Matthews v The Queen - [2020] SASCFC 1

Supreme Court of South Australia
(Court of Criminal Appeal)
MATTHEWS v THE QUEEN
[2020] SASCFC 1
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Auxiliary Justice David)
24 January 2020
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
POLICE - RIGHTS, POWERS AND DUTIES - SEARCH, SEIZURE AND DETENTION OF PROPERTY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Appeal against conviction.
In the early hours of the morning, a police officer followed a Ford motor vehicle into a carpark near Verdun. The Ford pulled up alongside the only other car in the carpark; the appellant’s Jeep. After checking the identity of the driver of the Ford, the police officer backed his police car to a position behind both the Ford and the appellant’s Jeep. The police officer searched the driver of the Ford and his car, and found a significant amount of methylamphetamine and cash. A second police officer arrived to assist shortly after and parked his car in such a way that it blocked the appellant’s exit from the carpark. The second police officer searched the appellant and his Jeep, finding three mobile phones and a plastic bottle containing a clear liquid substance. The first police officer determined that both the Ford and Jeep would be seized and towed to the Mount Barker Police Station. The Jeep was searched the next day and a bottle containing 1,4-butanediol, electronic scales and another mobile phone were seized (the first search). The Jeep was then taken to the Ottoway Police Vehicle Compound for further examination with the assistance of a police mechanic. It was not until almost six weeks after the Jeep was initially seized that it was searched again at the Ottoway Compound. Methylamphetamine and a significant amount of cash were found hidden behind internal panelling (the second search).
At trial, the appellant sought to have the evidence obtained as a result of the first and second police searches excluded on the basis that the Jeep had been unlawfully detained and subjected to unlawful searches. The Judge refused the defendant’s application and admitted the evidence at trial.
The appellant argues on appeal that the Judge erred in allowing the evidence of the first and second searches of the Jeep to be admitted at trial.
Held, per Nicholson J (Peek J and David AJ agreeing), dismissing the appeal:
1. The evidence obtained from both searches was properly admitted.
Controlled Substances Act 1984 (SA) s 32, s 52, s 52D; Summary Offences Act 1953 (SA) s 41; District Court Criminal Rules 2014 (SA) r 49, referred to.
Bunning v Cross (1978) 141 CLR 54, applied.
R v Nguyen [2018] SADC 10, distinguished.
R v Nguyen (2013) 117 SASR 432; R v Golja (1978) 141 CLR 54, discussed.
Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, considered.

MATTHEWS v THE QUEEN
[2020] SASCFC 1
Court of Criminal Appeal: Peek and Nicholson JJ and David AJ

PEEK J: I would dismiss the appeal. I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
Adam Darryl Matthews, the appellant, was convicted of two counts of trafficking in a controlled drug and one count of unlawful possession.[1] Count 1 (trafficking in a controlled drug) relates to the presence of 475.37 grams of 1,4-butanediol or “fantasy” found in the appellant’s Jeep motor vehicle. Count 2 (trafficking in a controlled drug) relates to the presence of 46.5 grams of methylamphetamine found in the appellant’s Jeep. Count 3 (unlawful possession) relates to $10,010 cash also found in the appellant’s Jeep.
[1] Contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and section 41(1) of the Summary Offences Act1953 (SA), respectively.
The appellant’s first trial in the District Court before a jury commenced 29 May 2018. A voir dire was held to determine the admissibility of evidence of two searches leading to the finding of the drugs and money. The trial judge admitted the evidence. On 7 June 2018, a mistrial was declared and the jury discharged before the prosecution case had concluded. A second jury trial before a different Judge commenced on 1 May 2019 at which the appellant was convicted. At the second trial, defence counsel asked the Judge to reconsider the earlier rulings rendering the search evidence admissible. Her Honour found that there was no basis upon which to revisit these rulings and admitted the same evidence in the second trial.[2]
[2] Ruling of Judge Chapman on 1 May 2019.
The appellant applied for permission to appeal against his convictions on the following grounds.
1.The Judge erred in allowing the evidence of the search of the motor vehicle on 3 January 2016 to be admitted at Trial.
2.The Judge erred in allowing the evidence of the search of the motor vehicle on 12 February 2016 to be admitted at Trial.
3.The verdict of the jury should be set aside on the ground that it is unsafe or cannot be supported having regard to the evidence.
A single Judge of this Court granted the appellant permission to appeal on ground 1 and referred grounds 2 and 3 to be heard at the same time before the Criminal Court of Appeal. At the hearing of the appeal, ground 3 was abandoned. For the reasons which follow, I would grant permission to appeal on ground 2 but dismiss the appeal.
Circumstances of the offending
Background
In the early hours of the morning of 3 January 2016, the appellant was seated in the front passenger seat of his Jeep motor vehicle, parked in “Grumpy’s Brewhaus” carpark near Verdun. Russell Steiner was in the driver’s seat of the Jeep. At 1:30 am, a police car followed a Ford motor vehicle into the same carpark. The Ford parked immediately alongside the appellant’s Jeep. Sergeant Hall parked adjacent to the Ford. The appellant exited his Jeep and approached Sergeant Hall to ask what he was doing. Sergeant Hall directed the appellant to return to his vehicle.
Sergeant Hall then had a conversation with Slavko Farcic, the driver of the Ford. He returned to his police car and conducted checks on Farcic’s license and ascertained that Farcic: was a member of the Mongols Outlaw Motorcycle Gang; had a recent conviction for trafficking in cocaine; and was subject to a suspended sentence bond. Sergeant Hall decided to search Farcic and the Ford in reliance on section 52 of the Controlled Substances Act 1984 (SA). He reversed his vehicle to a position behind the Ford and the Jeep, and called for back-up over the police radio. Senior Constable Reid attended the carpark at or about 1:35 am.
Sergeant Hall asked Senior Constable Reid to remain with the occupants of the Jeep whilst Sergeant Hall searched Farcic. Sergeant Hall located a Blackberry mobile phone and two plastic reusable bags on Farcic and found a wallet containing $1,400 cash and 258 grams of methylamphetamine in a plastic bag in the Ford motor vehicle. Farcic was arrested.
The first search of the Jeep
Senior Constable Reid ascertained the identities of the appellant and Russell Steiner. The two policemen at some time discussed arranging for a drug detection dog to attend at which time Senior Constable Reid observed the appellant and Steiner to engage in what appeared to Senior Constable Reid to be a non-verbal physical form of communication with each other following which they immediately lit a cigarette. Senior Constable Reid at that point decided to search the appellant, Steiner and the Jeep, again in purported reliance on section 52 of the Controlled Substances Act 1984.
Senior Constable Reid searched the appellant’s person and found two mobile phones in his pockets. Later, the appellant admitted possession of a third mobile phone found in the centre console of the Jeep.
The Jeep, which was registered to the appellant, was searched (the first search). In the rear of the vehicle, an esky containing drinks and a plastic bottle with a clear liquid substance was located.[3] The appellant denied knowledge of the substance. The item was left in situ. No items of relevance were found on Steiner. Sergeant Hall determined that both the Jeep and the Ford vehicles would be seized. Both vehicles were towed to the Mount Barker police station and secured in the compound.
[3] This clear liquid substance was later identified as 1,4-butanediol.
Later that day, 3 January 2016, police photographed and searched the Jeep during daylight hours at the Mount Barker Police Station. Police seized the bottle containing 1,4-butanediol, two sets of electronic scales and another mobile phone. On 4 January 2016, Detective Brevet Sergeant Cox was briefed by his superiors and Sergeant Hall and determined that the Jeep should be more comprehensively searched. The Jeep was taken to the Ottoway Police Vehicle Compound for further examination with the assistance of a police mechanic.
The second search of the Jeep
Almost six weeks later, on 12 February 2016, the Jeep was searched and photographed by Detective Cox, assisted by Major Crash Investigation Section mechanic Elliot McDonald and crime scene examiner Brevet Sergeant Logan. The second search revealed $10,010 cash behind a fixed panel covering the car stereo unit and a black purse containing two plastic bags of methylamphetamine behind the plastic cowling surrounding the speedometer. Steps were taken by Detective Cox to replace the cash and the methylamphetamine with visually similar materials in the locations in which the cash and drugs had been located. On 28 April 2016, the appellant took possession of the Jeep from the Ottoway Police Compound and was arrested when he took steps to retrieve the substituted drugs and money.
Evidence presented at the voir dire in the first trial
At the first trial, the appellant filed a notice pursuant to rule 49 of the District Court Criminal Rules 2014 (SA) seeking exclusion of all evidence obtained as a result of the police searches of his Jeep. He submitted that the Jeep was detained without lawful authority prior to any of the searches and that it had been subsequently unlawfully seized by police. Sergeant Hall and Senior Constable Reid gave evidence on the voir dire but the appellant did not. CCTV footage of the events at Grumpy’s Brewhaus was also before the Judge.
Sergeant Hall said that he entered the Grumpy’s Brewhaus carpark after he saw the Ford turn into it. He intended to speak to the driver of the Ford. After parking, Sergeant Hall was approached by the appellant. Sergeant Hall told the appellant to get back into his vehicle. In a statement given on 18 January 2016, Sergeant Hall stated that the appellant’s behaviour in approaching him strengthened his suspicion that the parties were known to each other because it is unusual for an occupant of a car to approach police for an unknown reason when police are dealing with another vehicle.
Sergeant Hall said that he did not recall reversing his car behind both vehicles. He denied that this was a deliberate act for the purpose of blocking in the two cars. He said he moved his car so as to enable him to reverse out of the carpark quickly if necessary and gave this explanation.
From the original incident, me pulling in there, I was actually in fear of what I was actually confronted with at the time, being two vehicles, dark, secluded place, industrial area, two vehicles that have no reason to be in this car park and unknown what occupants or who I'm actually dealing with. Obviously I've got the safety of myself to be dealing with, being a solo police officer.
Sergeant Hall did not tell the appellant that he was free to go nor did he tell the appellant that he was not allowed to leave.
Sergeant Hall said that when Senior Constable Reid arrived, his intentions still were focused on Farcic and the Ford. He conveyed this to Senior Constable Reid when he arrived. However, Sergeant Hall did recall saying to Senior Constable Reid that “both the vehicles were there for one purpose”. Sergeant Hall said that Farcic’s visible nervousness, his past criminal antecedents and the two cars meeting in the empty carpark, had caused him to suspect that the two cars were there for a drug transaction. Sergeant Hall said that he was the one who gave the order for the seizure of both cars on the basis that a significant amount of methylamphetamine had been located in the Ford causing Sergeant Hall to form a reasonable suspicion that the two vehicles were involved in a drug transaction. Sergeant Hall denied that the appellant had not been permitted to leave whilst the Ford and Farcic were searched. The Judge accepted the evidence of Hall.[4]
[4] Voir Dire Ruling of Judge Boylan settled 24 April 2019 (Voir Dire Ruling) at [5].
Senior Constable Reid in his evidence said that, upon his arrival at the carpark, his suspicion that the Ford and the Jeep were involved in a drug deal was aroused because: of the time of morning (1.30 am); the premises to which the carpark was attached and all surrounding businesses were closed; there were no other vehicles or persons in the vicinity; and the vehicles were parked well away from the roadway entrance to the carpark and in close proximity to one another, indicating an association or connection between them.
Senior Constable Reid said that Sergeant Hall had told him over the radio: that he needed assistance; that there were two cars with occupants; and one of them had connections to the Mongols. Senior Constable Reid also stated that he did not intend to park his car in such a way that the Jeep and the Ford could not exit the carpark without the police cars being moved. He recalled that the potential drug offending relayed to him by Sergeant Hall was confined to Farcic and did not relate to the appellant. However, Sergeant Hall directed Senior Constable Reid to remain with the appellant and Steiner who were in the Jeep. Senior Constable Reid did not say to either the appellant or Steiner that they were free to go.
Senior Constable Reid said that he formed a suspicion that the appellant and Steiner were in possession of drugs or drugs were in the Jeep when the attendance of a drug detection dog was discussed in proximity to the appellant and Steiner at which time they indicated to one another to light cigarettes, which they did. Senior Constable Reid suspected that their intention was to mask the odour of any controlled substance which the dog might be capable of detecting. The Judge accepted the evidence of Senior Constable Reid.[5]
The findings by the first Judge on the voir dire
[5] Voir Dire Ruling at [6].
The first trial judge made the following findings of fact on the voir dire.[6]
[6] Voir Dire Ruling at [8]-[18].
… Shortly before 1.30 am on 3 January 2016, Sgt Hall was on uniform mobile police patrol in the Hahndorf-Verdun area. He was alone in his police vehicle. As he was driving in a general northerly direction along Old Mt Barker Road near Verdun, he saw an approaching car veer left into the carpark of Grumpy’s Brewhaus. Grumpy’s is in a non-residential, industrial area. Grumpy’s and neighbouring business premises were all closed at that hour of the morning. The carpark of Grumpy’s Brewhaus is secluded and poorly lit. Sgt Hall was suspicious about what the driver of the car was doing and he decided to follow it into the carpark and conduct an alcotest on the driver. There was no suggestion that he was not entitled to do that.
As Sgt Hall pulled his police vehicle into the carpark, he saw that the car which had attracted his attention was a Ford sedan. There was one other car in the carpark, a Jeep station wagon. Hall saw that the driver of the Ford had driven it to the farther side of the Jeep and parked it very close to the Jeep. Hall drove across the carpark and parked his police vehicle near to the Ford.
Hall got out of the police vehicle but, before he could approach the driver of the Ford, a man got out of the passenger side of the Jeep. That man was the accused. He approached Hall and asked him what he was doing. Hall was startled by the accused’s approach and believed that the accused was intimidating him by using standover tactics. I note here that none of Sgt Hall’s evidence about the accused approaching him was challenged. Hall gave the accused a clear direction that he was not dealing with the accused but that he was there to speak to the driver of the Ford. Hall told the accused to get back into his car. The accused did so. Hall did not give any direction to the accused that he accused was obliged to remain at the scene. Hall directed the accused to get back into his car out of Hall’s concern for his own safety. He had good cause to be concerned for his own safety: he had followed a car that was behaving suspiciously into a lonely carpark where that car had parked next to a second car. Immediately upon Hall’s getting out of his vehicle, a passenger from that second car had approached him and spoken to him in an intimidating way. At that stage, Hall did not know anything about the occupants of either vehicle or how many occupants there were in either vehicle.
Hall then walked to the driver’s side of the Ford and spoke to the driver, who was alone in the vehicle. Hall noticed immediately that the driver appeared very nervous and fidgety; his hands were shaking. He produced his driver’s licence which bore the name ‘Slavko Farcic’.
Hall then returned to his motor vehicle and reversed it so that it was generally behind the Ford. He parked his car in that position so that he could reverse out easily if there was any trouble. That is, he moved his vehicle for reasons to do with his own safety. While it is not clear from the CCTV footage whether or not the police vehicle partially blocked the Jeep, I am satisfied that the Jeep was not blocked so that it could not leave the carpark if the driver chose to do so. Hall did not believe that he had blocked the Jeep.
Hall then sat in his motor vehicle and did some checks on the computer. Those checks confirmed that Farcic was a member of the Mongol Outlaw Motor Cycle gang; that he had a recent conviction for trafficking in cocaine; and that he was subject to a suspended sentence bond. Hall told police communications over the radio about the stop and said that he required assistance. Snr Constable Reid heard Hall on the radio. At that stage, Hall still did not know how many people were in the Jeep.
Hall thought that he had stumbled on a drug transaction.
At 1.35 am, Reid arrived. He too was alone in uniform in a marked vehicle. He pulled in behind Hall’s vehicle so that his vehicle ended up parked behind the Jeep. Reid did not intend to block any motor vehicles.
Hall then spoke to Reid, telling Reid of his observations of Farcic’s demeanour; of the accused having confronted him; how Hall believed that the occupants of the cars were there to “meet”; and of Farcic’s drug history.
Shortly after that, Hall searched Farcic. He found him to be in possession of two mobile phones, including a Blackberry, a type of phone regularly used by drug dealers. In Farcic’s underpants, there were two plastic resealable bags. They were empty. Farcic told Hall “I hid them because I thought they looked suspicious”. Hall then searched the Ford. In one of the vehicles airbag compartments, he found a package containing some 263 grams of methylamphetamine.
Meanwhile, Reid had remained at the scene, generally in the vicinity of the Jeep. At some stage, in the hearing of Reid and of the accused and the driver of the Jeep – a man named Steiner – mention was made of the attendance of a police dog at the scene to search the vehicles. Upon hearing mention of the police dog, both the accused and Steiner made some sort of indication to each other and then each lit a cigarette.[7] Reid formed the belief that they had done so in an attempt to try and mask any smell from the drug dog. At that stage, Reid asked them to get out of the vehicle. Shortly thereafter, he searched the accused’s person pursuant to his powers under the Controlled Substances Act and, later still, he searched the Jeep, which was registered to the accused.
(Footnote added)
[7] The CCTV footage of the incident shows both the appellant and Steiner leave the vehicle with what appear to be lighted cigarettes.
The first Judge’s reasons

According to the Judge, Senior Constable Reid was only entitled to search the appellant’s Jeep if he reasonably suspected that it contained any substance or equipment that would afford evidence with respect to an offence under the Controlled Substances Act 1984.[8]His Honour accepted Senior Constable Reid’s evidence that he formed a reasonable suspicion on the basis of the combination of a number of matters including: the time of night; the fact that the appellant’s Jeep was parked next to a car driven and owned by a member of the Mongols; the occupants of the two vehicles were in some way connected; the appellant and the driver of the Jeep had both lit cigarettes immediately upon hearing mention of a drug detection dog; the main job of the Mongols is to sell drugs; and Senior Constable Reid’s awareness that the appellant had approached Sergeant Hall as soon as he had got out of his police vehicle.[9]
[8] Voir Dire Ruling at [20].
[9] Voir Dire Ruling at [21].
His Honour noted that Sergeant Hall ordered the two vehicles to be seized and that Sergeant Hall could only have made this order if he had reasonably suspected that the Jeep contained drugs or drug-related equipment. His Honour concluded that Sergeant Hall believed from a very early stage that he had stumbled upon a drug transaction. Sergeant Hall’s belief was formed due to: the time of night; the location; the position of the two cars; the confrontational approach of the appellant immediately after Sergeant Hall exited his police car; Farcic’s membership of the Mongols Motorcycle Club; and Farcic’s demeanour when spoken to. In addition, the Judge found that by the time Sergeant Hall detained and seized the Jeep, a large quantity of methylamphetamine had been found well hidden in Farcic’s vehicle; a bottle of clear liquid, suspected to be an illegal drug, was found in the Jeep; and a police dog had given an indication that there might be drugs in the Jeep. The Judge found that Sergeant Hall had reasonable grounds for his suspicion and that the subsequent searches of the Jeep at the Mount Barker police station and at the Police Vehicle Compound at Ottaway were lawful.[10]
[10] Voir Dire Ruling at [24].
The Judge found that both police officers possessed the necessary suspicions required under the Controlled Substances Act 1984 to search and seize the appellant’s Jeep. His Honour also found that at no point was the appellant under a de facto arrest. His Honour was not satisfied that, at any time, either police officer had deliberately blocked the Jeep.[11]
[11] Voir Dire Ruling at [25].
The Judge, in any case, would have admitted the evidence in the exercise of his discretion.[12]
If I am wrong in my conclusion that the searches of the accused’s vehicle were [scil: not] unlawful, I would still admit the evidence in the exercise of my discretion. The searches produced evidence of the presence in the accused’s vehicle of large quantities of illegal drugs, together with a large quantity of money. That is cogent evidence of serious offending. This is not a case where, in my view, the police officers exercised their powers under the Controlled Substances Act only on the basis that they suspected that the accused had an association with an outlaw motor cycle gang. While that consideration clearly played a part in their decisions to search and to seize the vehicles, the police relied upon a combination of circumstances. There was, in my view, no blatant disregard for the law. The police officers acted in the genuine belief that they were entitled in the circumstances, to search and seize the accused’s vehicle.
[12] Voir Dire Ruling at [26].
The Judge at the second trial, in reliance on section 132 of the Criminal Procedure Act 1921 (SA), refused to reconsider the Voir Dire Ruling. However, her Honour noted in her reasons that there was another part to the application in the second trial. The appellant had argued that section 52A of the Controlled Substances Act 1984 did not authorise the seizure of the vehicle and that the first trial judge had not given reasons for his ruling on that discrete topic. Her Honour referred to her earlier decision on the same point in R v Nguyen[13] and rejected the submission relied on by the appellant’s counsel.
[13] [2018] SADC 10.
Only the Voir Dire Ruling is challenged on the appeal.
The Law
Subsection 52(9) of the Controlled Substances Act 1984 provides:
(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.
The threshold for a “reasonable suspicion” was considered by the Court of Criminal Appeal in the case of R v Nguyen.[14]
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.[15]
Importantly, s 52(6) and s 52(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.[16] 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.
(Footnotes in original)
[14] [2013] SASCFC 91; (2013) 117 SASR 432 at [21]-[22] (the Court: Kourakis CJ, Blue and Stanley JJ).
[15] Bain v Police (2011) 121 SASR 10, [28]-[29]; R v Rogers (2011) 109 SASR 307, [22].
[16] R v Davidson (1991) 54 SASR 580, 584.
The “reasonableness” of a suspicion is to be evaluated in the context of the purpose of the statutory power and the civil liberties abrogated by its exercise. For a suspicion to be reasonable, the known information from which it arises must rationally produce a suspicion in the mind of the authorised police officer and must be such as would engender that suspicion in the mind of a person thinking reasonably about that information.
The Court in Nguyen also considered the meaning of “detain and search” in subsection 52(9) of the Controlled Substances Act 1984. In that case, it was found that the police had unlawfully detained the appellant by stopping the police car directly behind the appellant’s car in the driveway of a house.[17]
Finally, the power to search vehicles conferred by s 52(9) of the CSA is a power to “detain and search”. The power to detain is to be exercised for the purpose of conducting a search. Constable Koch acknowledged, in cross‑examination, that he and Constable Beatty intended to “detain” the Laser by parking the police car immediately behind. Objectively viewed, any movement of the Laser which might still have been possible along the driveway was so confined by the police car blocking the driveway as to constitute a detention of the Laser.[18] Constables Koch and Beatty acknowledged that they had in mind searching the vehicle, even though Constable Koch’s provisional decision to do so might have been revised depending on who the driver was found to be. It is not to the point that the appellant had already voluntarily stopped the car in the driveway. The common law recognises, in the context of unlawful imprisonment, that that there may be a detention even if the person detained is unaware of the detention.[19]
(Footnotes in original)
Consideration
[17] R v Nguyen [2013] SASCFC 91; (2013) 117 SASR 432 at [30].
[18] Myer Stores Ltd v Soo [1991] 2 VR 597.
[19] Ibid.
The first search – ground 1
By appeal ground 1, the appellant complains that the Judge erred in admitting the evidence of the first search (the search of the appellant’s Jeep on 3 January 2016). This ground has two elements to it: first, that the Judge erred in finding that the police held a reasonable suspicion so as to authorise the initial search in the carpark; and second, that the Judge erred in finding that, having conducted an initial search in the carpark, the police had authority to seize the vehicle and search it again at Mount Barker later that day, on 3 January 2016.
The appellant has submitted that the grounds on which the Judge found Senior Constable Reid to have formed a reasonable suspicion were largely speculative, and that the findings of fact relied on, even if reliable, were not sufficient for a suspicion to have arisen in the mind of a person with that information thinking reasonably.[20] The appellant further submitted that it was not reasonable to have suspected that the occupants of the Jeep were somehow connected to the occupant of the Ford merely because they were in close proximity without any other indication of a connection.
[20] R v Nguyen [2013] SASCFC 91; (2013) 117 SASR 432 at [21]-[22].
The respondent submitted that the factual matters found by the Judge to have been relied on by Senior Constable Reid,[21] in combination, were sufficient to establish a reasonable suspicion, rendering the search lawful. Whilst the close proximity of the vehicles alone might not be sufficient for the police officer to have a reasonable suspicion, the combination of circumstances, as found, was sufficient to render Senior Constable Reid’s suspicion that there was a material substance or equipment in the Jeep a reasonable one.
[21] The trial judge accepted Reid’s evidence; Voir Dire Ruling at [6].
Consistent with the Judge’s findings and on my review of the evidence, the following matters, as summarised in the respondent’s written submissions, were apparent to Senior Constable Reid at the time he decided to search the appellant and the Jeep.
(a)Upon Reid’s arrival the two vehicles were situated in a manner as to arouse suspicion about their being involved in a possible drug deal, in particular due to:
-    The time of morning;
-    The premises to which the carpark was attached and surrounding businesses being closed;
-    There being no other vehicles or persons in the vicinity;
-    The vehicles being parked well away from the roadway entrance to the carpark and in close proximity to one another (about 2 metres apart) indicating an association or connection between them;
(b)The occupant of the Ford, Slavko Farcic, was known to Reid through previous police intelligence reports to be a member of the Mongols OMCG and associated with a known drug dealer, and the primary job of the Mongols is to sell drugs;
(c)In response to police requesting, or speaking about, the attendance of a drug detection dog, the appellant and Steiner, who were both seated in the front of the Jeep at the time, appeared to indicate to one another to light cigarettes and did so, raising a suspicion in Reid’s mind that their intention was to mask any odour of a controlled substance which the dog might be capable of detecting. It was the observation of the cigarette lighting which caused Reid’s suspicion that there were drugs or equipment in the Jeep to crystallise.
The factual basis for Senior Constable Reid’s belief, as relied on by Senior Constable Reid and as found by the Judge, was plainly open to the Judge. His Honour had the usual advantages of having heard and seen both Senior Constable Reid and Sergeant Hall give their evidence and I can find no good reason to interfere with his Honour’s findings. There was a rational connection between this factual basis and the requisite suspicion in the mind of Senior Constable Reid. The factual basis was such as would engender that suspicion in the mind of a person thinking reasonably about that factual basis. Senior Constable Reid reasonably held the requisite suspicion.
However, the appellant also contended by reference to the CCTV footage that the Judge’s finding that Sergeant Hall did not deliberately block both vehicles from leaving on the night of 3 January 2016 was plainly wrong. As I understand the argument, it is contended that the Jeep was deliberately blocked first by Sergeant Hall, and later by Senior Constable Reid, indicating an intention at least by Sergeant Hall to detain the occupants of the Jeep for the purpose of searching them and the vehicles, at a time before any reasonable suspicion had been formed. As such, any subsequent searches, even if based on a reasonable suspicion later formed, were illegal.
The evidence of the CCTV footage together with that of the two police officers, accepted by the Judge, is to the following effect. On arrival, Sergeant Hall parked on a slight angle adjacent to the driver’s side of the Ford; all three cars were effectively parked front in and in parallel. After his initial conversation with Farcic and after checking his identification details, Sergeant Hall reversed his vehicle out and across the rear (in a T-formation) of the Ford. In doing so, he was not intending to block the Ford, that is, prevent it from being able to leave (although this was the effect) and the Judge so found. Sergeant Hall engaged in this manoeuvre because he was alone and had a concern for his safety. He deliberately positioned his vehicle in such a way that he could, if necessary, quickly reverse out of the carpark unimpeded. The Judge expressly accepted this evidence.
The Judge also found, following his review of the CCTV footage and upon accepting Sergeant Hall’s evidence that the positioning of Sergeant Hall’s car did not block the appellant’s Jeep so as to impede it from leaving. The Judge had the advantage of hearing and seeing Sergeant Hall give his evidence. Further, on my review of the CCTV footage, this finding was well open to the Judge and there is no basis upon which his acceptance of Sergeant Hall’s evidence on this point ought be disturbed.
After effecting this manoeuvre approximately two minutes elapsed, during which the Jeep was able to leave, before Senior Constable Reid arrived. On arrival, he parked behind Sergeant Hall’s vehicle. This did have the effect of blocking the appellant’s Jeep. However, he denied having this intention and this evidence was also accepted by the Judge. Again, there is no compelling reason arising from the evidence to interfere with this finding. Neither police officer told the appellant that he was required to remain nor did either tell him he was free to leave. The appellant did not give evidence on the voir dire; as such, his then state of mind, other than that which might be inferred in the circumstances with greater or less cogency, is unknown.
In short, the appellant’s Jeep was not impeded from leaving by Sergeant Hall; it was impeded from leaving by Senior Constable Reid but this was not intentional.
Given that the blocking of the Jeep by Senior Constable Reid was not intentional, I entertain a significant doubt that the appellant was, by this act alone, illegally detained at a time prior to Senior Constable Reid arriving at his reasonable suspicion. Given that neither Senior Constable Reid nor Sergeant Hall intended, at this time, to prevent the appellant from leaving, there was nothing to stop him from asking Senior Constable Reid to move his vehicle. Presumably Senior Constable Reid, consistent with his held intention, would have complied with such a request. If he were to refuse to comply, there is no doubt that an illegal detention thereupon would come about.
Of course, given the appearance with which a police officer in such circumstances is clothed, some citizens in the position of the appellant may apprehend Senior Constable Reid’s actions, in parking his car so as to block the Jeep, to be an implied direction that the appellant was not permitted to leave. Such a citizen may not think to ask for the car to be moved to permit them to leave. If so, the practical reality would be that there had been a detention, albeit one that Senior Constable Reid did not intend. Whether or not the appellant thought that he was no longer free to leave, albeit by requesting that Senior Constable Reid’s car be moved, cannot be known.
I do not need to form a concluded view whether, in the circumstances, any detention that may have been apparent to the appellant was an illegal one given that Senior Constable Reid did not, then, intend to detain. Even if it was, it would be so on a somewhat technical basis and in circumstances where the police officers concerned had not deliberately flouted their legal obligations. There is no suggestion that the police were acting in accordance with an entrenched erroneous view of the nature and extent of their powers. Further, the appellant’s freedom of movement was interfered with in a relatively minor way given that he could have asked to be permitted to leave.
On the other hand, the police searches under challenge disclosed a substantial quantity of drugs and cash and very serious criminal offending. Exercising the residual Bunning v Cross[22] discretion, and like the Judge, I would admit the evidence notwithstanding that Senior Constable Reid had parked his vehicle in such a way as to, unintentionally, prevent the Jeep from leaving.
[22] (1978) 141 CLR 54.
Still under the auspices of appeal ground 1, the appellant next argued that subsection 52(9) of the Controlled Substances Act 1984, properly construed, did not allow for the seizure of the Jeep simply to detain it for the purpose of the further search at Mount Barker police station. It is convenient to again set out subsection 52(9):
(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.
(Emphasis added)
The appellant contended to the effect that the object of the phrase “detain and search” in subsection 52(9)(b) is separate and distinct from the object of the phrase “seize and remove” in subsection 52(9)(c). That is, insofar as a vehicle, vessel or aircraft is concerned, the power is one to “detain and search” that vehicle, vessel or aircraft, whereas, where anything (otherwise compliant with the requirements of subsection 52(9)(c)) within the vehicle, vessel or aircraft is concerned, the power is to “seize and remove” that thing. Subsection 52(9)(c) does not give power to seize the vehicle, vessel or aircraft itself for the purpose of search or any other purpose. The statutory power to search arises from subsection 52(9)(b); it is the product of such a search that can be seized and removed pursuant to subsection 52(9)(c). That construction is undoubtedly correct and follows from the clear language used in the context of subsection 52(9) as a whole.[23]
[23] It follows that, with respect, I do not agree with the construction of subsection 52(9)(c) to be found in R v Nguyen [2018] SADC 10 at [39]-[40].

Subsection 52(9) provides for a coherent interrelated set of powers.[24] Each of (a), (b) and (c) is predicated on the authorised officer in question holding a reasonable suspicion as required by the chapeau of subsection (9). Such an authorised officer may require the driver of a vehicle to stop the vehicle (paragraph (a)). As a practical matter, this usually[25] will be necessary before the powers in paragraphs (b) and (c) can be exercised. After the vehicle is stopped, the authorised officer then may exercise a power to “detain and search” the vehicle (paragraph (b)). The search may or may not produce something that the authorised officer “reasonably suspects would afford evidence of an offence against this Act”. If it does, the authorised officer may “seize and remove from the vehicle” that something.
[24] In the following analysis, I will mainly refer to a vehicle. The same analysis applies to a vessel or an aircraft, mutatis mutandis.
[25] In the present case, the Jeep was already stopped and the police proceeded directly to exercise the power in paragraph (b).
The word “detain’ is protean. It is very much dependent on context for its meaning. In the context of paragraph (b), “detain” means to prevent the vehicle from moving off or leaving after it has stopped. The notion of “detain” can, in suitable contexts, convey a sense of indefiniteness, although sometimes a timeframe will be attached – “X was detained without trial for two years”. In such a case, the detention when initiated may well have been regarded as being for an indefinite period. The timeframe may only have been attached once a decision was made to release X. In any event, the word “detain” does not of itself connote an end point to the detention.
Any statutory power said to justify the “seizure” of the Jeep and its removal from Grumpy’s Brewhaus to the Mount Barker police station to be further searched later that day must be found in subsection 52(9)(b).[26]
[26] The respondent did not endeavor to support or justify the police actions in this matter on the basis of any common law power to seize prospective evidence.
The question arises as to how long might the vehicle be detained for the purpose of such a search? The appellant submitted that, in the absence of any statutory indication of time, the detention of the vehicle would have to be reasonable in all the circumstances. Further, given that a completed search had occurred in situ, it was not reasonable, in the present case, to detain the vehicle for further search at Mount Barker. The respondent contended that the power under subsection 52(9) must be considered in light of the ultimate purpose underlying the enactment of section 52, that is, to afford a means of searching for and seizing and removing evidence of an offence against the Controlled Substances Act 1984.
In the context of subsection 52(9), considered as a whole, “detain” in paragraph (b), must refer to preventing the vehicle from leaving and taking control of the vehicle out of the hands of any other person, including the driver or owner, for an indefinite period but one that is sufficient, with the police acting reasonably (“reasonably sufficient”) to enable the exercise of the powers to “search” the vehicle and subsequently to “seize and remove” any complying product of the search.
Whether or not the period of detention which in fact transpires in a particular case is reasonably sufficient will call for an evaluative judgment based on the particular facts. Further, the fact that the subsection can apply to a vehicle, a vessel or an aircraft, suggests a broad range of considerations may arise in a particular case. The stopping, detaining and searching of any one of these may require a specialised, complex and time-consuming process. Plainly, parliament did not envisage, whether a vehicle a vessel or an aircraft is concerned, that it would be stopped and a quick visual inspection undertaken before sending it on its way.
Considerations will also include matters of safety and environmental factors operating in the location where a vehicle is stopped. It would be unreasonable to have required the two police officers in the present case to conduct and complete a thorough search of the Jeep at 1.30 am with only such artificial lighting then available to them and in the carpark of Grumpy’s Brewhaus.
The power in subsection 52(9) is limited by a requirement that the search be reasonable in all the circumstances.[27] There is no warrant to adopt a narrow construction of the word “detain” so as to confine the power to search a vehicle, vessel, or aircraft to the location at which it is stopped. The evidence being searched for is of an illicit nature and capable of being concealed in a vehicle, vessel or aircraft in such a way as to require specialist examination in order to locate it.[28] As such, it will often be impractical to expect police to immediately conduct a sophisticated examination at the site at which a vehicle, vessel or aircraft is intercepted and is stopped by police.
[27] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 296-297.
[28] Amply illustrated by the facts of the present case.
Whilst the word “seizure” was used by Sergeant Hall in his evidence, he was in fact “detaining” the vehicle at the time it was searched both at Grumpy’s Brewhaus and at Mount Barker. The requirement that the search be reasonable does not require the police to undertake it in the dark early hours of the morning in a relatively remote parking spot without the assistance permitted by subsection 52D(2) of the Controlled Substances Act 1984.[29]
[29] Subsection 52D(2) of the Controlled Substances Act 1984 (SA) provides that an authorised officer may, in exercising power under this Part, be assisted by such persons as the authorised officer considers necessary or desirable in the circumstances.
Save for the possibility that the parking of Senior Constable Reid’s vehicle gave rise to an unlawful detention of the appellant, I am satisfied that the police acted reasonably in seizing the Jeep and conducting the further search at Mount Barker. To this extent, the search of the Jeep, up to and including at Mount Barker police station on 3 January 2016, was lawful and in accordance with the power conferred by subsection 52(9). Even if there had been an unlawful detention by Senior Constable Reid then, for the reasons earlier given I would admit the evidence. I would dismiss appeal ground 1.
The second search[30] – appeal ground 2
[30] Also referred to as the Ottoway search.
The appellant contends that it was also beyond the scope of subsection 52(9) of the Controlled Substances Act 1984 for the Jeep to have been detained by the police for the subsequent search on 12 February 2016 at the Ottoway compound and that the evidence thus acquired should not have been admitted at trial.
The appellant in his written submissions on ground 2 also argued that the seizure of the car for almost six weeks without arresting the appellant meant that the police had no ongoing powers to retain the vehicle and conduct a further search. However, this contention was abandoned by the appellant at the hearing of the appeal.
The appellant argued that the period during which the police held the appellant’s car (almost six weeks) before conducting the Ottoway search was a significant encroachment on the appellant’s civil liberties, that such searches should be conducted swiftly and, in the circumstances, the police had detained the car for an unreasonable period of time.
Detective Cox in his evidence given during the trial said that on 4 January 2016 he was briefed by Sergeant Hall and superior officers as to the events that took place at Grumpy’s Brewhaus carpark the night before. Detective Cox suspected that there were further drugs in the Jeep and concluded that a further search of the Jeep would require the assistance of a major crash mechanic to conduct a search in a manner that would not activate the airbags. When asked during cross-examination why the process took six weeks, Detective Cox responded that he was subject to the “timing and the scheduling available to have the mechanics and the crime scene officers available to be able to assist”. The respondent submits that the detention and search of the Jeep were reasonable in the circumstances.
The appellant does not dispute that Detective Cox had a reasonable suspicion as required by subsection 52(9) before ordering that a further search of the Jeep take place at Ottoway. The question asked by appeal ground 2 is whether or not the conduct of the police fell within the power to detain and search the Jeep conferred by subsection 52(9)(b).
Detective Cox has given an explanation as to why it took almost six weeks to arrange and complete the Ottoway search. The search was conducted by a Major Crash Investigation mechanic and a crime scene examiner. According to Detective Cox, care and precision in disassembling the vehicle and recording the process was required.
The evidence of Detective Cox was not challenged and there is no direct evidence before the Court to suggest that the police were negligent or unnecessarily dilatory in their conduct. The appellant did not actively seek the return of his vehicle during the period leading up to the search. As such, and whilst the appellant’s property rights were interfered with, there is no direct evidence as to any detriment suffered by the appellant in being deprived of the Jeep during that period. There was some correspondence between the appellant’s solicitor and Detective Cox in March, that is, after the Ottoway search had been completed and the drugs found.
In all the circumstances, I am not satisfied that the police acted unreasonably in detaining the Jeep up until the completion of the Ottoway search. They acted within the powers conferred by paragraphs (b) and (c) of subsection 52(9). The appellant has not shown the Ottoway search to have been unlawful and the Judge was correct to admit the evidence thus found.
The respondent has submitted that if the Ottoway search was unlawful, the Bunning v Cross[31] discretion should be exercised in favour of admitting the evidence. In R v Golja,[32] Stanley J explained that an exercise of this discretion involves weighing competing public interest considerations.
… While the court must be careful to protect the citizen from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power.
[31] (1978) 141 CLR 54.
[32] [2017] SASCFC 61 at [35].
In this case, the cogency of the evidence obtained and the seriousness of the offences, weigh strongly in favour of admitting the evidence. There is a strong public interest in the prosecution of such offences. Detective Cox’s experience as an investigator included knowledge that persons engaged in drug trafficking will hide items inside internal panels to avoid detection and rendering a comprehensive search more difficult and time consuming. The combination of factors in this case indicates that police were not consciously abusing their powers to detain and search the Jeep. There is no need to publicly censure a deliberate abuse of police power or to correct an entrenched misunderstanding of the proper bounds of the relevant power. If the search had been unlawful, any misexercise of the available power in this case would not warrant exclusion of the evidence.
Conclusion
I would grant permission to appeal on ground 2 but reject both grounds 1 and 2 and dismiss the appeal.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Nicholson J and the orders he proposes.