HARVEY v Police - [2006] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARVEY v POLICE
[2006] SASC 222
Judgment of The Honourable Justice Debelle
27 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - UNLAWFUL USER OR POSSESSION OF MOTOR VEHICLE
Appeal against conviction and sentence - using motor vehicle without consent - validity of police undercover operation - whether undercover operation amounted to entrapment - whether prosecution evidence inadmissible on ground that it had been unlawfully obtained - whether appellant had been wrongfully imprisoned - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 86A; Criminal Law (Undercover Operations) Act 1995 (SA) s 2, s 3, s 4; Motor Vehicles Act 1959 (SA) s 91; Police Act 1998 (SA) s 5; Road Traffic Act 1961 (SA) s 5; Summary Offences Act 1953 (SA) s 75, s 78, s 79A, referred to.
R v Dindsdale (2000) 202 CLR 321; Ridgeway v The Queen (1995) 184 CLR 19, applied.
Christie v Leachinsky (1947) AC 573; Kowald v Hoile (No 2) (1976) 14 SASR 314; R v Campanella (2004) 90 SASR 1; R v Conley (1982) 30 SASR 226; R v Giaccio (1997) 68 SASR 484, considered.

HARVEY v POLICE
[2006] SASC 222
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal against both conviction and sentence.
The appellant was charged with two offences. Both were alleged to have occurred on 7 March 2004 on the Esplanade at Semaphore. The first was using a motor vehicle without first obtaining the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act 1935. The second was driving a motor vehicle on the Esplanade whilst disqualified from holding or obtaining a driving licence, contrary to s 91 of the Motor Vehicles Act 1959. The appellant pleaded not guilty. After a hearing before a magistrate, he was convicted and sentenced to imprisonment for a period of six months. He was also disqualified from holding or obtaining a driving licence for a period of 12 months.
On instituting this appeal, the appellant was released on bail pending the determination of the appeal.
The grounds of appeal all raise questions of law. There was no dispute as to the relevant facts.
Operation Stop Car Thief
The offending was detected in the course of a police operation to detect car thieves. “Operation Vigil” is the name given to describe police operations in relation to the detection of motor vehicle crime in South Australia. One aspect of Operation Vigil is called “Operation Stop Car Thief” which is conducted pursuant to an arrangement between the Police Department and the Royal Automobile Association of SA Inc (“the RAA”). Under that arrangement, the RAA provides to the Police Department a number of vehicles which have been modified by the RAA. The RAA provides the vehicles to the police knowing that they will be used as part of the Stop Car Thief Operation.
Modifications are made to the interior door handles and window mechanisms so that the windows and door handles cannot be operated from inside the vehicle. Once a person gets inside the vehicle, that person can neither open a door nor open the windows. Using a remote control device, a police officer can also prevent the windows from being opened electrically. The ignition system has also been modified so that a police officer can use the same remote control device to disengage the ignition system causing the vehicle to stop. For convenience, I will call the modified vehicle “the RAA vehicle”.
Operation Stop Car Thief proceeds in this way. The police place the RAA vehicle in a location known to the police as being a location where there is a high incidence of theft of motor vehicles. The general practice is to leave the RAA vehicle with the key remaining in it and in a prominent position. Either the key is left in the ignition with the door unlocked, or it is left on the outside of the driver’s door, or it is left on the bonnet or roof of the vehicle or in some other position where it can be readily seen. A police officer in plain clothes sits in an unmarked police vehicle and will keep the vehicle under surveillance. The police officer will also have a video camera mounted inside the police vehicle and trained on the RAA vehicle. Any incident involving the illegal use of the RAA vehicle is videotaped. If a member of the public should get into the RAA vehicle and start the engine and begin to drive off, the police officer will use the remote control device to stop the vehicle and to prevent the windows from being opened. The person in the vehicle will then be approached and, in the absence of an innocent explanation for his conduct, will be arrested.
From time to time these RAA vehicles are placed in a car park of a shopping centre. On occasions a member of the public has taken the keys from the vehicle to the security office at the shopping centre. In that event, the member of the public may be intercepted before reaching the security office and will not be arrested or charged.
The Undercover Operations Act
The Criminal Law (Undercover Operations) Act 1995 (“the Undercover Operations Act”) provides a means by which a senior police officer may approve undercover operations for the purpose of gathering evidence of serious criminal misbehaviour: see s 3 of the Act. Section 4 provides an immunity for criminal liability for any authorised participant in the undercover operation. Later in these reasons, I decide that Operation Stop Car Thief is an undercover operation within the meaning of the Undercover Operations Act. Operation Stop Car Thief has not been authorised pursuant to the Undercover Operations Act.
An opportunity to offend
On the occasion the subject of this appeal, the RAA had provided the police with a modified Holden Calais knowing that it was to be used in Operation Stop Car Thief. The RAA had not given consent to any person other than the police to use the car. The RAA was aware that the Calais was to be used in Operation Stop Car Thief on the footing that no person other than an employee of the South Australian Police had permission to use or interfere with the car. The evidence showed that the RAA knew that the Calais was to be used for the purpose of seeing if a person would use the keys for the purpose of illegally using it. In short, the RAA knew that someone might use the Calais to commit an offence.
On 7 March 2004 police parked the Calais on the Esplanade at Semaphore in an area known for a high incidence of car theft. The keys of the Calais were left in the driver’s door, plainly visible to a passer-by. One police officer in plain clothes, Constable Cullen, was in an unmarked police car parked nearby with a video camera trained on the Calais. He was in radio contact with two other officers who were in a police car a short distance from the Calais. The operation had not been approved pursuant to the Undercover Operations Act.
The alleged offending
The appellant crossed the Esplanade and walked close by the driver’s side of the Calais. As he did so, he removed the keys from the car door. He then moved around the rear of the Calais towards sand dunes and vegetation between the Esplanade and the seashore. He walked in a circular direction around the sand dunes for a minute or two and then returned to the Calais. He opened the driver’s side door and sat in the driver’s seat. He started the Calais with the key he had taken. When he began to drive forward, Constable Cullen used the remove control device to disengage the ignition so that the car stopped. The appellant was then arrested and charged with the offence. He exercised his right to silence. He did not give evidence at his trial.
An objection to the police evidence
Mr Mancini, who appeared for the appellant both at the trial and on this appeal, objected to the prosecution evidence. He submitted that it had been obtained illegally, improperly or unfairly. Shortly stated, the objection was grounded on what Mr Mancini called “the entrapment of the appellant” and the fact that the operation was not authorised pursuant to the Undercover Operations Act. Mr Mancini agreed that the prosecution evidence could be led subject to the objection and on the footing that he could present his argument as to why the evidence should not be admitted at the close of the prosecution case. At the close of the prosecution case the appellant did not call any evidence. Mr Mancini presented a number of arguments in opposition to the admissibility of the evidence and in support of other grounds contending that the appellant could not be convicted. All of these arguments were repeated on this appeal. I set them out in more detail later in these reasons. The magistrate rejected all of the arguments and convicted the appellant.
The question of consent
The first ground of appeal is that the magistrate erred in finding that the appellant had used the car without the consent of the owner. The appellant contends that, by reason of the arrangements between the RAA and the Police Department, Constable Cullen was the bailee of the Calais. Section 86A(7) of the Criminal Law Consolidation Act defines “owner” as having the same meaning as in the Road Traffic Act 1961. Section 5 of the Road Traffic Act defines “owner” as including “a person who has possession of the vehicle by virtue of the hire or bailment of the vehicle”. I am content to accept for the purposes of the appeal that Constable Cullen had possession of the RAA vehicle as bailee for the RAA.
The appellant then contends that, as bailee, Constable Cullen had acquiesced in the appellant using the Calais and so had consented to that use of the Calais. Constable Cullen had seen the appellant take the key, walk about the area, return to the motor vehicle and get into it and begin to drive away. He did not intervene at any stage. He did nothing to prevent the appellant from starting the car or driving it away. It is on that footing that the appellant says that Constable Cullen acquiesced in the appellant’s conduct.
The argument misconceives the facts. Constable Cullen did not at any time acquiesce in the use of the Calais by a third party. He had not parked the car on the Esplanade and left the key in the door for the purpose of allowing a third party to use the car or interfere with it in any way. His only purpose was to keep the car under observation and see whether any person was prepared to use it illegally.
Mr Mancini contended that the use of the Calais by the appellant was analogous to the use of a parent’s car by a child. The child might use the car without express permission, believing that the parent is acquiescing to the use of the car. The analogy is without foundation. There might be occasions when a child uses a parent’s car believing that the parent acquiesces. That belief as to the parent’s acquiescence will be founded on past conduct, on the family situation, or on a belief that the consent might be retrospectively obtained. The appellant had no grounds at all for believing that he had the consent of the owner or would ever obtain consent. He did not even know who the owner was.
The fact that Constable Cullen did not prevent the appellant from starting the car and driving a short distance did not constitute a consent on his part to the use of the car nor any acquiescence on his part to the use of the car by the appellant. He simply observed the offending and very quickly took steps to stop it and, with the assistance of other police officers, arrested the appellant. The fact that the appellant was arrested is one indicator of the fact that Constable Cullen did not acquiesce in the appellant’s conduct.
Mr Mancini’s argument flies in the face of the terms of s 86A(1) of the Criminal Law Consolidation Act which provides:
(1)A person who, on a road or elsewhere, drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
It will be noticed that the use of another’s motor vehicle will be lawful only if the consent is obtained before the vehicle is used. The appellant did not know who was the owner of the Calais and must have known that he would not be able to obtain the owner’s consent. He had done nothing towards obtaining consent before he used the car and he did not know from whom he should obtain consent.
This ground of appeal therefore fails.
The validity of the undercover operation
The next three grounds of appeal concern different aspects of the validity of the undercover operation and the admissibility of the prosecution evidence. There are two questions, first whether the operation fell within the terms of the Undercover Operations Act and then, if it did, what was the consequence of a failure to obtain authorisation under that Act. The magistrate held that the Act did not apply so that there was no consequence for the admissibility of the evidence.
The magistrate’s reasons for holding that the Undercover Operations Act did not apply were that the primary purpose of the Act was to provide immunity to police officers who engage in undercover operations as part of which they carry out activities which would otherwise be illegal. It was not the intention of the Act, the magistrate said, that it would apply to every surveillance operation lawfully conducted by police, especially as they are an ordinary part of police detection procedures. The magistrate’s conclusion is at odds with the definition of “undercover operation” in s 2 of the Undercover Operations Act. The definition is in these terms:
undercover operations means operations (which may include conduct that is apart from this Act illegal) of which the intended purpose is to provide persons engaging or about to engage in serious criminal behaviour an opportunity to –
(a) manifest that behaviour; or
(b) provide other evidence of that behaviour.
Section 2 also defines “serious criminal behaviour” in terms which include “an indictable offence”. An offence against s 86A of the Criminal Law Consolidation Act is a minor indictable offence. The activities involved in Operation Stop Car Thief are undercover operations within the meaning of that definition in that the intended purpose is to provide persons engaging in or about to engage in committing the offence of using another’s motor vehicle without consent to manifest that intention. Operation Stop Car Thief is, therefore, an undercover operation within the meaning of the Act. Although the purpose of the Act is to provide an immunity to those police officers who may be involved in illegal activity in the course of an undercover operation, the fact remains that the definition is expressed in terms which include Operation Stop Car Thief.
Mr Mancini submitted that the failure to obtain authorisation under the Undercover Operations Act had the consequence that the evidence of the police surveillance was illegal or improper and ought not to have been admitted. His argument misconceives the effect of the Act and must be rejected. The purpose of the Act is to establish a mechanism for the approval of undercover operations and to provide immunity for police officers participating in the operation: R v Giaccio (1997) 68 SASR 484 at 496. What is particularly to be noted for the purpose of this appeal is that the Act does not state that the police may not engage in an undercover operation unless they have first obtained approval under the Act. It simply means that those who do engage in the operation will not have the benefit of the immunity provided by s 4. In other words, the Act does not require all undercover operations to be approved pursuant to the Act. At no time in the course of the detection of the appellant’s offending on 7 March 2004 did the police officers involved engage in any illegal conduct. The police officers did no more than park the Calais, leave the keys in the driver’s door, and keep the vehicle under surveillance. The position was no different from those occasions when a driver inadvertently leaves keys in a motor vehicle. Thus, although the Undercover Operations Act applied, it has no relevant consequence for this appeal. There is no ground on which the court should hold that the evidence was illegally or improperly obtained.
An entrapment?
The next three grounds of appeal effectively constitute a submission that the police had engaged in conduct amounting to entrapment and that the magistrate had erred in not excluding the police evidence and in not granting a permanent stay of proceedings. Mr Mancini submitted that the police provided the appellant with the means to commit the offence and encouraged and induced him to commit it as well as facilitating the commission of the offence by taking no action to prevent it.
There is no defence of entrapment in Australia: Ridgeway v The Queen (1995) 184 CLR 19. However, where the commission of the offence has been brought about by unlawful conduct of police officers, the court has a discretion to exclude the evidence: Ridgeway at 31. Similarly, the court has a discretion to exclude evidence where the offence has been induced by improper, though not unlawful, conduct on the part of police officers: Ridgeway at 37 per Mason CJ, Deane and Dawson JJ and at 77 per Gaudron J. At the same time, it is necessary to acknowledge that police investigation of some kinds of criminal activity may involve conduct which goes no further than providing an opportunity to offend. In those circumstances there is no bar to the reception of the evidence. In Ridgeway at 37, Mason CJ, Deane and Dawson JJ dealt with that question in these terms:
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged.
Gaudron J commented at 77 that, where police do more than provide an opportunity to offend, “the accused person is fairly regarded as wholly responsible for his own actions”. The police conduct which is the subject of this appeal is an instance of police officers doing no more than providing an opportunity to commit an offence. The police acted neither illegally nor improperly. They merely parked the car, leaving the keys in it. The police did no more than provide an opportunity for a person with criminal intent to manifest that intention. There is, therefore, no ground to exclude the evidence. This ground of appeal, therefore, fails.
A false imprisonment?

Mr Mancini then contended that the prosecution evidence should be excluded on the ground that the appellant had been wrongfully imprisoned in the Calais so that the police did not effect a lawful arrest. The submission is grounded on the fact that the modifications to the car doors and windows prevented the appellant from getting out of the vehicle and that Constable Cullen had operated the remote control device to stop the Calais. Mr Mancini submitted that the fact that the appellant was prevented from getting out of the car constituted a false imprisonment which was compounded by the fact that the car was stopped by the remote control device. The time which elapsed between the car being stopped and the arrest of the appellant was, he submitted, a period of false imprisonment. The effect of Mr Mancini’s argument is that a thief who is prevented by some automatic means from leaving the scene of the crime until police arrive is illegally detained. On this argument, a thief who had removed a painting from a wall of an art gallery is illegally detained if the removal of the painting triggers a device which prevents the thief from leaving the building.
Section 75 of the Summary Offences Act 1953 provides:
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
Section 78 of the Summary Offences Act further provides:
78(1) Subject to this section, a person who is apprehended without warrant must be forthwith delivered into the custody of the police officer in charge of the nearest police station.
(2) Where a person is apprehended, without warrant, on suspicion of having committed a serious offence, a police officer may, for the purpose of investigating the suspected offence -
(a)detain that person, prior to delivering him or her into custody at the nearest police station, for so long as may be necessary to complete the investigation of the suspected offence, or for the prescribed period, whichever is the lesser; and
(b)take that person, or cause him or her to be taken, during the course of detention under this subsection, to places connected with the suspected offence.
A person is apprehended for the purposes of s 75 and s 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used: R v Conley (1982) 30 SASR 226 at 239 per King CJ.
The act of Constable Cullen in using the remote control device to stop the Calais was but the first in a series of acts by which the police officers first apprehended the appellant and then arrested him. The time which elapsed between Constable Cullen using the device to stop the Calais and the arrest of the appellant was less than one minute. As soon as reasonably practicable after the police had stopped the Calais, they formally informed the appellant that he was under arrest and the reason for the arrest. In that respect, it was a valid arrest: Christie v Leachinsky (1947) AC 573. They also informed him of his rights in compliance with s 79A of the Summary Offences Act. The remote control device was used to prevent the appellant from escaping from the Esplanade in the stolen Calais. A police officer is, in my view, entitled to take reasonable steps to prevent an offender from fleeing the scene in order that he might then apprehend and arrest him. In my view, that is a corollary of the principle that a police officer is entitled to use reasonable force to effect an arrest. That is what occurred on this occasion. Modern technology was used to prevent an offender from escaping and as a means to assist in effecting an arrest. Once the Calais had stopped, the police officers immediately approached the car and arrested the appellant. There was not in any sense an illegal detention. If it is suggested that the appellant was effectively arrested when the Calais was stopped by the remote control device, he was informed of the reason for the arrest within what on any view was a reasonable time. This ground of appeal also fails.
A breach of the Police Act?
The appellant’s last ground of appeal is that the conduct of the police was illegal in that they failed to apprehend the appellant before he committed the crime of illegally using the Calais. The argument is founded on s 5 of the Police Act 1998 which lists the purposes for the existence of the South Australian Police. One of those purposes is to reassure and protect the community in relation to crime and disorder by the provision of services to prevent crime. Mr Mancini contended that that statutory duty must prevail over an operation of this kind so that, once the police had seen the appellant take the key and walk about near the car, they should have intervened to prevent the appellant from committing the offence.
The argument proceeds on the footing that police cannot engage in an operation to trap an offender. There is no foundation for that submission. One means of seeking to prevent crime is to trap offenders in this way with a view to deterring the offender and others from re‑offending. Furthermore, when exercising the powers of arrest in s 75 of the Summary Offences Act, a police officer has a discretion as to the time when he should make the arrest. Although s 75 also authorises a police officer to arrest a person whom the officer has reasonable cause to believe is about to commit an offence, it is nevertheless reasonable for the police officer to stay the arrest until satisfied that an offence has been committed. The fact that the appellant had taken the key did not necessarily mean that he was going to use the Calais illegally. For all the police knew, he might have been intending to hold the key until the owner returned. The mere taking of the key did not necessarily mean that he was going to offend. The police were, therefore, justified in waiting to see whether the appellant was going to drive the car away unlawfully. This ground, therefore, fails.
The last ground of appeal is that the magistrate erred in failing to stay the prosecution on the grounds of illegality, unfairness or impropriety. As Mr Mancini acknowledged, this ground is based on the grounds already mentioned. It must, therefore, fall with them.
For all of these reasons, the appeal against the convictions must be dismissed.
The appeal against sentence
The appellant appeals against the sentence of six months imprisonment on two grounds. The first is that it is manifestly excessive and the second is that the magistrate ought to have suspended the sentence. The main issue, said Mr Mancini, was whether the sentence should have been suspended.
The appellant was aged 29 years when sentenced. He has a relatively large number of previous convictions, the first in 1992 when aged 16 years. His record includes 11 convictions for illegal use of motor vehicles in breach of s 86A of the Criminal Law Consolidation Act. The last of those offences occurred in March 2001. He has also been convicted of driving whilst disqualified from holding or obtaining a driving licence on 11 occasions, the last being in April and May 2001. The appellant’s last appearance in court was on 5 February 2003 in respect of offences committed in 1999 which included the offence of illegal interference with a motor vehicle. His next last appearance in court was on 8 March 2002 in respect of the offending in April and May 2001.
The appellant has been imprisoned on at least eight occasions for varying periods of time up to 27 months. He has been imprisoned for the offences of using a motor vehicle without the consent of the owner on a number of occasions.
As the appellant has been convicted of previous offences against s 86A of the Criminal Law Consolidation Act, the penalty for this offending was for a term of imprisonment of not less than three months and not more than four years. In addition, as he had prior convictions for driving whilst disqualified from holding or obtaining a driving licence contrary to s 91 of the Motor Vehicles Act, the maximum penalty was a sentence of imprisonment for two years.
The magistrate was aware of the personal circumstances of the appellant and had regard to them. They are set out in the magistrate’s remarks when sentencing the appellant. As they concern his personal and private circumstances I will not repeat them. He was aware also of the fact that the appellant’s prospects of rehabilitation had improved because he had entered into gainful employment. The magistrate also took the view that the reasoning in R v Campanella (2004) 90 SASR 1 did not apply. The magistrate imposed one penalty for both offences. He believed that a sentence of imprisonment for nine months was appropriate but he reduced the sentence to six months because the appellant has spent a period on home detention bail.
I respectfully agree with the magistrate that this was not a case where the sentence should reflect the fact that the appellant was arrested as a result of an entrapment. The circumstances of this case are altogether different from those in Campanella where the offence would not have been committed but for a degree of pressure from a friend of the appellant in that case who was acting on the instructions of the police officer. By contrast, in this appeal, there was no inducement other than the mere fact that the car was parked in a public street with the keys still in it, a circumstance which occurs in ordinary experience.
Given the appellant’s prior record the sentence is not manifestly excessive. The minimum which could be imposed for the illegal use of the Calais was a period of three months imprisonment and a maximum of four years imprisonment. In addition, there must be a sentence for the offence of driving whilst disqualified. The sentence ordered was at the lower end of the scale. The sentence plainly reflects the fact that the magistrate had regard to the personal circumstances of the appellant and the nature of the offending.
The magistrate expressly considered whether it was appropriate to suspend the sentence. He took the view that the penalty had to serve as both a general and personal deterrent and, for that reason, refused to suspend the sentence. The question of deterrence is a relevant factor when considering whether to suspend a sentence: R v Dinsdale (2000) 202 CLR 321, where it was held that the same considerations are relevant both to the determination of a sentence and the question whether a sentence should be suspended. The exercise of the discretion to impose a suspended sentence is not confined to factors personal to the offender: Dinsdale at 329 per Gleeson CJ and Hayne J. Furthermore, the question of personal deterrence is a relevant factor when considering whether to suspend a sentence. It is apparent from his sentencing remarks that the magistrate took the view that the appellant was not prepared to obey the law nor orders imposed by a court. The submission that the appellant had rehabilitated himself is belied by his willingness to offend on this occasion, offending which included flouting the order of the court disqualifying him from driving. It was appropriate for the magistrate to consider whether the appellant would reform his conduct and he concluded that it was not: cf Kowald v Hoile (No 2) (1976) 14 SASR 314 at 319 – 320. It has not been demonstrated that the magistrate erred in the exercise of his discretion not to suspend the sentence.
The appeal against sentence must, therefore, be dismissed.
Conclusion
For these reasons the appeal against both convictions and the sentence are dismissed.