Ghamrawi v The Queen - [2019] SASCFC 108

Supreme Court of South Australia
(Court of Criminal Appeal)
GHAMRAWI v THE QUEEN
[2019] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Auxiliary Justice David)
6 September 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Appeal against conviction.
On 17 July 2017, three police officers attended premises at Seacliff Park following a complaint of a domestic disturbance. The appellant was standing next to a taxi parked on the premises and was subsequently detained, searched and arrested by the police officers. Methylamphetamine was found in the appellant’s possession. The appellant was charged with and convicted of trafficking after a trial before a judge sitting alone. The appellant appealed against his conviction, contending that he had been subjected to an unlawful search.
The appellant submitted that he had been unlawfully detained by the police officers when one of the police vehicles was parked across the driveway preventing him from leaving. He also contended that other conduct of the police officers, including directions that the appellant exit the vehicle and provide his particulars, was also unlawful. The appellant contends that the evidence of the drugs was unlawfully obtained and should have been excluded by the Judge in the exercise of his discretion.
Held, per David AJ (Kourakis CJ and Nicholson J agreeing), dismissing the appeal:
1. In all the circumstances, including the seriousness of the offending and the short and technical nature of any illegality, the Judge was correct to exercise his discretion not to exclude the evidence.
Controlled Substances Act 1984 (SA) ss 52(6), 32(3); Summary Offences Act 1953 (SA) ss 68, 74A, referred to.
Bunning v Cross (1978) 141 CLR 54, applied.

GHAMRAWI v THE QUEEN
[2019] SASCFC 108
Court of Criminal Appeal: Kourakis CJ, Nicholson and David AJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by David AJ.
I wish to emphasise that the statutory provisions set out in the judgment of David AJ embody the Parliament’s, and therefore the community’s, resolution of the proper balance between individual liberty and privacy and the enforcement of the criminal law. Police officers should be guided by a good working knowledge of those powers and their limits. They should not act on their subjective view of what they ought to be free to do and then hope, after the event, that they have observed the limits of the law.
In this case, however, the balance of the competing considerations weighs strongly against excluding the evidence of what was discovered by this unlawful search.
NICHOLSON J: I would dismiss the appeal for the reasons given by David AJ. I agree with the additional observations of the Chief Justice.
DAVID AJ.
Introduction
After a trial by judge alone, the appellant was found guilty of one count of trafficking in a controlled drug namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant appeals against his conviction on the ground that the evidence of his possession of the drugs, the subject of the charge, was the product of unlawful police detention.
Before the commencement of the trial proper, on a voir dire hearing the appellant asked the trial Judge to exclude evidence of the police detecting drugs in the appellant’s possession after hearing evidence from the police officers concerned in the appellant’s arrest. The trial Judge refused the application to exclude the evidence and the trial proceeded. At the trial proper evidence was presented by way of agreed facts and the tendering of exhibits, but no oral evidence was called either by the prosecution or the defence. The trial Judge consequently found the appellant guilty.
The appellant now argues that the trial Judge’s decision to allow the evidence, which was the basis of the charge, was incorrect because it was unlawfully obtained and, in the exercise of his discretion, he should have excluded it. Without such evidence there would clearly have been no case to answer.
Facts presented on the voir dire
Three police officers were involved in the detention and eventual arrest of the appellant. All were called on the voir dire. There could be no dispute about their actual evidence, because two CCTV discs depicting the events were tendered on the voir dire and viewed by this Court. Transcripts of the contents of those CCTV discs were also tendered.
At about 10:30 pm on 17 July 2017 police were called to a house at Gardenia Street, Seacliff Park to investigate a domestic disturbance. The information they received was considered to be a “Tier 1” tasking and indicated a form of domestic violence. Two police officers, namely Constable David Jowsey and Constable Lenka Arndt, arrived at the premises in their police vehicle and observed the accused standing next to the open front door of a taxi parked in the driveway of the house. At that time they did not know any details of the disturbance or if the appellant had any role to play. Another police vehicle driven by Senior Constable Stefan Rudevics, also arrived and he parked his vehicle across the entrance to the driveway, effectively preventing the taxi from leaving. The police approached the appellant and a conversation, which was recorded on CCTV and transcribed, followed. In essence the following took place:
·There was an initial short conversation between the appellant and the driver, which indicated that the taxi was ready to go.
·Constable Arndt then said to the appellant “jump out of the car buddy”.
·There was then a conversation as to what happened inside the house. The appellant indicated that “she’s left now”. Presumably to say that any disturbance had finished.
·Constable Jowsey asked the appellant for his ID, to which he replied that it was in the car.
·Constable Jowsey, after a certain evasiveness by the appellant, told him to supply his name or he would get locked up. Constable Arndt then said to the appellant “just take your hands out of your pockets”.
·Eventually the appellant gave his name, address and date of birth. He also told the police that his partner and children were not inside the house.
·There was then a short conversation about where his family might have gone.
·Cosntable Arndt noticed a folder with a substantial amount of cash, and the appellant resisted and argued against the police taking possession of it. Eventually he relented and allowed them to.
·Senior Constable Rudevics, who had departed for a short period of time, then came back and searched the appellant and found a knife. He then arrested him for carrying an offensive weapon. The appellant was then handcuffed.
·The police then observed in the front passenger foot well of the taxi, a plastic tub which contained a prescription drug and a small quantity of cannabis.
·While searching the appellant they found two mobile phones containing messages indicative of the selling of methylamphetamine. Further, whilst being searched they noticed at the appellant’s feet two plastic resealable sandwich bags containing what was later determined to be methylamphetamine. It was that methylamphetamine which was the subject of the charge.
·The appellant dived towards the packages and tried to swallow the contents of one of them. The police tried to remove the substance from his mouth but he resisted.
The appellant’s counsel on the voir dire hearing argued that the appellant was unlawfully detained by the police officers, as one of the police vehicles was parked across the driveway preventing the taxi that the appellant was in from reversing. He also argued that the accused was unlawfully told to get out of the taxi. It was argued that there was no power to direct him to do so, as at that stage there was no reasonable suspicion of any offence having taken place. The appellant also argued on the voir dire that there was then some police behaviour that was unlawful, namely telling him that he would be locked up if he declined to give his particulars, and telling him to take his hands out of his pockets. The appellant argued that this unlawful behaviour and unlawful detention tainted the search which eventually lead to the finding of the methylamphetamine.
The trial Judge found that the initial approach to the accused and questioning him about the disturbance was something the police were entitled to do and it was a necessary incident of that questioning that they directed him to get out of the taxi, if that is what they did. Whether it was a direction or a request is open to debate. He further found that the police were entitled to require particulars of his personal details pursuant to s 74A of the Summary Offences Act 1953 (SA). The trial Judge found that the appellant was misled when he was told that he would be locked up if he did not provide his particulars, but he also found that this remark went nowhere as it was made after he had volunteered his particulars and not before. The trial Judge then found that once Constable Arndt noticed the appellant in possession of the cash, and noticing his attempts to hide the cash, a reasonable suspicion arose justifying the police questioning and detaining the appellant. This, according to the trial Judge, would also justify the further search in which the methylamphetamine was found.
Finally, the trial Judge found that if he was wrong about any of the unlawfulness that was alleged it would not, in the exercise of his discretion, lead to the exclusion of the evidence obtained.
It is against that finding the appellant now appeals.
Appeal
There is one ground of appeal, namely that:
1. The learned trial Judge erred in not excluding the search of the accused person and belongings.
Mr Sale for the appellant argues that at the time the police officers approached the taxi in which the appellant was seated, they would not have held a reasonable suspicion that he was responsible for the altercation in the house to which they were directed. He concedes that the second police car, which was parked across the driveway blocking any exit, came to be in that position only after conversations had commenced. However, by directing the appellant to get out of the car, Mr Sale argues that that amounts to an unlawful detention by the police because of the lack of reasonable suspicion. He argues that they needed more information for that suspicion to arise. He argues that irrespective of what happened later, that unlawfulness continued throughout until the time there was an altercation between Constable Arndt and the appellant about the folder with the cash in it. He further argues that without the original unlawful detention, those drugs would never have been discovered and that unlawfulness taints the whole of that evidence.
Mr Sale also argues that that unlawfulness is exacerbated by the asking of the appellant to produce identification, which is over and above the power conferred by s 74A, and also what Mr Sale describes as the demand of him to remove his hands from his pockets.
Mr Edge for the respondent emphasises that the timeline of these events is important. There is no dispute that from the time the taxi door was opened by the police until there was an argument over the money found in the folder, only about three minutes and ten seconds had elapsed. He further argues that the decision to search, which resulted in the taking of the folder containing the cash and the subsequent search by Senior Constable Rudevics of the appellant and his belongings which commenced after seeing the cannabis and the knife, were clearly lawful and justified. If there was any illegality caused by the direction to get out of the car up until the time the money was discovered in the folder, then the trial Judge was entitled to exercise his discretion to allow the evidence of the search which eventually resulted in the discovery of the methylamphetamine in the possession of the appellant.
Discussion
In my view the detention and search of the appellant, after Constable Arndt had observed the money in the folder and his reactions, were clearly lawful. Looking at the matter objectively, in my view the trial Judge was correct in finding that Constable Arndt formed a reasonable suspicion about the unlawful provenance of the cash. Not only was it the finding of the cash but the appellant’s attempt to hide it, which contributed to that reasonable suspicion. From that point onwards she was entitled to ask the appellant to produce the folder and question him about it, even though the appellant quite legally declined to answer further questions.
Furthermore I find that Senior Constable Rudevics, because of that same behaviour, also had the power search the appellant and the vehicle pursuant to s 68 of the Summary Offences Act 1953 (SA) which reads:
68—Power to search suspected vehicles, vessels, and persons
(1)     A police officer may do any or all of the following things, namely, stop, search and detain—
(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)    there are stolen goods; or
(ii)    there is an object, possession of which constitutes an offence;
        or
(iii)     there is evidence of the commission of an indictable offence;
(b)    a person who is reasonably suspected of having, on or about his or
        her person—
(i)    stolen goods; or
(ii)    an object, possession of which constitutes an offence; or
(iii)     evidence of the commission of an indictable offence.
(2)     In this section—
stolen goods includes goods obtained by the commission of an offence.
Section 52(6) of the Controlled Substances Act 1984 (SA) reads:
52—Power to search, seize etc
(6)An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
Added to that reasonable suspicion entertained by Senior Constable Rudevics was the finding of a knife on the appellant’s person and his subsequent arrest for carrying an offensive weapon. In my view all of the behaviour from the discovery of the money in the plastic folder onwards was lawful.
The question of whether the appellant was unlawfully detained from the time he was asked or told to get out of the taxi until the discovery of the money is more difficult to ascertain. There is an argument to say that the respondent is not aided by s 74A of the Summary Offences Act 1953 (SA) which reads:
74A—Power to require statement of name and other personal details
(1)     Where a police officer has reasonable cause to suspect—
(a)that a person has committed, is committing, or is about to commit,
        an offence; or
(b)that a person may be able to assist in the investigation of an offence or a suspected offence,
the officer may require that person to state all or any of the person's personal details.
(2)     Where a police officer has reasonable cause to suspect that a personal detail as stated in response to a requirement under subsection (1) is false, the officer may require the person making the statement to produce evidence of the correctness of the personal detail as stated.
(3)     A person who—
(a)refuses or fails, without reasonable excuse, to comply with a
        requirement under subsection (1) or (2); or
(b)     in response to a requirement under subsection (1) or (2)—
(i)    states a personal detail that is false; or
(ii)    produces false evidence of a personal detail,
is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
The request (or direction) to get out of the taxi was made before the request for any identification. Not being justified by s 74A at that early stage, there was clearly no reasonable suspicion to detain the appellant. However, in my view that detention, prior to exercising their rights under s 74A, could at best be described as a technical unlawful detention. What the police officers could have done, as suggested by the Chief Justice in dialogue with the appellants counsel, was to immediately ask the appellant for his name whilst he was in the taxi, and if he refused he could have been lawfully arrested and detained. In this case, of course, the detention occurred before the request pursuant to s 74A arose. Therefore, for that unlawfulness during that short of period of time the question is whether the whole of the evidence, including the finding and production of the methylamphetamine, should have been rejected. That involves an assessment of the exercise of the discretion pursuant to the principles set out in Bunning v Cross.[1]
[1] (1978) 141 CLR 54.
The rule in Bunning v Cross confers upon a court a discretion to exclude relevant admissible evidence based on public policy considerations which arise when the evidence has been obtained unfairly or illegally. Stephen and Aickin JJ, delivering the leading judgment of the Court said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law… [T]he discretionary process called for by Ireland … [is] concerned with broader questions of higher public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.[2]
[2] Ibid at 74-75.
Their Honours explained the considerations underpinning the competing principles which inform the exercise of the discretion as follows:
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.… [T]he courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law … [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. (Citations omitted)[3]
[3] Ibid at 77-78.

In my view, in looking at the two competing requirements in this case, the following factors indicate clearly the evidence was properly admitted. They are:
1.   The police officers were in a genuinely difficult, and possibly explosive, situation in the light of the tasking they were given.
2.   They were not to know that the appellant may not have fled the scene, even though there was no reasonable suspicion at that time that he was involved in any illegality which was the subject of the tasking.
3.   The illegality, as described from the time of the opening of the door until the time of the discovery of the money, could have been avoided and the investigation still have been accomplished in the way suggested by the Chief Justice during argument.
4.    The period of time of the illegality was short and in many ways technical.
5.    The ultimate offending was serious.
For all of those reasons, in my view, the trial Judge was correct in finding that if there was any unlawfulness the proper exercise of a discretion will be in favour of inclusion.
Conclusion
I would dismiss the appeal.