumb was still writing out the traffic infringement notice at the time of Constable Brown’s questioning concerning the appellant’s drug use. Secondly, Williams J considered that the former s 42 had been used in order to create an opportunity to search the vehicle: that was not so in the present case as the police officers had already ascertained before requiring the car to stop that its registration had expired and, after checking the appellant’s identity, that his driver’s licence had expired. That is to say, there were infringements which it was appropriate for the police to report. That being so, this was not a case in which a power granted for one purpose was used to permit police conduct which was not otherwise authorised.
For this reason, I consider that Chapman does not provide support for the appellant’s submission.
Accordingly, in considering whether Constable Brown did reasonably suspect that the appellant’s car may have in it a something which would afford evidence of an offence against the CSA, it was appropriate for the Magistrate to have regard to all of the information concerning the appellant then available to Constable Brown, including that arising from her conversation with him concerning his drug use. That information comprised the following:
1.The information from PIMS that the appellant was “drug user dependent”;
2. The appellant’s admission (in effect) that he was a current drug user;
3.The appellant’s admission that he had used “speed” about eight hours previously;
4.The fact that the appellant was driving a car registered in the name of a female with the same surname as the appellant (giving rise to the inference that his association with the car may be more than fleeting).
Constable Brown said that the information on PIMS “spiked a suspicion” in her mind but that she had not regarded it as sufficient to justify a search of the appellant’s vehicle. It was the additional information that the appellant was a current drug user and that he had taken speed as recently as eight hours earlier which, in her opinion, did give rise to a reasonable suspicion that there may be drugs or equipment in the appellant’s car.
The authorities concerning the concept of “reasonable suspicion” in the context of s 52(9) of the CSA were reviewed recently by Duggan J in R v Rogers.[7] It is not necessary to repeat that review. It is sufficient to note that some factual basis for the suspicion must be shown; that 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,[8] and accordingly that the facts which can give rise to a reasonable suspicion may be insufficient to give rise to an actual belief.[9] However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment.[10]
[7] [2011] SASC 40 at [18]-[22]; (2011) 109 SASR 307 at 311-12.
[8] Ibid citing Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
[9] George v Rockett (1990) 170 CLR 104 at 115.
[10] R v Rogers [2011] SASC 40 at [21]; (2011) 109 SASR 307 at 311-12.
The suspicion in a given case may be based upon a police officer’s observations together with what the police officer has learnt from other sources. The requirement of reasonableness may require police officers to assess the reliability of any information provided to them.[11]
[11] Ibid at [22]; 312.
In my opinion, the information available to Constable Brown was capable of giving rise to a reasonable suspicion that the car which the appellant was driving contained drugs or equipment associated with illicit drug use. It is true that there was nothing to link the appellant’s drug use with the car but I do not regard that as a persuasive consideration. It is commonplace for drug users to carry drugs with them, whether on their person or in a receptacle such as a bag. The appellant’s admission that he had used an illicit drug as recently as eight hours earlier made it reasonable for Constable Brown to suspect that that may be so in the appellant’s case. That was especially so given the appellant’s evident association with the car.
Even if I had reached a conclusion as to unlawfulness which was different from that of the Magistrate, I would not have exercised the Bunning v Cross discretion in favour of the appellant. I respectfully agree with the Magistrate’s reasons on that topic. It could not be said that any unlawfulness by the police on this occasion was deliberate: instead an exercise of judgment was involved, and Constable Brown’s assessment could not be regarded as wholly unreasonable. The evidence obtained was cogent evidence of the commission of the offence with which the appellant was charged, and its quality as such was not affected by Constable Brown’s conduct.
Even if circumstances enlivening the discretion did exist, I would not have exercised it in favour of the appellant.
Conclusion
For the reasons given above, I dismiss the appeal.