Police v Moukachar - [2010] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MOUKACHAR
[2010] SASC 199
Judgment of The Honourable Justice Vanstone
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
POLICE - RIGHTS, POWERS AND DUTIES - OTHER POWERS AND DUTIES
Appeal against dismissal of a complaint - appellant charged with unlawful possession of a sum of money - magistrate dismissed the complaint after excluding the evidence of the money and then finding no case to answer - evidence was excluded on basis it had been revealed during an illegal search - whether the conduct of the police involved illegality or impropriety so as to enliven the public policy discretion.
Held: appeal allowed - police conduct did not involve any illegality or impropriety - no occasion to consider the public policy discretion - order dismissing the complaint set aside - matter remitted for rehearing.
Summary Offences Act 1953 s 41(1), s 74A, s 74AB; Motor Vehicles Act 1959 s 96(1), referred to.

POLICE v MOUKACHAR
[2010] SASC 199
Magistrates Appeal

VANSTONE J: The respondent was tried in the Magistrates Court for unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953.
On 22 May 2009 he was seen by police to be driving along Pulteney Street, Adelaide, with his arm extending outside his car window.
After following him for a short time, the police, in an unmarked vehicle, pulled over the respondent’s vehicle and questioned him as to his identity. The respondent told police that he did not have a driver’s licence and did not think that he had any other photographic identification. Police pointed to a bag which he was wearing around his waist, asking whether it might contain anything to identify him. Police told him: “We have to establish your identity or you may be arrested.” When the respondent opened part of the bag, a large bundle of $50 notes was revealed. The respondent said that the money amounted to $30,000. When asked where he got it he replied: “I’d rather not say. I just have to take it where it has to go.” He was then arrested.
The first issue at trial was whether the evidence of the money should be excluded, it being suggested that police had exceeded their authority in making inquiries about the contents of the bag. The evidence was taken de bene esse. At the end of the police case the magistrate ruled, in effect, that an illegal search had been conducted and that the evidence should be excluded. A submission of no case to answer was then upheld.
Police now appeal against the dismissal of the complaint, arguing that the evidence of the cash should not have been excluded.
It is said that the police conduct did not involve illegality or impropriety and, accordingly, the public policy discretion did not arise. In the alternative, it is argued that, even if there were impropriety, a proper consideration of the relevant competing factors would not have led to the exercise of the discretion to exclude the evidence.
Background
In order to consider this issue it is necessary to look closely at the conversation between the police officer, Sergeant Kotaras, and the respondent. The evidence of the police officer as to the conversation follows. Apart from cross-examination about the way the conversation started, the account was unchallenged. For convenience, I shall number the questions.
1.Q.    Do you have your driver’s licence on you?
A.    No.
2.Q.    Where is it?
A.    I don’t have it.
3.Q.    Why not?
A.    It was cancelled back in 2006.
4.Q.    Do you have any identification?
A.    Yes.
At that point the respondent was described as “returning to the vehicle and having a look through it for some paperwork”. Several documents were produced. The conversation continued:
5.Q.    Do you have any photo ID?
A.    I don’t think so.
6.Q.    What about in your bum bag?
(no response)
7.Q.    You seem nervous. Why are you so nervous, mate?
A.    You guys make me nervous.
8.Q.    Why is that?
A.    Because last time I got maced.
9.Q.    You have no reason to be nervous of us.
The respondent was then said to have produced from the bum bag a card, which Sergeant Kotaras believed was a football membership card. The officer said in evidence that this was not acceptable proof of identity and not a satisfactory basis upon which a traffic infringement notice could be issued. The officer directed attention again to the bum bag:
10.Q.    What’s in the other pocket?
A.    Do I have to?
11.Q.    We have to establish your identify or you may be arrested.
At that point the respondent was described as “commencing to open the bum bag”, at which time Sergeant Kotaras observed “a large brick-shaped bundle of $50 notes”. The officer said his impression was that it was a substantial amount of money. He then telephoned his supervisor to obtain advice. During the conversation on the telephone, the officer said he asked two further questions of the respondent, being:
12.Q.    How much is there?
A.    30,000.
13Q.    Where did you get it from?
A.    I’d rather not say. I just have to take it where it has to go.
Sergeant Kotaras said he then issued a caution to the respondent and was told by him that he did not wish to answer any questions. The respondent was then arrested for unlawful possession of the money.
The respondent was taken to the City Watch House. His vehicle was also taken there. Police later located within the vehicle a large drum which contained remnants of cannabis.
The magistrate’s reasons
In ruling that the conduct leading to the discovery of the money was unlawful the magistrate made the following observations:
The police do not have the right to search defendants unless they do so within their lawful authority. Section 72 of the Summary Offences Act has been referred to as being relevant in this case and I do agree. [It appears that the magistrate meant to refer to s 68 of that Act.] The defendant was being asked questions with a view to determining his identity in connection with the initial apparent breach of the Road Rules. However the manner in which the question was asked and answered in my view amounted to a request that did not give the defendant a choice. That was not in fact lawful.
I hasten to add that Sergeant Kotaras impressed me as a genuinely decent and honest witness. In my view he did nothing intending to mislead the defendant. However the manner in which he chose to pose the questions and answers to the defendant did in my view suggest that there was a compulsion to produce the contents of the bag. It therefore does not come within the circumstance of an accidental finding.
I consider I have no option but to exclude the evidence of the money in the circumstances and therefore I find there is no case to answer.
It appears to me that in referring to a request which did not give the defendant a choice, the magistrate had in mind question 10, “What’s in the other pocket?”. However, in argument before me, Mr Anders for the respondent, contended that all questions after question 3, “Why not?” and its answer, “It was cancelled back in 2006”, were impermissible.
Before me, Mr Anders supported the magistrate’s analysis of the description of events. He argued that it was not to the point that the officer did not physically search the respondent or indeed instruct him to turn out his pockets. He argued that none of the statutory powers provided to police in s 74A Summary Offences Act 1953 (SOA) – power to require statement of name and other personal details – or s 74AB SOA – questions as to identity of drivers, etc – or s 96(1) Motor Vehicles Act 1959 – duty to produce licence – entitled Sergeant Kotaras to proceed in the manner he did. He argued that s 74A of the SOA only entitled a police officer to require a person to state that person’s personal details if that officer had reasonable cause to suspect commission of an offence, or that the person might be able to assist in the investigation of an offence. He further submitted that s 74AB SOA only authorised the asking of questions and did not authorise police to require the production of photographic identification. The questions authorised by s 74AB had, he argued, been asked and answered by the time the respondent answered question 3 saying “It was cancelled back in 2006”. Mr Anders argued that s 96(1) of the Motor Vehicles Act entitled the police officer to ask the respondent to produce his licence forthwith, and if not produced forthwith, to require the respondent to produce it within 48 hours at a convenient police station. Counsel submitted that at the point where the respondent told the officer that his licence had been cancelled back in 2006, the respondent should have been given the opportunity to produce the cancelled licence within 48 hours. The officer should not have gone on to question the respondent as to other forms of identification.
In my view, contrary to the magistrate’s finding and counsel’s submissions, there was no search, nor any illegality or impropriety in this sequence of events.
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of sections 74A, 74AB SOA and s 96(1) Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.
In the circumstances which presented themselves on this occasion, the respondent had a clear choice. He could produce some form of identification which satisfied Sergeant Kotaras of his identity, in which case the officer would have been content to issue a traffic infringement notice. Alternatively, he could decline to do so, with the consequence that he would have been arrested. After asking question 10, “What’s in the other pocket?” receiving the response “Do I have to”, the officer presented plainly to the respondent the choice he had. He said “We have to establish your identity or you may be arrested.” To say that to the respondent was not improper; it did not amount to forcing the respondent to turn out his pockets; nor could it be considered to be in any way inappropriate. It was merely a plain statement of the police officer’s intention and the respondent’s position at that time. Accordingly, there was no illegality or impropriety such as to give rise to any discretion to exclude the evidence.
I would add though, that had the circumstances been otherwise and an impropriety of a technical nature demonstrated, in my view it would not have been appropriate to exercise the public policy discretion to exclude the evidence. That is because the magistrate found that the officer was “a genuinely decent and honest witness” and had not intended to mislead the respondent. Moreover, had he simply desisted from further questioning and arrested the respondent, then inevitably the money would have been located upon the respondent being searched at the City Watch House. However, as I have said, nothing the officer did was such as to bring into play the public policy discretion.
The matter must go back to the Magistrates Court for a retrial.
The orders I make are as follows:
1.allow the appeal;
2.set aside the order of the magistrate dismissing the complaint and the associated costs order;
3.remit the matter to the Magistrates Court for hearing according to law;
4.the respondent is to pay the appellant’s costs fixed in the sum of $250.