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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Matthews v The Queen

Details

AGLC: Matthews v The Queen [2020] SASCFC 1
Case: [2020] SASCFC 1
Decision Date: 24 January 2020

CaseChat Overview and Summary

The appeal concerned the admission of evidence obtained from a search of the appellant's vehicle. The appellant argued that the vehicle was detained and searched without lawful authority. The initial search of the Jeep occurred on 3 January 2016, followed by a second search on 12 February 2016, which uncovered methylamphetamine and cash. The appellant was subsequently arrested when he attempted to retrieve the substituted items. The core of the dispute revolved around whether the police had a reasonable suspicion to justify the initial search and subsequent seizure of the vehicle.

The legal issues before the court were whether the Judge erred in finding that the police possessed a reasonable suspicion to authorise the initial search of the Jeep in the carpark, and whether the police had the authority to seize the vehicle and conduct a further search at a different location later that day. The appellant contended that the grounds for the police's suspicion were speculative and insufficient, particularly the mere proximity of his vehicle to another. The respondent argued that the combination of factual circumstances, as found by the trial judge, was sufficient to establish a reasonable suspicion that the Jeep contained a material substance or equipment.

The court considered the meaning of "detain and search" under relevant legislation, drawing on precedent that a detention can occur even if a person is unaware of it, and that the power to detain is for the purpose of conducting a search. While acknowledging the appellant's submission that close proximity alone might not suffice for a reasonable suspicion, the court found that the combination of factors, as accepted by the trial judge, rendered the suspicion reasonable. The court also noted that the cogency of the evidence, the seriousness of the offences, and the strong public interest in prosecuting such offences weighed in favour of admitting the evidence. The court concluded that even if the search had been unlawful, the misexercise of power in this instance would not warrant the exclusion of the evidence, as there was no indication of a deliberate abuse of power or a misunderstanding of the proper bounds of police authority.

Ultimately, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

NICHOLSON J (dissent)

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.

Ratio Decidendi

Legal Principle Established

Established by:

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].