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 228Magistrates 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…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the police officer had the authority to ask the appellant about his drug use and conduct a subsequent search of the car. The appellant argued that the officer did not have a reasonable suspicion that there was any substance or equipment in the car that would afford evidence of an offence against the Controlled Substances Act 1984 (SA) (CSA). The court considered whether the police officer's questions about drug use were lawful and whether the officer was required to inform the appellant that he was at liberty to leave before asking further questions.
The court found that the police officer was not obliged to inform the appellant that he was at liberty to leave before asking questions about drug use, as the officer had not yet completed the traffic infringement notice for the expired licence. Additionally, the court held that the police officer did not need statutory authority to ask the questions, as the purpose of the relevant sections of the Summary Offences Act and the Motor Vehicles Act was to provide sanctions for failing to provide relevant information. The court concluded that the officer's conduct did not amount to misleading the appellant about the nature or extent of the police powers or the appellant's obligations in relation to those powers.
Ultimately, the court dismissed the appeal, affirming that even if the circumstances had enlivened the discretion, it would not have been exercised in favour of the appellant. The court held that the police officer's actions were lawful, and the subsequent search and seizure were justified under the circumstances. The appellant's argument regarding the lack of reasonable suspicion was not accepted by the court.
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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.