Police v Moukachar

Case [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

  1. VANSTONE J: The respondent was tried in the Magistrates Court for unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953.

  2. On 22 May 2009 he was seen by police to be driving along Pulteney Street, Adelaide, with his arm extending outside his car window.

  3. 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.

  4. 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.

  5. Police now appeal against the dismissal of the complaint, arguing that the evidence of the cash should not have been excluded.

  6. It is said that the police conduct did not involve illegality or impropriety and, accordingly, the public policy…

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AGLC
Police v Moukachar [2010] SASC 199
Case
[2010] SASC 199
Decision Date

CaseChat Overview and Summary

The case of Police v Moukachar concerns an appeal against the dismissal of a complaint by a magistrate. The appellant was charged with unlawful possession of a sum of money. The magistrate dismissed the complaint after excluding the evidence of the money and finding no case to answer. The evidence was excluded because it was revealed during an illegal search. The issue before the court was whether the conduct of the police involved illegality or impropriety so as to enliven the public policy discretion.

The court found that the police conduct did not involve illegality or impropriety and, accordingly, the public policy discretion did not arise. The court examined the conversation between the police officer, Sergeant Kotaras, and the respondent. The evidence of the police officer as to the conversation was unchallenged. The court concluded that the manner in which the questions were asked and answered suggested compulsion, which was not lawful. However, the court found that the police officer did not intend to mislead the respondent.

In the alternative, the court considered whether, 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. The court found that, even if there were impropriety, the discretion to exclude the evidence would not have been exercised.

The court dismissed the appeal and affirmed the decision of the magistrate to exclude the evidence and find no case to answer. The final orders were that the appeal be dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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