Emery v The Queen - [2021] SASCA 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
EMERY v THE QUEEN
[2021] SASCA 62
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
17 June 2021

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Appeal against conviction.
The appellant was convicted following a trial by Judge alone of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984. The offending related to a search of the appellant’s vehicle in May 2019, during which a total of 1.95 kilograms of methylamphetamine was located.
Prior to the trial, the appellant made an application pursuant to r 49(1)(h) of the District Court Criminal Rules 2014, seeking to exclude evidence of the search and evidence of an inculpatory statement made by the appellant. The statement was made while the appellant was being searched by police at the commencement of his record of interview. Following a hearing, the Judge dismissed the application.
The appellant appeals against his conviction on two grounds. First, it was contended that the Judge erred in finding that the search of the vehicle was lawful, in circumstances where police could not have held a ‘reasonable suspicion’ pursuant to s 52(9) of the Controlled Substances Act 1984. Second, it was argued that the record of interview was obtained in circumstances where the police, as a result of pausing to complete a safety search of the appellant, failed to comply with the obligation to provide the appellant with all of his arrest rights as soon as reasonably practicable. In respect of both grounds, it was further argued that the unlawfully obtained evidence ought to be excluded in the exercise of the Judge’s discretion.
Held (by the Court), granting permission to appeal on both grounds and dismissing the appeal in respect of both grounds:
1. It was open to the Judge to conclude that the information held by the police officer on the date of the search was a sufficient basis to form the requisite suspicion required under s 52(9) of the Controlled Substances Act 1984. There was nothing unlawful about the search.
2. The delay in advising the appellant of his rights under s 79A(3) of the Summary Offences Act 1953 was minimal and the police should not be criticised for giving priority to the safety check.
3. No error has been demonstrated in the Judge’s decision not to exclude the evidence of the search and the record of interview.
Controlled Substances Act 1984 (SA) s 32(1), s 52(9); Summary Offences Act 1953 (SA) s 79A; District Court Criminal Rules 2014 (SA) r 49(1)(h), referred to.
R v Nguyen (2013) 117 SASR 432, applied.
R v Dam and Nguyen (2015) 123 SASR 511; R v Nguyen (2015) 248 A Crim R 398; Bae v The Queen (2020) 135 SASR 522; George v Rockett (1990) 170 CLR 104; Bunning v Cross (1978) 141 CLR 54; R v Golja [2017] SASCFC 61; House v The King (1936) 55 CLR 499, considered.

EMERY v THE QUEEN
[2021] SASCA 62

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA
THE COURT:

The appellant, Paul John Emery, was charged with trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘Controlled Substances Act’). The offending related to a search of the appellant’s vehicle in May 2019, during which a total of approximately 1.95 kilograms of methylamphetamine was located.
Prior to the trial, a Rule 49 application[1] was instituted by the appellant seeking to exclude evidence of the search and evidence of an inculpatory statement made by the appellant when interviewed by police on the same day. The application was heard on 28 September 2020 by a District Court Judge. On 7 December 2020, the Judge ruled that the search was lawful and dismissed the appellant’s application to exclude the evidence of the search and the record of interview.
[1] Pursuant to the District Court Criminal Rules 2014.
On 2 February 2021, following a trial before a different Judge, the appellant was convicted of the offence.
The appellant appeals against his conviction on two grounds. It was contended that the Judge who presided over the voir dire hearing erred in firstly, finding that the search of the vehicle was lawful and secondly, admitting the record of interview conducted by police with the appellant. In relation to the second ground, it was contended that the record of interview was obtained in circumstances where the police failed to comply with the obligations imposed pursuant to s 79A of the Summary Offences Act 1953 (SA) (‘Summary Offences Act’).
On 6 April 2021, the application for permission to appeal was referred to the Court of Appeal.
Background
Before turning to the appeal grounds, it is necessary to set out the undisputed circumstances of the search and the record of interview conducted with the appellant.
The search
By virtue of an ongoing police operation, the appellant was a person of interest in relation to the supply of methylamphetamine into Whyalla.
On 21 May 2019, police became aware that the appellant had travelled to Adelaide from Whyalla in a blue Ford XR6, which was registered in the appellant’s name. He drove to various addresses while under police surveillance, before being stopped by a uniformed police officer, Senior Constable Schaeffer (‘SC Schaeffer’), at about 6:15pm. At the time that he was stopped, the appellant was travelling on Port Wakefield Road, Bolivar, in the direction of Whyalla.
Detective Brevet Sergeant Glasson (‘DBS Glasson’) and Detective Brevet Roberts attended the carpark of the ‘On the Run’ Service Station on Port Wakefield Road, Bolivar and conducted a search of the appellant’s vehicle pursuant to s 52 of the Controlled Substances Act. Two large clear plastic bags were located, concealed in the upper lining of the boot of the vehicle. Those bags contained 14 smaller bags, each containing approximately 139 grams of methylamphetamine. In total, police located 1.946 kilograms of mixed weight material, 1.554 kilograms of which was methylamphetamine at a purity of approximately 80 per cent. Other items indicative of drug trafficking, including four mobile phones, cash in the amount of $2,150 and numerous plastic resealable bags, were located in the vehicle and at the appellant’s home address, which was later searched.
Record of interview
The appellant was arrested at about 6:52pm at the service station by DBS Metschke. DBS Metschke, in company with another detective, DBS Webber, commenced a record of interview with the appellant. The interview commenced with the appellant being cautioned and given some of his arrest rights, including the right to refuse to answer questions. The giving of the appellant’s rights was interrupted by a safety search of the appellant’s person. While being searched, the following exchange took place:
[DBS METSCHKE]:    You got nothing sharp on you?
[APPELLANT]:          No mate.
[APPELLANT]:          I don’t suppose a personal defence is going to fly on this one?
[DBS METSCHKE]:    What was that?
[DBS METSCHKE]:    I’m happy to have a chat about it after.
[APPELLANT]:          Yeah alright.
[DBS METSCHKE]:    But we’ll do your rights and that sort of thing in the car first, alright.
[APPELLANT]:          Okay mate yeah. I’ve got nothing on me, no seriously.
Once the search was completed, the appellant was given the remainder of his arrest rights. He indicated that he wished to contact a duty solicitor and, after receiving legal advice, declined to answer questions. The interview was terminated.
The Rule 49 application
Prior to the trial, the appellant made an application pursuant to r 49(1)(h) of the District Court Criminal Rules 2014, seeking to exclude all evidence/items seized by police on 21 May 2019, on the ground that the search and seizure was unlawful.
The appellant also sought to exclude the record of interview conducted by DBS Metschke and DBS Webber on 21 May 2019, on the ground that the officers failed to provide rights to the appellant immediately upon his arrest pursuant to s 79A of the Summary Offences Act.
At the hearing of the application on 28 September 2020, DBS Glasson and SC Schaeffer gave evidence. SC Schaeffer, who conducted the traffic stop of the appellant’s vehicle, gave evidence as to the circumstances of the stop.
The evidence of DBS Glasson was in the form of two affidavits sworn on 29 July 2019[2] and 12 September 2020[3] and oral evidence. The first affidavit related to his awareness of the appellant’s movements and suspected involvement in the trafficking of methylamphetamine. In that affidavit, DBS Glasson also addressed his search of the appellant’s vehicle and the processes undertaken in relation to the search.
[2] Exhibit VDP2.
[3] Exhibit VDP3.
The second affidavit related to the material which ultimately led to DBS Glasson forming the suspicion that the appellant was involved in the trafficking of methylamphetamine and, more importantly, that he was in possession of methylamphetamine at the time of the search. The information which DBS Glasson had before him prior to searching the appellant’s vehicle was conveniently summarised by the Judge in her Honour’s reasons for ruling:
·Telephone intercepts between 15 May 2018 and 6 December 2018 identified Brown as allegedly involved in the distribution of methylamphetamine.
·Intelligence material identified [the appellant] was selling methylamphetamine in Whyalla from his home and business premises between June 2017 and August 2018.
·One source had informed police that [the appellant] returned to Adelaide for two days at a time where he either cooked or purchased the drugs (20.08.18).
·One source had informed police that [the appellant] would travel to Adelaide to purchase the drugs (6.11.17).
·Safety camera records showed [the appellant’s] vehicle had travelled to Adelaide from Whyalla on four occasions between June and September 2018.
·[The appellant’s] trips to Adelaide took two days.
·There had been a series of telephone communications between [the appellant] and Brown, who was the subject of police investigation. Before three of the trips to Adelaide by [the appellant], there had been telephone communication between [the appellant] and Brown.
·During one intercepted communication between [the appellant] and Brown, reference was made to a ‘BB message’
·The reference to BB meant, in [DBS Glasson’s] experience, Blackberry, a type of mobile phone used by those engaged in the drug trade.
·On 21 May 2019, [the appellant] had travelled from Whyalla to Adelaide.
·On 21 May 2019, [the appellant’s] vehicle travelled down a dead end road at Sellicks beach and was followed by Brown.
·A short time later, [the appellant] left that remote location, followed by Brown.
The intelligence material to which DBS Glasson had regard to, known as SHIELD Intelligence Reports, were tendered at the hearing.
The Judge’s reasons
After setting out the information that was before DBS Glasson, and considering the arguments of both parties, the Judge identified what both parties conceded was the correct legal test in R v Nguyen.[4]
[4] Reproduced at [28] below.
The Judge then discussed DBS Glasson’s use of the intelligence reports and noted the deficiencies in those reports, in particular, their staleness and the fact that they were mostly from an untested source. Her Honour then concluded as follows:
[64]Each of the matters to which DBS Glasson had regard carried some weight, some of which were more significant than others, and any of which in isolation would not be enough to satisfy the test of ‘reasonable’.
[65]The information DBS Glasson received on 21 May 2019 concerning [the appellant’s] movements and his presence close to Brown in a remote location no doubt provided him with a significant body of information that built on what he knew about [the appellant], and indeed Brown, up to that point. The obvious inference to be drawn by DBS Glasson was that to which he referred in his evidence. That is, there had been a meeting between [the appellant] and Brown, which given its location, the information police had regarding [the appellant] and Brown, their communications and respective suspected involvement in drug trafficking, involved the drug methamphetamine.
[66]In combination, all of the information before DBS Glasson formed what I find to be, the requisite suspicion that a search conduced of [the appellant] and his vehicle would reveal evidence relevant to the commission of an offence under the Act. The search was not speculative.
[67]In the event I am wrong, I indicate that I would not have exercised my discretion to exclude evidence of the search. In arriving at that decision, I am mindful of what has been said regarding the principal considerations of ‘high public policy’ favouring the exclusion of illegally obtained evidence.
Accordingly, the application to exclude evidence of the search was dismissed.
In relation to the record of interview, the Judge summarised the arguments of the parties before stating:
[81]I observe here that while the rights had not been given in full, what might be thought of as the most fundamental or basic right to be given to an accused, had been given by DBS Metschke. He had plainly told [the appellant] that he was not obliged to say anything and that anything he did say may be given in evidence. DBS Metschke asked whether [the appellant] understood, and [the appellant’s] reply clearly indicated that he did. It was clearly the case [the appellant] knew what his rights were when he told police at the outset that he would not provide them with the passcode for his mobile phone.
[82]There can be no suggestion that the statement [the appellant] made regarding personal use was involuntary. As distinct from the various authorities that concern the propriety of police interrogation, this case is not an example of police proceeding to question an accused in the face of the accused having requested a solicitor or friend; where the accused is impaired through drugs, alcohol or trauma or without an interpreter. It is not an example of police persisting with an interrogation where an accused has signified unwillingness to answer. DBS Metschke only interrupted the s 79A rights when it became apparent that a search for weapons had not been undertaken.
[83][The appellant] here was not subjected to any pressure by police to say anything and there was nothing improper in the way the interview proceeded. Nothing in the interview suggests that [the appellant] did not understand his right to remain silent, indeed, he told police that he had ‘been through this before’.
Based on the above, her Honour concluded that there was no reason for the interview to be excluded.
We now turn to consider the grounds of appeal advanced by the appellant.
Ground 1 – Legality of the search
Two issues arise in respect of the first ground of appeal. The first is whether the search was lawful, and the second is, if it was not a lawful search, should the Judge have excluded the evidence unlawfully obtained.
The facts set out at [7]-[9] above were not in dispute. The only issue is whether, on those facts, the police officer, DBS Glasson, held the requisite suspicion under s 52(9) of the Controlled Substances Act to permit a lawful search.
The relevant sections of the Controlled Substances Act are reproduced below:
52—Power to search, seize etc
(1)Subject to this section, an authorised officer may—
(a)     enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and
(b)     if reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and
(c)     for the purposes of paragraph (a) or (b), require the driver of any vehicle, the master of any vessel or the pilot of any aircraft to stop that vehicle, vessel or aircraft.
(2)While an authorised officer is in or on any premises pursuant to this section, the officer may—
(a)     inspect or search the premises or any equipment or other thing on the premises;
(b)     require any person to produce any books, papers or documents (including a written record that reproduces, in an understandable form, information stored by computer, microfilm or other process) or any substance, equipment or device;
(c)     examine any books, papers or documents (including a written record that reproduces, in an understandable form, information stored by computer, microfilm or other process) and take extracts from any of them or make copies of any of them;
(d)     examine any substance, equipment or device;
(e)     take and remove from the premises samples of any substance or goods;
(f)     carry out any tests;
(g)     take any photographs or films or make any audio or audiovisual record;
(h)     require the holder of a licence, authority or permit under this Act to produce that licence, authority or permit for inspection;
(i)    if the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;
(j)    give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer's powers under this Act.
…
(9)If an authorised officer who is a police officer 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.
…
Whether or not a suspicion held by police for the purpose of s 52(9) is reasonable is a question of fact.
For present purposes, both parties accepted that the relevant test to be applied was expressed in R v Nguyen,[5] where the Court said:
[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)
[5] (2013) 117 SASR 432 at [21]-[22] per Kourakis CJ, Blue and Stanley JJ.

The above decision of R v Nguyen has been followed and applied in numerous cases since.[6]
[6] See for example, R v Dam and Nguyen (2015) 123 SASR 511; R v Nguyen (2015) 248 A Crim R 398; Bae v The Queen (2020) 135 SASR 522 at [63]-[69].
In assessing the reasonableness of the suspicion, it is first necessary to consider what information DBS Glasson had.
The appellant submitted that the material relied on by DBS Glasson fell into three categories:
1.Intelligence reports;
2.Telephone intercepts concerning a person named Jamie Brown; and
3.Observations made on 21 May 2019.
It is accepted that the information summarised at [16] herein is the extent of the information available to the police.
The appellant criticised the quality and sufficiency of that information on a number of grounds.
First, the appellant submitted that the intelligence reports were stale, given that the most recent report was dated some nine months before the date of the search on 21 May 2019. In addition, all but one of the intelligence reports were from an untested source and most of them related to the appellant’s alleged activities in Whyalla only.
Second, the appellant complained that the information contained in the telephone intercepts concerning Jamie Brown was given too much prominence by DBS Glasson. All that those intercepts revealed was that on three previous occasions when the appellant travelled to Adelaide, he had recently communicated with Mr Brown. Those trips occurred between June 2018 and September 2018, some eight months prior to the search on 21 May 2019.
There was also criticism of DBS Glasson’s reliance on an intercepted communication between the appellant and Mr Brown on 19 November 2018, in which they referred to a ‘BB’ message. DBS Glasson took this to be a reference to a BlackBerry device, which, based on his evidence, are devices used to make encrypted communications, often utilised by drug dealers. DBS Glasson’s reliance on that communication was criticised on the basis that there was no evidence of any drug related activity on the part of the appellant in the intercepted communications, nor was there any evidence to that effect in the five months after telephone surveillance of Mr Brown’s phone had ceased.
Accordingly, the appellant contended that, as the reference to ‘BB’ occurred in isolation, very limited weight ought to have been given to that communication, and its prominence in the overall circumstances was overstated.
Finally, in relation to the surveillance of the appellant on 21 May 2019, the appellant submitted that there was still no intelligence or information to suggest that either the appellant or Mr Brown were actually in possession of drugs on that day.
Taking all of the circumstances into account, the appellant argued that the information relied on by DBS Glasson was so flimsy that it was incapable of giving rise to a reasonable suspicion. To put it another way, the appellant submitted that there was a lacuna between the supporting material and the suspicion.
In addition, the appellant submitted that the material relied on was not objectively capable of founding a reasonable suspicion, particularly when it was known by the police that the appellant often travelled to Adelaide and visited his daughters during those visits.
Therefore, in concluding that the search of the appellant’s vehicle was lawful, it was argued that the Judge failed to grapple with the most important evidentiary deficit, namely the lack of any intelligence or information that either of the two men concerned on that day were in possession of drugs.
Discussion
As the Judge plainly recognised, some of the considerations relied on by DBS Glasson, standing alone, would not have been sufficient to found a reasonable suspicion.
However, a reasonable suspicion may be based on more than one consideration. In this case, DBS Glasson’s suspicion was based on a number of considerations, some of which were more significant than others.
It is important to recognise that the facts which may properly give rise to a reasonable suspicion may be nevertheless insufficient to reasonably ground a belief. As Vanstone J observed in R v Dam and Nguyen,[7] quoting from the well‑known case of George v Rockett:[8]
[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.
[7] (2015) 123 SASR 511 at [35].
[8] (1990) 170 CLR 104.
Vanstone J then went on to reference the relevant paragraphs of R v Nguyen[9] already referred to in this judgment.
[9] (2013) 117 SASR 432 at [21]-[22].
Properly analysed, all of the material relied on by DBS Glasson caused his suspicion to develop over a lengthy period of time.
The intelligence reports revealed that the appellant had been involved in trafficking methylamphetamine between June 2017 and August 2018.
During that same period, Safe-T-Cam records established that the appellant’s vehicle had travelled to Adelaide from Whyalla on four occasions, which was consistent with information contained in those intelligence reports that the appellant was in the habit of travelling to Adelaide to purchase drugs. Furthermore, the records revealed that the appellant would return to Whyalla on the same day, which is consistent with short trips to purchase drugs.
In addition, there were several telephone calls between the appellant and Mr Brown, a person of interest in relation to drug trafficking. In particular, the communications between them preceded three of the four occasions that the appellant travelled to Adelaide, and included a message which appeared to reference a Blackberry, which is known to be used in the drug trade to deliver encrypted messages.
Paradoxically, the reference to the BlackBerry is also capable of accounting for the lacuna in information over the subsequent months that the appellant was trafficking in drugs.
It can be seen, from the totality of the information, that DBS Glasson patiently built a suspicion over a period of time, which culminated following the observations made on 21 May 2019. On that day, the appellant travelled from Whyalla to Adelaide and, while under surveillance, was seen to travel to an isolated part of Sellicks Beach where he travelled down Ryan Road, which came to a dead end. A short time later, the appellant was observed leaving Ryan Road and Mr Brown was seen to follow in a vehicle behind.
Mr Brown returned to his home address and the appellant travelled to visit his daughters in Tatachilla and Hackham West before travelling on to Port Wakefield Road, Bolivar.
DBS Glasson suspected that a meeting had taken place between Mr Brown and the appellant at the end of Ryan Road. Armed with that information, he formed a suspicion on reasonable grounds that the appellant’s vehicle now contained controlled drugs. This led him to direct that the appellant’s vehicle be stopped. In these circumstances, we consider that it was open to the Judge to conclude that the information which DBS Glasson had on 21 May 2019 was a sufficient basis to form the requisite suspicion required under s 52(9) of the Controlled Substances Act.
Therefore, we conclude that there was nothing unlawful about the search of the appellant and his vehicle.
If our conclusion is wrong and the search was unlawful, we must then consider whether we would exercise the discretion to admit the evidence nonetheless.
In exercising this discretion, the authorities make it clear that the courts must consider whether the evidence should be excluded on the basis of ‘high public policy’,[10] which involves the weighing up of competing considerations of protection against the abuse of police powers and the public interest in seeing the guilty be convicted.[11]
[10] Bunning v Cross (1978) 141 CLR 54 at 74.
[11] R v Golja [2017] SASCFC 61 at [35].
In our view, it is clear that there are a number of factors in this case which weigh against the exclusion of the evidence of the search. In the circumstances, we consider that it was open to the Judge to conclude as she did, that:
This is not a case where there has been any deliberate disregard of the limitations to the police power to search. The decision to stop and search [the appellant] came only after DBS Glasson carried out his own inquiries and became aware of information that was entirely consistent with the information he had received up to that date. He showed appropriate caution and restraint before proceeding as he did. There was no ‘cutting of corners’ by police and nothing egregious in their actions.
No error has been demonstrated in the Judge’s approach and therefore, even if the search was unlawful, this Court ought not to intervene.[12]
[12] House v The King (1936) 55 CLR 499.
Ground 2 – Failure to exclude the record of interview
The second ground of appeal raises for consideration the obligation of the police, upon the arrest of a suspect, to give the statutory rights pursuant to s 79A of the Summary Offences Act as soon as reasonably practicable after apprehension.
Section 79A states:
79A—Rights on arrest
(1)Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—
(a)     the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b)     where the person is apprehended on suspicion of having committed an offence—
(i)the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
(ii)if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii)the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
(1a)Where a minor has been apprehended on suspicion of having committed an offence and—
(a)     the minor does not nominate a solicitor, relative or friend to be present during an interrogation or investigation relating to the suspected offence; or
(b)     the solicitor, relative or friend nominated by the minor is unavailable or unwilling to attend the interrogation or investigation,
then, subject to subsection (1b), the minor must not be subjected to an interrogation or investigation until the police officer in charge of the investigation of the suspected offence has secured the presence of—
(c)     a person, or a person of a class, nominated by the Chief Executive within the meaning of the Youth Justice Administration Act 2016 to represent the interests of children subject to criminal investigation; or
(d)     where no such person is available, some other person (not being a minor, a police officer or an employee of the Police Department) who, in the opinion of the police officer, is a suitable person to represent the interests of the minor.
(1b)An interrogation or investigation may proceed despite subsection (1a) if—
(a)     the suspected offence is not an offence punishable by imprisonment for two years or more; and
(b)     it is not reasonably practicable to secure the presence of a suitable representative of the child's interests as contemplated by that subsection.
(2)The police officer who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit—
(a)     the person in custody to make a telephone call to a particular person (being a relative or friend); or
(b)     a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation,
if the officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence.
(3)A police officer must, as soon as is reasonably practicable after the apprehension of a person—
(a)     inform that person of his or her rights under subsection (1); and
(b)     warn the person that anything that he or she may say may be taken down and used in evidence.
The appellant submitted that, because the terms of s 79A(3) are mandatory, the failure of police to provide those rights in full prior to the impugned statement made by the appellant should have resulted in the exclusion of the interview.
The appellant submitted that there was nothing in the conduct or demeanour of the appellant, at the time the record of interview commenced, which could have given rise to any suggestion that it was not reasonably practicable to complete the giving of the rights prior to conducting a safety search.
The failure to provide all rights, the appellant submitted, was even more significant given that once the rights were given to him, the appellant availed himself of them immediately, indicating that he wished to speak with both his girlfriend and a solicitor. Then, having spoken with a solicitor, and acting on her advice, he declined to answer questions.
The issue to be determined is whether, in all of the circumstances, it was reasonable for DBS Metschke to await the completion of the safety search before providing the appellant with all of his statutory rights.
Although the conduct of the police during the arrest bears all the hallmarks of a police officer stepping through a required protocol as to safety searches, what must be considered is whether compliance with that protocol which is, in itself, proper, resulted in a failure of the police officer to give all of the rights pursuant to s 79A(3) as soon as reasonably practicable after the arrest.
It may be conceded that the appellant was docile throughout the time he was recorded on the video before and after his arrest. Indeed, at the time that he volunteered the impugned statement, the appellant’s demeanour could be described as somewhat jovial.
Nevertheless, we do not think it is for this Court to make ex post facto judgments about the need for strict compliance with police safety protocols in the circumstances of an arrest.
It was a dark night in a busy service station. The appellant presented as a man with a strong build who posed no apparent threat. However, he was unknown to the police and, in the dynamic situation of an arrest, the demeanour of an arrested person can change in an instant. Police are only too familiar with such circumstances. Therefore, we do not consider it behoves this Court to make what may be a fine judgment about the practicality of awaiting the outcome of a safety search before completing the giving of an arrested person’s rights.
In this context, it is also relevant that the impugned comment was volunteered out of the blue and in the context of a somewhat jocular tone on the part of the appellant.
The response of DBS Metschke to the comment also militates against any finding that the police conduct, in all the circumstances, was either unlawful or inappropriate. Immediately after the comment, DBS Metschke warned the appellant that he could not speak until after his rights had been given to him.
Overall, the delay in advising the appellant of the balance of his rights under s 79A(3) of the Summary Offences Act was minimal and, in the circumstances, we do not believe that the police should be criticised for giving priority to the safety check.
If we are wrong about that, in our view, in the absence of any reckless or malicious conduct on the part of the police officers, and in view of the minimal delay and the circumstances in which the comment was volunteered (as opposed to solicited by police), we uphold the Judge’s decision not to exclude the interview in the exercise of her discretion. This is even more so in light of the strong public interest in the prosecution of such serious offending.
Conclusion
For the reasons given above, we grant permission to appeal on both grounds but dismiss the appeal.