R v AL-SAMAWY - [2019] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v AL-SAMAWY

[2019] SADC 42

Reasons for Ruling of Her Honour Judge Tracey

5 April 2019

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

Accused charged with trafficking in a controlled drug and unlawful possession - accused seen leaving premises where the occupant suspected of dealing illicit drugs - police searched the accused's vehicle and his residence - application by accused to exclude the evidence found during the searches - whether police held reasonable suspicion.
Held: the search was unlawful. The evidence found during the search and a subsequent search thereafter is not admitted in exercise of the public policy discretion.
Controlled Substances Act 1984 s 52; Summary Offences Act 1953 s 68, referred to.
R v Nguyen [2015] SASCFC 7; Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321; R v Rockford [2015] SASCFC 51; The Queen v Gary Reginald Bainbridge [1999] NZCA 180, considered.

R v AL-SAMAWY
[2019] SADC 42

The accused is charged with trafficking in a controlled drug and unlawful possession.
The charges arise from a police search of the accused’s vehicle, S022 AVK (the vehicle) and his residence at Woodcroft (the accused’s residence) on 1 November 2016. On searching the vehicle, police found drugs, mobile phones, tick lists and notes, a knuckle duster and cash in the sum of $18,600. At the accused’s residence police located various items indicative of drug use, and arguably trafficking.
The accused has made an application pursuant to Rule 49 of the District Court Criminal Rules 2014 for the exclusion of all the evidence obtained from their searches on the basis that police did not hold the requisite suspicion.

Background

At about 8.35 pm on 1 November 2016, Constable Gabriel Popa (Popa), Constable Torey Williams (Williams) and Detective Sergeant Andrew Winterfield (Winterfield) were on plain clothes patrol, driving an unmarked Holden Colorado vehicle (the police vehicle). Police were intending to observe premises at William Langman Circuit, Ridleyton, (‘the premises’) following the receipt of information relating to illicit drug activity at the premises. Winterfield parked the police vehicle approximately 30 metres away and police maintained observations on the premises.
Williams gave evidence on the voir dire and by consent the affidavits of Popa sworn on 30 January 2017 and 5 March 2019 and the affidavit of Winterfield sworn on 12 March 2019 were tendered.
Popa said he observed a person who looked like a man coming from the premises and walk to a vehicle parked across the street. He saw a set of tail lights ahead and believed that the person he had seen leaving the premises had entered that vehicle. Police drove to follow that vehicle but the occupant proved to be of no interest. Popa recalled Williams say that a male in vehicle S022 AVK that was parked opposite the premises, ducked his head as they had approached, but that he himself had not made this observation.
In his affidavit, Winterfield said that based on the information he had received, he believed grounds existed to search the premises using the authority of his general search warrant. Neither the accused, or the vehicle, were named or mentioned in the information that was provided to police concerning the illegal activities said to be taking place at the premises.
Winterfield said he observed the accused leave the premises and get into the driver’s seat of the vehicle, which was parked directly in front of the premises facing East. At the time, the front porch light at the premises was on, giving a clear view of the accused leaving. A short time later he drove the police vehicle past the vehicle, and observed the accused still seated in the driver’s seat, to ‘duck down’. He said the accused had been seated inside the driver’s seat of the vehicle for a number of minutes before he drove past. Winterfield said that a short time later he returned to William Langman Circuit and parked behind the vehicle. In between driving past the vehicle and then parking behind it, he did not observe the accused return to a normal seating position. He spoke with Williams in relation to Williams speaking to the occupant of the vehicle, while he and Popa attended at the premises. Winterfield said he did not direct Williams to search the vehicle as part of this conversation.
In evidence, Williams said that he understood police were attending at the premises in relation to using a general search warrant to search in relation to drug related matters.[1] It was suspected that offences against the Controlled Substances Act 1984 (CSA) were being committed at the address. He observed a male leaving the front of the premises, walk across the road and get into a vehicle.[2] After five minutes had passed, police drove past the vehicle trying to get a look at who the person was in the front driver’s seat. They got the registration of the vehicle and waited at the end of the street for that vehicle to come out.[3] When police returned, as they drove past the vehicle, the male was still sitting in the front driver’s seat and was observed to lower himself into the footwell.[4] Police did a U‑turn and pulled up directly behind the vehicle.
[1]    T 5.7.
[2]    T 7.2.
[3]    T 7.27.
[4]    T 8.12.
Williams told Winterfield he would go and talk to the driver if Winterfield and Popa wanted to go to the premises. Williams attended the driver’s side of the vehicle to speak to the driver.
When asked what his intention in relation to the vehicle was, Williams said ‘to identify the driver and see if there’s any connection with the house in relation to the Controlled Substances Act’.[5]
[5] T 9.3.
As Williams walked up to the vehicle, the engine was on and the driver was trying to crouch down into the footwell. Williams said he found this ‘strange’ and that it appeared to him the accused was trying to avoid having someone see him.[6] Williams walked up to the driver’s side door and noted that the engine was on. He knocked on the window and identified himself as a police officer. The accused nodded his head and then put his window down.
[6] T 9.22.
The accused produced a proof of age card. Williams had the following conversation with the accused:[7]
Williams:            Why have you been sitting out the front for about 10 minutes?
Accused:            I knocked on the door but my friend wasn’t home.
Williams:            I saw you walk from the front door after leaving the house.
Accused:            No comment.
[7]    T 9.34.
Williams said the accused appeared to be very nervous, kept looking down into the vehicle and would not make eye contact with him.[8] The accused was looking at the centre console. Williams then informed the driver that he was going to search the vehicle under the CSA.
[8] T 10.12.
When asked under what power he had authority to search the vehicle, Williams said that he relied on s 52 of the CSA which empowers police to search a vehicle for the purposes of offences against the CSA.[9] He said he was unsure of any particular requirement involved in the exercise of that power as it had been a while since he had to use South Australian legislation.[10]
[9] T 10.30.
[10] Williams is currently serving as a police officer in Queensland.
When asked what enabled him to exercise the power to search the vehicle, Williams said ‘As we were going to search [the premises] under the Controlled Substances Act, I believed that this vehicle was in relation to that address for offences against the Controlled Substances Act’.[11]
[11] T 11.9.
In cross-examination, Williams agreed that neither his notes, nor his statement compiled on 13 November 2016, referred to the accused’s nervous demeanour.[12] He agreed that he could not comment on the whereabouts of the man seated in the vehicle for the 10 minutes that police were away from William Langman Circuit and agreed he had no information linking the registration of the vehicle to the premises under surveillance. He was unaware of how many potential occupants were inside the house.[13]
[12] T 12.22.
[13] T 13.19.
The prosecution submitted that the search of the vehicle was lawful under both s 68(1)(a) of the Summary Offences Act (SOA) and s 52(9) of the CSA and that Williams held the requisite ‘reasonable’ suspicion.
Section 52(9) of the CSA provides:
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.
Section 68 of the SOA provides:
A police officer may do any or all of the following things, namely, stop, search and detain—
(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is an object, possession of which constitutes an offence; or
(iii)there is evidence of the commission of an indictable offence;
(b)a person who is reasonably suspected of having, on or about his or her person—
(i)stolen goods; or
(ii)an object, possession of which constitutes an offence; or
(iii)evidence of the commission of an indictable offence.
The question of what is a ‘reasonable’ suspicion has been the subject of much judicial comment. In Bain v Police,[14] White J said:
It is sufficient to note that some factual basis for the suspicion must be shown; that a suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, and accordingly that the facts which can give rise to a reasonable suspicion may be insufficient to give rise to an actual belief. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. The suspicion in a given case may be based upon a police officer’s observations together with what the police officer has learnt from other sources. The requirement of reasonableness may require police officers to assess the reliability of any information provided to them.
[14] (2011) 112 SASR 10 at 28-29.
In R v Nguyen[15] the Court of Criminal Appeal (SA) stated:
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.
Importantly, s.52(6) and s.52(9) of the CSA require more than 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 almost 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. 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. [References omitted]
[15] (2013) 117 SASR 432 at 21-22.
In evidence Williams was asked what power gave him authority to search the accused’s vehicle. His evidence was as follows:
Q.    What power do you say gave you authority to search the vehicle at that particular    time.
A. Section 52 of the Controlled Substances Act.
Q.    What's your understanding of that section.
A. That a police officer or an authorised person may search a vehicle - in this instance, a vehicle - for the purposes of offences against the Controlled Substances Act such as possessing controlled drug, along with taking photos of anything, taking video of anything and seizing and looking at any documents.
Q.    To exercise that power, is there a particular requirement. Do you understand if there       is a particular requirement involved in exercising that power.
A.    I apologise, it's been a while since I've had to use SA legislation, so I'm unsure of     that requirement at this stage.
Q. What were the reasons why you say you were able to exercise that power under s 52(6) of the Controlled Substances Act and search the vehicle.
A.    As we were going to search No.13 under the Controlled Substances Act, I believed       that this vehicle was in relation to that address for offences against the Controlled      Substances Act.
Q.    Is there any other reason.
A.    Not that I can recall at this time.
The accused submitted that the evidence of Williams is almost identical in effect to the fatally flawed evidence of the searching officer in R v Nguyen[16] in that Williams did not give evidence that he actually held a suspicion there may be drugs in the accused’s vehicle.
[16] [2015] SASCFC 7 at [26].
The prosecution submitted that the facts here be distinguished from both Nguyen cases cited above in that those two cases involved a suspicion which amounted to general information connecting a house with a vehicle, and a vehicle leaving a house associated with drugs when drugs had been found in that vehicle previously. In the matter here, the suspicion is not based upon general information connecting the residence of interest to the vehicle ultimately searched. The police focus was on the actions and behaviour of the accused, together with the knowledge they had of the residence.
The prosecution submitted that the suspicion on the part of Williams which led to the search was:

(a)the accused being parked in a vehicle out the front of a house which police were going to search as they had information that illicit drug activity was taking place there;
(b)the accused sitting in his vehicle for about 10 minutes;
(c)the accused ducking down in the footwell of the vehicle when police returned to the street and the police vehicle headlights shine on the accused;
(d)the accused remained crouched down in the footwell until Williams knocked on the vehicle’s driver’s side front window; and
(e)the accused appeared nervous and kept looking down at his feet and at the centre console.

It is the accumulation of these factors that the prosecution submits makes the suspicion formed by police reasonable in the circumstances, given the information available to them and the accused’s behaviour.
The accused argues that there are important matters to be taken into account when assessing the impact of the evidence upon an assessment of whether there is a reasonable suspicion:

(a)there is no background evidence relating to the occupant of the vehicle or the vehicle itself. At best for the prosecution, there is suspicion that might attach to the premises and little else;
(b)the only evidentiary nexus between the vehicle parked on the street and the premises, is that a male was seen to leave the front area of the premises and enter the vehicle. The evidence does not even rise to a position where police can say that the person who left the house was the applicant, given that the premises and vehicle were not under observation for a period of five minutes;
(c)there is no evidentiary nexus between the accused and the address beyond mere conjecture;
(d)there is no background evidence linking the accused’s vehicle to the house (intelligence etc); and
(e)until such time as the accused produced his identification, the police had no knowledge of who was in the vehicle.

Further, the accused submits, an objective assessment of the conclusions drawn by police as to their stated observations from within the vehicle must lead to a conclusion that those observations are speculative or of little weight having regard to:

(a)the fact the police vehicle was unmarked with no distinguishing features meant that it was impossible for an observer to discern that it was a police vehicle;
(b)that there is no evidence to suggest that the person said to be ducking was the same person that left the front area of the premises;
(c)in any event, the high water mark of the prosecution case on this topic is that Williams thought it was ‘strange’;
(d)the observations of apparent nervousness, were devoid of detail and probative of little;
(e)the fact that there was no note of nervousness and nothing in the declaration made on in November 2016, raise the distinct possibility of recent invention;
(f)looking at this evidence from the most favourable view to the prosecution, in combination these factors could never amount to an objectively reasonable suspicion which is required at law.

Leaving aside the issue of whether or not Williams observed the accused looking nervously and in particular looking at the centre console, both Williams and Winterfield observed the accused ducking down. It is of interest in my view that at the time of the conversation between Winterfield and Williams about Williams speaking with the accused, the only information relevant to the accused is that he has potentially left premises of interest and ducked down in his vehicle when the police vehicle drove past. At that time, Winterfield, as the most senior officer present, did not hold a reasonable suspicion as to the person sitting in the accused’s vehicle. The impression Williams had of the accused looking nervous therefore assumes significance.
That Williams did not refer to his observation in either the notes made contemporaneously or his statement is troubling. Added to that concern is the fact that the vehicle in which the accused was found to be seated, was not continually under police observation. Police had assumed that the person leaving the residence had gotten into another vehicle which they followed. I accept that the questions asked by Williams would tend to suggest that the accused had left the residence that was of police interest, however there is no certainty in that. His questions are not specifically directed towards the premises.
Certainly, Williams did not demonstrate any fundamental understanding of the powers upon which he was acting or the requirement that any suspicion he held must be a reasonable one. This may be explained by his absence from the jurisdiction for a period.

Clearly and quite reasonably, the police thought there was something strange happening. This does not however pass the test.
While the prosecution says that both Winterfield and Williams attest to the registration of the vehicle immediately upon entering the street and that the vehicle registration was seen almost contemporaneously with the accused walking out from the address, thereby resolving the issue of whether police are mistaken as to who was in the vehicle, on my assessment of the material that is before me, it is not possible to arrive at that finding. There is no consistency between any of the police witnesses regarding where it was that the person who exited the residence went. Popa said in his statement:
We parked the vehicle approximately 30 metres away from the address, turned off all lights within the vehicle and maintained observations on the address. After about 5 minutes I observed a person that looked like a male coming out of the target house and walk to a vehicle that was parked across the street from the house at number 13. I saw a set of tail lights moving ahead and believed that it was the vehicle that the person exiting the house got into. We followed the vehicle and stopped it however noticed that the driver was an elderly Asian female. We returned to William Langham Circuit and as we passed number 13, I heard Williams say that he saw a male in a silver Ford sedan South Australian registration number S022AVK that was parked opposite the house duck his head as we approached the vehicle.
The accused submitted that the state of mind of Williams is at best, one of curiosity and speculation. The process of reasoning appears to be the vehicle is near a drug house, it must have drugs in it. Further, Williams formed his suspicion on flimsy material and/or by a process of reasoning which relies on tenuous, albeit rational connections. On this basis, even if there is the existence of suspicion, it could never be considered as reasonable considering the authorities.
Neither Winterfield nor Williams had made the decision to search the vehicle at the time Williams left the police vehicle. This would tend to support the prosecution’s reliance on the accused’s demeanour when spoken to by Williams, as one of the factors going to make up a reasonable suspicion on Williams’ part. On the other hand, what in the circumstances must have been an important feature of Williams’ decision to search the vehicle, was missing from his notes and first statement. While I accept Williams may now not be as familiar with the legislative provisions that provide police with the power to search, he was simply unable to explain the basis upon which he held a reasonable suspicion, other than there was potentially some connection between the premises and the vehicle.
I find that the search of the vehicle was unlawful.

Discretion

Having found that police did not have a reasonable suspicion to search the vehicle, I must proceed to determine whether to exclude the evidence pursuant to the Bunning v Cross[17] public policy discretion.
[17] (1978) 141 CLR 54.
In R v Ireland,[18] Barwick CJ stated:
…Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[18] (1970) 126 CLR 321, 335.
In Bunning v Cross, Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of an unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
The prosecution submitted that factors such as the probative value of the evidence, the seriousness of the charges, that the unlawfulness was not deliberate and not wilful or malicious, weigh against excluding evidence obtained from an illegal search under public policy discretion. Further, there can be no suggestion that the conduct of police has affected the cogency of the subject evidence.
The accused sought to rely on examples of other occasions where the courts have found that illegal searches were conducted by members of the Western Adelaide CIB. Such a submission would seem contrary to the position Winterfield took before Williams spoke to the accused, and in the absence of evidence demonstrating a general or pervasive disregard of the limitations of police powers, I cannot and do not accept that submission.
Clearly the offences alleged against the accused are very serious and what police found during the search of the accused’s vehicle was of significant probative value. Without that evidence, prosecution of the accused on these charges will fail. In arriving at a decision, I am however mindful of features that must assume some importance in the exercise of the discretion as described in R v Rockford,[19] where Stanley J, (Kourakis CJ and Sulan J agreeing) said:
…“high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[19] [2015] SASCFC 51, at [39].
In this matter, I decline to exercise the discretion to admit the evidence that resulted from the unlawful search of the vehicle. Accordingly, the searches that police conducted thereafter in relation to this accused, are also irrevocably tainted.[20]
[20] See The Queen v Gary Reginald Bainbridge [1999] NZCA 180 at 23.