R v Armistead

[2019] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ARMISTEAD

[2019] SASCFC 85

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Hinton)

16 July 2019

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against conviction and application for permission to appeal against sentence.

On 17 November 2016 three police officers attended premises at Highbury to speak to the occupant. When the officers arrived the appellant was sitting in the driver's seat of his car which was reversed into the driveway of the premises and wholly on private property. Whilst one of the officers went to the front door of the premises to speak to the occupant, a second approached the appellant and asked him for his driver’s licence. The appellant did not have his licence but provided his licence number. The second officer then withdrew to the police car whilst the third stood nearby keeping the appellant under watch. Observations made by the third officer led him to suspect that the appellant had or was committing an offence and that a search of the appellant’s car would elicit evidence of an offence.

The second officer returned from the police car whereupon the third officer advised the appellant that he intended to search the appellant and his car under the Controlled Substances Act 1984 (SA). The search uncovered a package containing a crystalline substance weighing 13.9 gm of which 11.1 gm was methylamphetamine. The appellant was charged with and convicted of trafficking after a trial before a judge sitting alone. He was sentenced to imprisonment for three years and 10 months with a non-parole period of two years and six months.

The appellant appealed against his conviction and sought permission to appeal against his sentence. With respect to his conviction he contended that a miscarriage of justice had occurred. The police officers’ search of the appellant’s vehicle, he submitted, was unlawful because they were trespassers and had unlawfully detained him. That unlawfulness enlivened the public policy discretion to exclude the evidence obtained in consequence of the police officers’ search. That discretion ought to have been exercised in favour of the appellant. The appellant also contended that his conviction was unreasonable and could not be supported by the evidence due to inconsistencies in the prosecution case. With respect to his sentence the appellant submitted that it was manifestly excessive in two respects; first, the head sentence and non-parole period were too high, and, secondly, the sentence of imprisonment should have been ordered to be served on home detention.

Held, per Hinton J (Kelly and Stanley JJ agreeing), dismissing both the appeal against conviction and the application for permission to appeal against sentence:

1.      The Judge was right to admit the evidence of the search of the appellant’s vehicle. The police officers were not trespassers and did not restrain the appellant's liberty unlawfully.

2.      Upon an independent assessment of the evidence it was open to the trial Judge to convict. None of the imperfections in the prosecution case rose so high as to cause the Court to think that the Judge must have had a reasonable doubt.

3.      The appellant’s head sentence and non-parole period are not manifestly excessive. An order that the sentence be served on home detention would not adequately achieve the deterrent purposes of the sentence.

Controlled Substances Act 1984 (SA) s 52; Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Procedure Act 1986 (NSW) s 133(1); Criminal Procedure Act 1921 (SA) ss 131, 132, 158(1); Juries Act 1927 (SA) s 7(4); Motor Vehicles Act 1959 (SA) 96; Road Traffic Act 1961 (SA) s 40V; Sentencing Act 2017 (SA) s 71(2)(a); Summary Offences Act 1953 (SA) s 74AB, referred to.
Halliday v Nevill (1984) 155 CLR 1; Police v Moukachar (2010) 107 SASR 450, discussed.
BCM v The Queen (2013) 88 ALJR 101; Bunning v Cross (1978) 141 CLR 54; Coco v The Queen (1994) 179 CLR 427; Collins v Wilcock [1984] 1 WLR 1172; Filippou v The Queen (2015) 256 CLR 47; Haddara v The Queen (2016) 260 A Crim R 306; Police v Pocius [2018] SASC 38; Ridgeway v The Queen (1995) 184 CLR 19; R v Armistead [2018] SADC 59; R v Conley (1982) 30 SASR 226; R v Filipponi (2016) 126 SASR 464; R v Lavery (1978) 19 SASR 515; R v Mangelsdorf (1995) 66 SASR 60; R v Young (2016) 126 SASR 41; SKA v The Queen (2011) 243 CLR 400, considered.

R v ARMISTEAD
[2019] SASCFC 85

Court of Criminal Appeal:   Kelly, Stanley and Hinton JJ

1. KELLY J:             I agree with the reasons of Hinton J.

2. STANLEY J:        I would dismiss the appeal against conviction. I would dismiss the application for permission to appeal against sentence. I agree with the reasons of Hinton J.

   HINTON J:

   Introduction

3. On 17 November 2016 the appellant, Edward Dale Armistead, was sitting in his car in the driveway of an acquaintance’s house at Highbury when three police officers arrived. Whilst one of the officers made his way to the front door of the premises to speak to the occupant, a second stopped and asked Mr Armistead for his driver’s licence. Mr Armistead did not have his licence but was able to provide the officer with his licence number. The second officer then returned to the police car to check Mr Armistead’s identity, whilst the third officer stood nearby keeping Mr Armistead under observation. That third officer formed the suspicion that Mr Armistead had committed or was committing a drug offence. The officers then proceeded to search Mr Armistead and his vehicle. The search uncovered a package containing 13.9 gm of ice containing 11.1 gm of pure methylamphetamine. As a consequence Mr Armistead was charged with trafficking in a controlled drug. He pleaded not guilty and upon his election was tried by a judge sitting alone. On 7 June 2018 he was found guilty of the charge. He was sentenced to imprisonment for three years and 10 months with a non-parole period of two years and six months.

4. Mr Armistead now appeals against his conviction and seeks permission to appeal against his sentence. With respect to his conviction, he contends that a miscarriage of justice has occurred in that the search of his vehicle was unlawful and that the evidence obtained as a result should not have been admitted in evidence against him. He also contends that his conviction is unreasonable and cannot be supported by the evidence adduced. In relation to his sentence, Mr Armistead contends that it is manifestly excessive and, in any event, should have been ordered to be served by way of home detention.

5. I would dismiss the appeal against conviction and dismiss the application for permission to appeal against sentence. My reasons follow.

   The appeal against conviction

   Was the trial Judge correct in admitting the evidence of the search of Mr Armistead’s car?

   A.Mr Armistead and his vehicle are searched — the evidence on the voir dire     

6. On 17 November 2016 at about 9.20 pm, police officers Halikias, Forbes and Davey, all members of SAPOL’s uniform tactical team based at Holden Hill Police Station, travelled together in a police vehicle to premises at 9 Paradise Grove, Highbury (the premises). It was there that the officers came across Mr Armistead as he was sitting in his car in the driveway to the premises. Each of the three officers gave evidence on the voir dire as to what happened upon their attendance at the premises.

7. In his evidence Constable Halikias said that as members of the uniform tactical team one aspect of their duties involved monitoring people who would come and go from premises of interest. The premises was a place of interest. Some two weeks or so earlier, on 3 November 2016, Constable Halikias had executed a drug warrant at the premises. The ensuing search located approximately 20 gm of methylamphetamine for which the occupant of the premises was charged with trafficking. The search also located a significant amount of stolen property.

8. Prior to the events on 3 November 2016, police had the premises under observation and had witnessed cars coming and going, some of which were stopped and searched.

9. It was in connection with the warrant executed on 3 November 2016 that the officers went to the premises on 17 November 2016 in that their intention was to interview the occupant regarding the stolen property previously located.

10. Constable Halikias said that when the officers first arrived at the premises the police car in which they had travelled was parked on the northern side of Paradise Grove, being the opposite side to that on which the premises was located, and in a position opposite the driveway to the premises. As they arrived he saw three cars in the driveway. He said the third car, which was closest to the street, was not known to the officers. Constable Halikias had not seen it at the premises before. Someone was sitting in the driver’s seat. Ambient light and light from fairy lights in the front yard allowed him to see into the car. There was only one person inside.

11. The officers discussed the third car and the person in it. Constable Halikias could not recall the content of the conversation, but ventured that it would have been a matter of making each other aware of the presence of the car and its occupant.

12. Once he got out of the police car Constable Halikias made his way toward the third car in the driveway. To get to the front door of the premises he had to pass the driver’s side of the car. As he approached he noticed the driver’s side window was down and the person in the driver’s seat appeared to be talking on a mobile phone. At this stage Constable Forbes and Senior Constable Davey were somewhere behind him. Constable Halikias spoke to the person sitting in the driver’s seat who, as matters turned out, was Mr Armistead. Constable Halikias asked Mr Armistead what he was doing at the premises. Mr Armistead said that he was there to pick up Beau, who the Constable knew was a person who frequented the premises. Constable Halikias then continued on his way to the front door of the premises where he was met by the occupant. He surmised that with the benefit of the CCTV cameras that were present at the premises, the occupant had seen the police coming.

13. Constable Halikias spoke to the occupant informing her of the reason for the police visit. A short time later, perhaps 20 or 30 seconds later, he heard Senior Constable Davey say, “[w]hat are you trying to hide?”. He turned and saw Mr Armistead standing outside his vehicle. Constable Forbes was in the process of arresting him. Constable Halikias made his way back to his fellow officers. They had only been at the premises for approximately two minutes.

14. In cross-examination Constable Halikias said that the car in which Mr Armistead was sitting was parked within the curtilage of the driveway to the premises with the occupant’s two cars behind it. Mr Armistead’s car was on private property. Constable Halikias did not ask Mr Armistead his name. Constable Halikias agreed that Mr Armistead could have said, “I’m waiting for Beau”. He did not believe that the interior light of the car was on, but could not be sure. As at the time he walked past Mr Armistead, Constable Halikias said he held no suspicion about Mr Armistead’s presence at the premises “[a]part from being parked within the premises about which there had been a lot of trouble previously”.

15. Constable Halikias denied that the police car in which he and the other officers travelled to the premises was parked on the southern side of Paradise Grove in a position blocking the driveway. He repeated that he informed Senior Constable Davey that the purpose of their visit to the premises was to speak to the occupant about stolen goods. That conversation would have taken place in the police car in the presence of Constable Forbes.

16. In his evidence on the voir dire Constable Forbes confirmed that as members of the uniform tactical team, one of their functions was to patrol high volume crime areas which he explained included monitoring addresses of interest known to be dealing drugs. In that latter connection he explained:

    AGenerally we sort of stand off addresses and look for what cars and people are coming and going from the address and, if we did come across a car leaving an address, we generally would stop that car and … speak to the occupant - have a word to the occupants.

    QWas the address 9 Paradise Grove, Highbury of interest … in November 2016.

    AYes, it was a well-known address to most police, I imagine, from Holden Hill Police Station.

17. He explained that the premises had been mentioned in past intelligence briefings and that he had been to the premises between two and four weeks previously when he took part in a search that located a trafficable amount of methylamphetamine. He said that the address had become an address of interest between three and six months before that attendance. The Constable also gave evidence of police having located some stolen cars up the road from the premises and of a vague memory of someone staying at the premises who quite often had outstanding warrants, in addition to police stopping people who had come from the premises who were wanted for breaching bail. He said that, as at 17 November 2016, if on an afternoon shift, he would drive past the premises two or three times a week checking vehicles in or near the address and people walking around the area.

18. Constable Forbes said that on 17 November 2016, together with Senior Constable Davey and Constable Halikias, he attended at the premises to locate someone police believed was at the address and in relation to whom a first instance warrant had been issued. The officers were in uniform. He thought he had driven the police car, but was unsure. He could recall no conversation about the reason for the attendance at the premises, but repeated that he thought they were looking for someone for whom a warrant had been issued. There would have been a discussion, he said, but he could not recall the content.

19. When they arrived at the premises the police car was parked directly opposite the driveway. He noticed:

    … a vehicle parked in the driveway near the roadway with the front of the car facing towards the road and there was a male sitting in the driver’s seat and the interior light was on in the car.

20. It was a silver-to-grey coloured sedan and had been backed in. Constable Forbes said:

    I was immediately suspicious … it was dark, it was 9.25 at night, the fact the car was pointing out into the roadway and there was a male sitting there with a light on, I was immediately suspicious [of] what the male was up to.

21. Words would have been exchanged between the police officers about the presence of the vehicle and its occupant, but Constable Forbes could not remember what was said. He got out of the police car first, he believed, and made his way over to the man in the car intending to speak to him. As he approached he was mindful to take care in case the car drove off. The interior light to the car was on and it was easy to see inside. He asked the man in the car, Mr Armistead, for his driver’s licence. Mr Armistead responded explaining that he had lost his wallet with his licence in it but had memorised his driver’s licence number which he provided. At this point in time Constable Forbes did not consider that he was exercising any police power. He was merely engaged in trying to ascertain the identity of the driver. He did not know Mr Armistead.

22. Armed with the driver’s licence number he turned to make his way back to the police car. Senior Constable Davey had been behind him. He believed he would have said something to the Senior Constable to let him know that Mr Armistead did not have his licence but that he had a licence number which he intended to check. He could not recall if Senior Constable Davey said anything.

23. When Constable Forbes returned to the police car Senior Constable Davey said to him that something was going on, that the driver was trying to hide something and that he wanted to search the car. At this point in time the two officers were in the vicinity of the driver’s side door. Senior Constable Davey told Mr Armistead to get out of the car. Mr Armistead did so. Constable Forbes informed Mr Armistead that he was going to search him under s 52 of the Controlled Substances Act 1984 (SA). Constable Forbes proceeded to search Mr Armistead finding nothing on his person.

24. Meanwhile Senior Constable Davey searched the car. After a short time, the Senior Constable held up a small plastic resealable bag containing “what we or he believed to be methamphetamine” and told Constable Forbes to place Mr Armistead under arrest. Constable Forbes did so. Mr Armistead denied knowing what was in the bag and claimed that it did not belong to him.

25. According to Constable Forbes, about three minutes had passed since the police first arrived.

26. In cross-examination Constable Forbes repeated what he had said regarding the practices of the uniform tactical team with respect to people and places of interest, including stopping cars as they drove away from places of interest after visiting. He was asked about the powers used to stop cars. Powers under the Road Traffic Act 1961 (SA) were used on occasion. At other times there were active warrants out for the registered owner. His understanding of the powers used under the Road Traffic Act 1961 (SA) was that they were not conditioned on any suspicion of offending first existing. He added, however, that a suspicion attached to 99.9 per cent of vehicles leaving the premises which was, he said, a “very busy address”.

27. Constable Forbes agreed with the proposition that police had no power to stop a person who was on private property, who was not committing an offence and in relation to whom there was no outstanding warrant. He said:

    QYou can’t stop someone who is not committing an offence and who hasn’t got a warrant and a bail breach or anything like that, you can’t stop them unless they’re on a road to ask them who they are.

    A     On a road-related area you can I believe.

    Q     Private property do you say - can you go onto private property.

    A     No, you cannot.

    QThat’s what you did in this case, wasn’t it; you went onto private property to find out who this man was.

    A     And if he was there for a lawful purpose, yes, that’s correct.

28. Importantly, in cross-examination Constable Forbes did not say, consistent with his evidence-in-chief, that in asking Mr Armistead for his licence he exercised a statutory power.

29. Cross-examination turned to where the police vehicle was parked. Constable Forbes thought that he was the driver but he could not be sure. He said he was pretty certain he parked on the northern side of the street, that is the correct side of the road and the opposite side of the road from the premises.

30. Constable Forbes repeated that upon his arrival at the premises he was immediately suspicious of the vehicle in the driveway and its occupant. There were two things that stood out to him. First, the car had reversed into the driveway, and, secondly, there was a male sitting inside it with the interior light on. He said:

    It [the car] wasn’t close to the roadway. There was space between the front and the house, it’s quite a decent length driveway. The car was facing on to the road, like it was leaving, and the interior light was on. It was 9.30 at night. I’d searched that particular house between two and four weeks - I would have to check my notes - between two and four weeks earlier and we had located a trafficable amount of methamphetamine in the house. … my immediate … [suspicions were] … that.

1. Constable Forbes conceded that when he first arrived Mr Armistead was not doing anything, however, his location by itself was suspicious. He wanted to ascertain whether the person sitting in the vehicle was at the premises for a lawful purpose. That was his purpose in proceeding to speak to Mr Armistead. He had no prior knowledge of the vehicle. He did not know Mr Armistead. Nobody in the police vehicle purported to recognise Mr Armistead.

2. Constable Forbes repeated that when he turned to return to the police vehicle to check the licence number Mr Armistead provided, Senior Constable Davey was standing behind him. He conceded that his state of mind was that Mr Armistead was not going to be left without a police officer watching him nor be permitted to leave until the police knew who he was. He was asked:

   QDid you immediately approach the accused to ensure that the vehicle did not leave the premises until you had established who the driver was and to ascertain if he was there for a lawful purpose.

   AYes, that’s correct.

   …

   QAnd that was your state of mind, you weren’t going to let him leave, were you.

   ANot until we knew who he was and what he was doing.

3. And:

   QMr Forbes, can you tell me this: you haven’t heard of de facto arrest, have you heard of the term to turn someone over.

   AYes, your Honour, yeah.

   QTurning over.

   AIt’s been around for a long time, yes.

   QAnd tell his Honour what you understand by ‘turn him over’ to be. Don’t worry about the fact that it is a slang term, it has been used in judgments in this court.

   AYour Honour, I believe that to be checking him out making sure everything is legit, make sure they’re not up to no good, make sure they’re not, you know, up to no good basically.

   HIS HONOUR

   QBona fiding them.

   ABona fide, yes.

   MS POWELL

   QIs that what you were doing to Mr Armistead this night, turning him over.

   AI thought we had already established what I was doing. Your Honour, with Mr Armistead the accused, he - where he was parked at that time of night with his interior light on facing the road, I was suspicious, I had searched that house less than four weeks before and located a trafficable amount of meth or been a part of the team that had. If you want to say we turned him over to make sure he was all good, then that’s what it was.

4. Constable Forbes repeated he had no intention of leaving Mr Armistead unsupervised. The check of the licence number revealed a name consistent with that given by Mr Armistead but Constable Forbes still could not be certain as to Mr Armistead’s identity.

5. When he returned to the vehicle in the driveway, Constable Forbes did not think that he asked Mr Armistead to accompany him to the police car. He was pretty sure that it was Senior Constable Davey who asked Mr Armistead to get out of the vehicle. Whoever it was, Mr Armistead was not asked to get out of the vehicle until it was thought something suspicious was going on in the car. However, under further cross-examination he conceded that if he did ask Mr Armistead to come with him to the police car it might have been to elicit further information in order to establish his identity. That said, under questioning from the Judge he said that he did not think that he had asked Mr Armistead to accompany him to the police car. He believed that Mr Armistead was placed under arrest as he stood next to his car and was then taken over to the police car.

6. Constable Forbes repeated that his state of mind was such that he did not intend to let the driver leave until he knew who he was and what he was doing at the premises.

7. Senior Constable Davey was also called to give evidence on the voir dire. He described the functions of the Holden Hill uniform tactical team in terms similar to those of Constables Halikias and Forbes. One of those functions was to attend premises regularly that had been associated with drug taking or drug trafficking. Generally observations made of such premises would be of people or visitors coming and going within short periods of time, a matter of 30 seconds to one minute or a couple of minutes, and a lot of cars parked in and around the address. It was common for police in the course of driving past to run registration checks on cars parked at such premises.

8. He confirmed that the premises at 9 Paradise Grove was known to the police and, he considered, were probably one of the most active drug addresses in the patrol area. That information had come to him from intelligence briefings. Those briefings included information that the occupants of the premises had been arrested or charged with trafficking drugs. Further, people suspected of buying drugs from the premises had been stopped and searched and issued drug diversion notices.

9. Turning to the events of 17 November 2016 he confirmed that, along with Constables Halikias and Forbes, he attended at the premises arriving at around 9.25 pm. He said the purpose of their attendance was because Constable Halikias needed to speak to the occupant regarding another incident he had been involved in at the address. To his knowledge that other incident was a drug raid. He did not drive the police vehicle. As the officers approached the premises his attention was drawn to a vehicle that was parked in the driveway because the interior was illuminated by what appeared to be a person using a mobile phone. This car was the first in the driveway from the road. It was a silver Nissan sedan. It had been reversed into the driveway which added an element of suspicion from Senior Constable Davey’s point of view. The driver being seated in the vehicle suggested that it was only to be there for a short period.

10. Senior Constable Davey said that he had never seen the car at the premises before.

11. The police vehicle parked on the opposite side of the road to the driveway to the premises. Constables Forbes and Halikias got out first. Constable Halikias went in the direction of the front door whilst Constable Forbes went to the driver’s side of the Nissan sedan. Senior Constable Davey remained in the police vehicle long enough to relay to police communications their location. He then got out of the car and approached Constable Forbes’ location. His intention was to offer the Constable assistance if needed whilst he was speaking to the occupant of the car. As he approached he and Constable Forbes crossed paths as Constable Forbes had turned to make his way back to the police car. They crossed roughly around the front of the sedan. Immediately beforehand Senior Constable Davey had heard Constable Forbes ask the driver for his driver’s licence, heard that the driver did not have his licence but heard him provide a driver’s licence number.

12. Senior Constable Davey took up a position near the driver’s side door. He had his torch with him which allowed him to see inside the car. He confirmed that Mr Armistead was sitting in the driver’s seat. The window was down. Almost immediately he could see that Mr Armistead was nervous and was very fidgety. He was trembling and shaking, which the Senior Constable considered to be an indication of nervousness. As for his fidgeting, Mr Armistead was constantly reaching around for things in the car, mostly in the console or over on the passenger’s seat. He barely sat still. The Senior Constable described how Mr Armistead’s fidgeting tended to make him a little nervous. He did not know what was in the car. He began to watch Mr Armistead quite closely. He said:

    At one point in time he’s leaned further than he had been over into the passenger side of the vehicle. When he did that, it’s lifted part of his body off the driver’s seat and I recall something white, because the driver’s seat was dark-coloured, black, so something white caught my attention out of the corner of my eye. I looked down, I could see like a package or something there that obviously was underneath his person prior to him leaning over, that was sort of hidden or concealed under his body whilst he was sitting upright in the car.

13. He repeated that Mr Armistead’s movements made him nervous because he did not know who he was speaking to, because of the nature of the job, and because he did not know whether Mr Armistead was reaching for weapons or anything like that. He said, “[y]ou don’t know who or what you are dealing with”.

14. At this point in time he had given Mr Armistead no directions because he did not feel that he was in a position to do so. As far as he was aware Constable Forbes had not detained Mr Armistead for any particular reason and was purely conducting an identity check. The Senior Constable did not consider that at that point in time he had any reason to detain Mr Armistead.

15. Mr Armistead continued to fidget, to move about and to reach for things and then at one point Senior Constable Davey saw his left hand move down in between the centre console and his left leg. He described a very deliberate but slow movement of the left hand under the leg and toward the back of the seat. Whilst he was doing this, at one point, Mr Armistead “[s]ort of nodded towards the sky as if - I took it as if he wanted me to look up or take my eyes off him and look up. That behaviour of moving or sliding his hand very slowly but deliberately under his leg was continuing or happened again and he made that second motion towards the sky upwards, sort of looked at me, then as if he wanted me to look up, as if to take my eyes off him”. It was at this point that the Senior Constable thought that Mr Armistead was trying to conceal or hide something from him. Coupled with the other information he had regarding the premises he considered that it was likely to be drugs or drug related. He maintained observations on Mr Armistead until Constable Forbes returned. He waited for reasons of operational safety. Senior Constable Davey said:

    As he walked up - the window of the driver’s door was down, so, as he walked up, he said it was an issue or something about the ID and was sort of asking, suggesting for the driver, Mr Armistead, to come to the police car. At that point in time I have opened the door or Mr Armistead opened the door and I took hold of it myself and opened it. He went to step out. I said to him and to Constable Forbes I intended to detain him for a search of his person and vehicle under the Controlled Substances Act as I suspected or believed he was trying to hide something from me.

16. Mr Armistead got out of the car and was directed to Constable Forbes. Senior Constable Davey then looked straight into the driver’s seat where he could see an item very similar or the same as that which he had seen Mr Armistead sitting on previously. It was now lodged in the space between the chair back and chair seat. He picked it up. It was a tissue wrapped like a present but it was crunchy to touch. Senior Constable Davey opened the tissue and could see a substance that looked like a trafficable quantity of methylamphetamine. He turned to Constable Forbes and showed him what he found. Mr Armistead was then placed under arrest. Thereafter the interior of the car was searched and, in addition to finding some paperwork bearing Mr Armistead’s name, $475 in cash was located.

17. In cross-examination Senior Constable Davey agreed that the powers available to police to stop and make enquiries of a person when that person is travelling on a public road were different to those that could be invoked when a person was on private property.

18. He agreed that when the police first arrived the fact that the car was backed into the driveway and that the person sitting in it was using their mobile phone made him suspicious and aroused his curiosity. He disputed the proposition that the police vehicle was parked on the wrong side of the road across the driveway to the premises. It was not the intention of the officers to prevent the Nissan leaving until they had established who the driver was and if he was there for a lawful purpose. Senior Constable Davey said they made no attempt to keep the vehicle in the driveway. He disputed the contention that he would have stopped the car had it started up and tried to drive away. Whether or not they would have followed it, he could not answer. It was possible that they would have let it go. As far as he was concerned the vehicle was free to go whenever it liked.

19. He repeated that he and Constable Forbes crossed paths around the front of the Nissan. He could not recall for how long he was standing at the driver’s door, it was hard to put a time on it but it was five minutes give or take (but less than 10 minutes). He repeated that initially he did not do or say anything to detain Mr Armistead because he had nothing that he could detain him for. At that time had Mr Armistead wanted to go he could have. That said, it was hard to know if Constable Forbes had any reason to stop Mr Armistead. It was hard to say what would happen in the absence of anything happening.

20. Senior Constable Davey said he had his torch in a position shining on the ground but was not actively using it to search the vehicle. He agreed he had no right initially to be looking through the car. That said it was possible that when he was leaning over or moving around that the torch light did shine into the vehicle. He could not say that he did not shine the torch into the vehicle at all. He was adamant that at that point in time he had no intention to search the car.

21. He said it was Constable Forbes who asked Mr Armistead to get out of the car. The Senior Constable could not recall what he said as he helped Mr Armistead to open the door. However, he did inform Constable Forbes that he wanted to search Mr Armistead and the car under the Controlled Substances Act 1984 (SA) as he believed that Mr Armistead was trying to hide something from him. There was no doubt in his mind that Mr Armistead would have heard him announce his intentions. It was at that point that Constable Forbes took Mr Armistead to the front of the car and Senior Constable Davey directed his attention to the car. He then conducted his search.

22. The appellant also gave evidence on the voir dire. He agreed that on the night of 17 November 2016 Constable Forbes asked him for his licence. He agreed that he told the Constable that he had lost his wallet with his licence in it but that he gave the Constable his driver’s licence number which he had remembered because he was required to enter it onto job sheets and in a logbook at work.

23. Earlier that night he had agreed to assist his friend, Beau Sutton, to pick some of his things up from a friend’s house. Mr Sutton did not have a car. The Nissan was registered to Mr Armistead’s parents’ transport company but he was the sole user of it. He drove it to the premises. He had been to the premises once before but only briefly. On that occasion he was also with Mr Sutton. He said he reversed into the driveway of the premises because the house was built on a sharp bend and it was easier to exit if he was able to go out forward. He was in the habit of reversing into parking spaces in any event.

24. He agreed that when the police arrived he was in the driver’s seat of his Nissan. Mr Sutton had gone into the house. He thought that Mr Sutton would be gone for 10 to 15 minutes. He had no intention of going inside. He said when the police arrived they had parked in front of the driveway on the incorrect side of the road partially blocking the driveway. Initially, two police officers got out of the police car. One went past him as he sat in his car and the other came to his door and spoke to him. He asked him what he was doing there. He said he was waiting for a friend and named Mr Sutton. He agreed the driver’s side window was down. He agreed that he was using his phone. The interior light was not on. The officer he spoke to was Constable Forbes. He repeated that the Constable asked him for his driver’s licence, he said he had lost it but provided his licence number. He did not consider that at that point in time he was free to leave the premises. To do so would have meant negotiating the police car and in any event the police were there. He felt like he could not leave. He explained that that was because they exited their car and immediately came to talk to him. He considered that he had to answer their questions and stay where he was until they asked him to get out of the car or stopped talking and allowed him to go.

25. He agreed that when Constable Forbes left his presence armed with the licence number he had provided, Senior Constable Davey took up a position by his door.

26. Mr Armistead did not consider that he was agitated. He said it was a bit confronting in that all of a sudden the police came and were shining their torches, not in his eyes, but in his vehicle. He denied that he was wriggling around. He said he was just looking for some identification because he did not have any. He was hoping that he had something else that he could supply to the police. He was moving his arms around the interior of the car but was not attempting to hide anything nor did he put his hand within the creases of the driver’s seat or under his legs. He was not aware of any white tissue paper package that was on his seat, nor of any similar object or the same object on the passenger’s seat. When the police located the methylamphetamine he said that he did not know what it was and it was not his.

27. He agreed that when Constable Forbes came back to his car he was asked to get out. He obliged. He felt he had to follow their instructions. It was then that the police said they were going to search his car. He could not recall exactly who said that but just remembered it being said. He clarified that they said they were going to search him and the car. He agreed that Senior Constable Davey searched his vehicle. He also agreed that he was searched in a position toward the front of his car.

28. In cross-examination Mr Armistead agreed that he had met the occupant of the premises briefly on one prior occasion. He met her as a consequence of picking Mr Sutton up from the premises. He had never purchased drugs from the premises nor the occupant of the premises. He denied that he attended the premises for the purposes of buying methylamphetamine from the occupant.

29. He repeated that the Nissan was a company car and that he regularly used it. He had primary control of the vehicle. No-one else had used it that day. He said he had arrived at the premises not long before the police did. It was not his practice to carry methylamphetamine on him. He denied that he was carrying methylamphetamine that night. He said:

    I just remember them … coming - them pulling up right on my side of the road and the guy in the back seat, he came straight out of the car real quick, real quick. He was like - I remember him looking over the back door, the window, the window on the door, looking like this, real low (INDICATES) and I thought that’s real weird because I could see it and he was straight out the car and come towards me, he was very close to me so he approached very quickly, it all happened very quick and I just remember the car, when I seen do [sic] that there was close to me, but then when I was under arrest I got put in the car on the opposite side of the road.

30. In cross-examination he maintained that the police car was parked on his side of the road and was half blocking the driveway.

31. He agreed that Constable Halikias asked him briefly a question before continuing on to the front door. Constable Forbes was not particularly intimidating. It was Senior Constable Davey who adopted a “Storm-Trooper kind of approach”. That was intimidating. He repeated he could not leave without driving over the curb to avoid the police car. There was only one officer standing at his window at a time although the other was close up behind him. He agreed that he was moving around whilst Senior Constable Davey was at the car. He was looking for some identification. He agreed that he leant into the passenger’s side of the car. He said he was feeling slightly nervous at that time. The officer was asking questions and he was “just really weird, he was like saying I was trying to make him look up into the sky or something like that, and things like that - I was a bit, yeah, I was - I was a bit anxiety, [sic] yes”. He denied that he was fidgety but described his demeanour as being “a bit gobsmacked just shocked, yeah, shocked”. He did not know that there was methylamphetamine in the vehicle. He was not directed to answer any questions and the police were not intimidating but he felt like he had to answer. He said Senior Constable Davey was shining his torch around the car as he was asking Mr Armistead questions. He explained that when he said around the car he meant inside the vehicle. That made him feel anxious.

1. He denied moving his left arm down and underneath his left leg whilst Senior Constable Davey was talking to him. He said he did not remember putting his left hand under his leg and starting to move it back towards his bottom. He said he was looking for identification in the centre console or in a compartment under the stereo. He denied that he was attempting to hide methylamphetamine down the back of the car seat. He did not know where the drugs were located in the car until he read the police officers’ statements. He did not dispute that Senior Constable Davey found something but it was a mystery to him where it came from. He did not know that there were any drugs in the car.

   B.The Judge’s ruling     

2. Mr Armistead contended that before his car was searched, and before any purported suspicion was formed, he was under de facto arrest. Whilst Senior Constable Davey and Constable Forbes could detain him for the purposes of undertaking an identification check if he were driving on a public road, they could not do so when he was, as he was, on private property. It was not contended that Senior Constable Davey did not subsequently form a reasonable suspicion justifying a search of Mr Armistead and his vehicle under the Controlled Substances Act 1984 (SA). Rather, the submission was more refined. It targeted the lawfulness of the presence of the police on the driveway of the premises and their actions prior to the formation of a reasonable suspicion.

3. In written submissions Mr Armistead contended:

   … If the search of the car was illegal by reason of the accused’s wrongful detention, the evidence of what Davey found is inadmissible.

   Regardless of what Davey said about his “curiosity”, Forbes had already detained the accused. Further, it should be found that Davey took over that physical detention and proceeded to search by flashing the torchlight into the accused’s vehicle. In this respect there is direct comparison with R v Chapman, particularly at [4] to [16].

   …

   In the case at bar, not only was there no suspicion with respect to the appellant driver, there was no suspicion with respect to the vehicle and the only suspicion was with respect to the private property, with which neither the appellant nor his vehicle had a connection or association known to police. If Forbes’ evidence is accepted, which it is submitted it must be, in that there is no suggestion that he might be wrong, as in the case of Nguyen, observations said to give rise to Davey’s reasonable suspicion only arose after Forbes, followed immediately by Davey, were unlawfully on the driveway.

   This case requires your Honour to make the finding of what it was that police officers intended to do from the moment that Constable Forbes entered onto the private property and approached the accused’s driver’s side door. If, as Forbes says, he had no intention of allowing the accused to leave at that stage then your Honour should find that the accused was from that moment under de facto arrest. …

   Forbes readily admitted that the accused was being detained for the purpose of being “turned over”. Davey, on the other hand, said that at the time he entered the property he was only curious about the accused’s presence on the premises. Regardless of whether Davey’s “curiosity” authorised him to enter onto the premises, he was right in law that that state of mind at the time that he and Forbes entered onto the property did not authorise either of them to detain or search the accused or his vehicle. …

   [footnotes omitted]

4. The voir dire was held in advance of the commencement of the trial and by a different Judge to that who heard the trial.[1] The Judge ruled:

   … I find that the police were in the circumstances not acting illegally in approaching the defendant in the driveway and seeking to check his particulars. The house was a house known for drug activity and the defendant was reversed into the driveway at night on his own with the internal lights on. It was an incident of the request for particulars that the police keep an observation on the defendant while he was in the seat of the car while the check was being made. I am satisfied that the defendant behaved in such a way that Davey did suspect, and suspect reasonably, that he was concealing drugs. His suspicion was sufficient to empower him to search the car and to search the defendant. The search was lawful.

   [1]    Criminal Procedure Act 1921 (SA), ss 131 and 132.

5. The Judge added:

   If I am wrong about that I would exercise my discretion to admit the products of the search. The police had not gone to the address in pursuit of the defendant. They were not waiting around for anyone to come to that address whom they might then approach. Their purpose was to speak to an occupant of the house. The defendant’s being alone in the driver’s side of the car reversed into the driveway of such a premises was sufficient to warrant an inquiry by police about his purpose there, even if only one police officer claimed to have a suspicion or a need to make such an investigation. The other officers did not have such a frame of mind.

6. The application to exclude the evidence of the search of Mr Armistead and his vehicle was dismissed.

   C.     Submissions and consideration

7. In this Court the appellant submitted that unlawfulness enlivening the public policy discretion to exclude the product of Senior Constable Davey’s search occurred in two respects. First, the officers were trespassers. Secondly, Constable Forbes and Senior Constable Davey unlawfully detained the appellant from first contact, if not when they first parked the police car. As I understood the argument, any grounds supporting a reasonable suspicion enlivening a power to search Mr Armistead and his car that arose after Constable Forbes left Mr Armistead to return to the police car were of no consequence; the police officers had already acted unlawfully in each of the two respects identified. Unlawfulness in any one of the two respects, the argument continued, enlivened the public policy discretion which, in the prevailing circumstances, could only have been exercised to exclude the evidence obtained from the search of Mr Armistead’s car. Accordingly, the Judge who presided over the voir dire erred.

8. Constables Halikias and Forbes gave evidence that Mr Armistead’s car was on private property. On the hearing of the voir dire Senior Constable Davey was not asked if this was the case. On the evidence it was not open to the Judge who determined the question of the admissibility of the search to conclude that Mr Armistead’s car was not wholly in the driveway to the premises and on private property.

9. It is settled that:[2]

   Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law.

   [footnotes omitted]

   [2]    Coco v The Queen (1994) 179 CLR 427 at 435-436 (Mason CJ, Brennan, Gaudron and McHugh JJ); Halliday v Nevill (1984) 155 CLR 1 at 10; Plenty v Dillon (1991) 171 CLR 635 at 639; Kuru v New South Wales (2008) 236 CLR 1 at [43].

10. The respondent did not contend that the officers were authorised by any statutory power to enter the premises. Rather, the respondent contended that the officers entered the premises and acted on the premises in accordance with an implied licence.

11. In Halliday v Nevill two officers were on patrol in a police car when they saw the appellant as he was in the process of reversing a car out of a driveway.[3] One of the officers knew the appellant to be disqualified. The appellant apparently saw the approaching police car and decided to drive back into the driveway from which he had exited. The police stopped their vehicle across the mouth of the driveway and got out. They walked down the open driveway entering the property. They spoke to the appellant near the rear of the car that moments before he had been seen driving. The appellant had been drinking. He denied that he had driven on the roadway. He was arrested. As the officers and the appellant walked back down the driveway toward the parked police car, the appellant suddenly broke away and ran across the street and into his own home. The police followed him. A scuffle broke out but the appellant was finally overcome and taken into custody. He was charged with driving whilst disqualified, escaping custody, two counts of hinder police, two counts of assault and driving a motor vehicle whilst his blood alcohol content exceeded the prescribed maximum. At trial a Magistrate held that the appellant’s initial arrest was unlawful because the arresting officer was a trespasser. The charges were consequently dismissed.

    [3] (1984) 155 CLR 1.

12. In the High Court Gibbs CJ, Mason, Wilson and Deane JJ considered that the only conclusion open on the evidence was that the arresting officer had an implied licence from the occupier of the premises to be upon the driveway where the arrest first took place.[4] They said:[5]

    While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked: cf. Edwards v. Railway Executive. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it: see, generally, Robson v. Hallett; Lipman v. Clendinnen; Lambert v. Roberts.

    [footnotes omitted]

    [4]    Halliday v Nevill (1984) 155 CLR 1 at 6.

    [5]    Halliday v Nevill (1984) 155 CLR 1 at 6-7.

13. With respect to the ambit of an implied licence to enter, the joint reasons continued:[6]

    Nor, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house. A passer-by is not a trespasser if, on passing an open driveway with no indication that entry is forbidden or unauthorized, he or she steps upon it either unintentionally or to avoid an obstruction such as a vehicle parked across the footpath. Nor will such a passer-by be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it or to lead away an errant child. To adapt the words of Lord Parker C.J. in Robson, the law is not such an ass that the implied or tacit licence in such a case is restricted to stepping over the item of property or around the child for the purpose of going to the entrance and asking the householder whether the item of property can be reclaimed or the child led away. The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property.

    [footnote omitted]

    [6]    Halliday v Nevill (1984) 155 CLR 1 at 7-8.

14. In the present case a distinction is to be made between the entry of Constable Halikias on the one hand and that of Constable Forbes and Senior Constable Davey on the other. Constable Halikias entered the premises and made his way toward the front door to speak to the occupant. The appellant’s argument is not dependent upon Constable Halikias’ entry, rather the appellant focuses on the entry of Constable Forbes and Senior Constable Davey.

15. The objective facts in Halliday v Nevill from which an implied licence to enter was inferred were listed in the joint judgment as a residential premises with an open driveway to the roadway, no suggestion that the driveway was closed off or blocked by a locked gate or any other obstruction, and no notice or other indication advising visitors generally or any particular class of visitor that entry was forbidden.[7] Accepting these facts, the joint reasons considered that it was implicit that “a variety of persons with a variety of legitimate purposes” had an implied licence to enter the property and walk down the driveway.[8] The question, however, was whether the class of person and purpose extended to police officers entering the premises for the purpose of questioning or arresting a person observed committing an offence on the street in the immediate vicinity of the premises. The joint reasons concluded:[9]

    The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative. That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land. Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer’s rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute (cf. Crimes Act, s. 459A and note generally Morris v. Beardmore and the discussion in the judgment of Kennedy J. in Dobie v. Pinker) of the common law. All that that conclusion involves is that, in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it. It follows that Police Constable Nevill was lawfully upon the driveway of 375 Liberty Parade when he arrested the appellant.

    [footnotes omitted]

    [7]    See Kuru v New South Wales (2008) 236 CLR 1 at [45] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

    [8]    Halliday v Nevill (1984) 155 CLR 1 at 8 (Gibbs CJ, Mason, Wilson and Deane JJ).

    [9]    Halliday v Nevill (1984) 155 CLR 1 at 8 (Gibbs CJ, Mason, Wilson and Deane JJ).

16. It is difficult to distinguish the objective facts relevant to the existence and content of an implied licence in the present case from those in Halliday v Nevill. In the present case, as in Halliday v Nevill, there was an open driveway to a public road which led to a residential premises. There was no gate or obstruction intended to prevent or impede access to the property. There was no sign or any form of notice advising people to keep out or, more particularly, police officers to keep out. The legitimate purpose that Constable Nevill had was to arrest Mr Halliday pursuant to the power to arrest without warrant contained in s 458 of the Crimes Act 1958 (Vic). Importantly, whilst that power authorised a police officer to take a person into custody, it did not authorise the officer to trespass upon private property to do so.

17. The fifth member of the Court in Halliday v Nevill was Brennan J. He said:[10]

    In the present case, if the police had an implied licence to enter on the driveway of 375 Liberty Parade, by whom was that licence revocable? Presumably not by the appellant, for he was not the person in possession of 375 Liberty Parade. For what purposes did the police have that person’s implied licence to enter? Once it is admitted that the police officers have an implied licence to enter to arrest, might a licence for other police purposes be implied? To install a traffic radar device on the driveway? Or carry out surveillance of neighbouring premises from there? The presence of the police officers on the driveway of 375 Liberty Parade was not for any purpose with which the person in possession was concerned. I am unable to see in the facts of the case any ground for inferring that the police had a licence from that person to come on to his driveway without his permission for the purpose of arresting a suspected offender.

    [10]   Halliday v Nevill (1984) 155 CLR 1 at 20.

18. Arguably the point of distinction between the joint reasons and Brennan J lies in the extent to which the ambit of the implied licence as found by Gibbs CJ, Mason, Wilson and Deane JJ was informed by policy considerations. Brennan J’s rhetorical questions expose the issue. I do not think this is the case to consider the depth of such considerations and the limit of their contribution to the content of an implied licence. Whatever the limit may be, having regard to the factual circumstances in Halliday v Nevill and this case, I cannot see how it would exclude the present case from the implied licence. True it is that Constable Nevill reasonably suspected that Mr Halliday had committed an offence when he entered the driveway, but the joint reasons in Halliday v Nevill do not limit the implied licence to situations where a statutory power to arrest has been enlivened. The joint reasons include in the ambit of the implied licence entry to question a lawful visitor. Prima facie, that is what Constable Forbes did.

19. I note that the occupant of the premises was aware of the police presence before Constable Halikias reached the front door. There is nothing in the evidence to suggest that she did anything to rescind the implied licence.

20. Was Mr Armistead unlawfully detained immediately upon the arrival of the police or soon thereafter? In R v Lavery King J said:[11]

    A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily.

    [11] (1978) 19 SASR 515 at 516.

21. In R v Conley King CJ described the circumstances of de facto arrest in similar terms:[12]

    A person is apprehended for the purposes of ss. 75 and 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v. King, per King J. at pp. 128-129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.

    [footnote omitted]

    [12] (1982) 30 SASR 226 at 239-240.

1. In Police v Pocius[13] Doyle J noted that “[t]hese formulations of the circumstances constituting de facto apprehension have been applied numerous times by this Court,[14] as well as interstate courts.[15]” Importantly, a suspect’s liberty is not unlawfully restrained just because he or she thought they were not at liberty to leave.[16] The inquiry is objective in the sense that the task is to assess what a reasonable person in the particular circumstances of the suspect would have inferred from the conduct of the police officers.[17]

   [13] [2018] SASC 38 at [47].

   [14]   For example, in R v Miller(1980) 25 SASR 170 at 184; R v S (1983) 32 SASR 174 at 185-186; R v Webb (1992) 59 SASR 563 at 571; DPP v Polyukhovich (No 3) (1993) 170 LSJS 300. See also R v Harris (1995) 64 SASR 85; R v King (1978) 19 SASR 118.

   [15]   State of New South Wales v Exton [2017] NSWCA 294 at [44]; Norton v The Queen (2001) 24 WAR 488 at [124].

   [16]   R v Lavery (1978) 19 SASR 515 at 516 (King J); R vO’Donoghue (1988) 34 A Crim R 397 at 402 (Hunt J, Carruthers and Wood JJ agreeing); New South Wales v Exton (2017) 270 A Crim R 182 at [45] (Basten JA, Meagher and Leeming JJA agreeing).

   [17]   New South Wales v Le [2017] NSWCA 290 at [7] (The Court).

2. When the officers first approached Mr Armistead he was sitting in his car waiting for Mr Sutton. Those circumstances remained until such time as Senior Constable Davey formed a suspicion that Mr Armistead had committed an offence. Mr Armistead had no intention of leaving the premises and the police had not asked him to do so. Equally none of the officers had told him not to do so. All that had occurred was that Constable Forbes had asked to see his driver’s licence and in reply obtained Mr Armistead’s driver’s licence number with which the Constable returned to the police car whilst Senior Constable Davey stood nearby. There was no evidence to the effect that Constable Forbes told Mr Armistead to stay put whilst he checked his licence number. Whilst he did not say as much, it could not have escaped Mr Armistead that Constable Forbes was checking the licence number he provided. True he felt that he could not leave, but he had no intention of leaving at that time. Also true was that Senior Constable Davey was standing nearby, but he had done nothing to restrain Mr Armistead’s liberty. What might have happened had Mr Armistead started his car and begun to exit the driveway cannot be predicted with any certainty.

3. The Judge who heard the voir dire said:

   I find the police pulled their car up on the opposite side of the road from the defendant. That is what all three police officers said they did. I reject the evidence of the applicant who says that they parked across his path.

4. This Court is in no position to interfere with that finding having not seen and heard the witnesses. Accepting the finding, there was no physical impediment to Mr Armistead leaving the premises.

5. I place little weight on the fact that immediately upon pulling up the police officers made their way toward Mr Armistead. It seems that the natural path to the front door required that they pass down the driver’s side of his car, as Constable Halikias did.

6. In my view, Mr Armistead was not under de facto arrest.

7. It is trite that a police officer needs no power to engage a person in conversation and ask that person questions. In Police v Moukachar (Moukachar) the respondent was prosecuted in the Magistrates Court for the unlawful possession of $30,000.[18] He was acquitted after the Magistrate, in effect, ruled that an illegal search had taken place. Police in an unmarked vehicle had pulled Mr Moukachar over as he was driving in the city with his arm extending outside his car window. In her judgment Vanstone J records the following conversation as having taken place:[19]

   [18] (2010) 107 SASR 450.

   [19]   Police v Moukachar (2010) 107 SASR 450 at [7].

   QDo you have your driver’s licence on you?

   ANo.

   QWhere is it?

   AI don’t have it.

   QWhy not?

   AIt was cancelled back in 2006.

   QDo you have any identification?

   AYes.

   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:

   QDo you have any photo ID?

   AI don’t think so.

   QWhat about in your bum bag?

   (no response)

   QYou seem nervous. Why are you so nervous, mate?

   AYou guys make me nervous.

   QWhy is that?

   ABecause last time I got maced.

   QYou 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:

   QWhat’s in the other pocket?

   ADo I have to?

   QWe have to establish your identity or you may be arrested.

8. Mr Moukachar then opened his bum bag revealing $30,000 in cash that was subject of the charge ultimately laid.

9. Effective enforcement of the road rules necessitates that police officers be able to ascertain the identity of drivers. In this regard ss 74AB(1) and (2) of the Summary Offences Act 1953 (SA) provide:[20]

   (1)   A police officer may ask a person questions for the purpose of obtaining information that may lead to the identification of the person who was driving, or was the owner of, a vehicle on a particular occasion or at a particular time.

   (2)   A person who—

   (a)refuses or fails, without reasonable excuse, to answer a question under subsection (1); or

   (b)in response to a question under subsection (1) gives an answer that is false or misleading in a material particular,

   is guilty of an offence.

   Maximum penalty: $1 250 or imprisonment for 3 months.

   [20]   As at 17 November 2016.

10. And s 96(1) of the Motor Vehicles Act 1959 (SA) provides:

    (1)   The driver of a motor vehicle, if requested by a police officer to produce his or her licence or learner’s permit, must produce the licence or learner’s permit either—

    (a)forthwith to the police officer who made the request; or

    (b)within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.

    Maximum penalty: $1 250.

11. And further, s 40V of the Road Traffic Act 1961 (SA) provides:

    (1)     In this section—

    personal details, in relation to a person, means—

    (a)     the person’s full name; and

    (b)     the person’s date of birth; and

    (c)     the address of where the person is living; and

    (d)     the address of where the person usually lives; and

    (e)     the person’s business address.

    (2)If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—

    (a)     is or may be a responsible person; or

    (b)     has committed or is committing or is about to commit an Australian road law offence; or

    (c)     may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or

    (d)     is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident,

    the officer may direct the person to give the officer then and there any or all of the person’s personal details.

    (3)If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.

    (4)     A person commits an offence if—

    (a)     the person is subject to a direction under subsection (2) or (3); and

    (b)     the person—

    (i)    engages in conduct that results in a contravention of the direction; or

    (ii)gives any detail that is false or misleading in a material particular in purported response to the direction; or

    (iii)produces any evidence that is false or misleading in a material particular in purported response to the direction.

    Maximum penalty: $5 000.

    (5)     Subsection (4)(b)(iii) does not apply if the person has a reasonable excuse.

    (6)In proceedings for an offence of contravening a direction under subsection (2) in relation to a failure to state a business address, it is a defence if the person charged establishes that—

    (a)     the person did not have a business address; or

    (b)     the person’s business address was not connected (directly or indirectly) with road transport involving vehicles.

12. In Moukachar Vanstone J said:[21]

    A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A and 74AB of the SOA and s 96(1) of the 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.

    [21] (2010) 107 SASR 450 at [13]-[14]; See also R v Dam (2015) 123 SASR 511 at [26] (Vanstone J, Kelly J and David AJ agreeing).

13. In the present case interesting questions arise as to whether, had Mr Armistead refused to answer any question about his identity or refused upon request to provide his licence or personal details, any of the offences contained in s 74AB(2) of the Summary Offences Act 1953 (SA), s 96(1) of the Motor Vehicles Act 1959 (SA) or s 40V of the Road Traffic Act 1961 (SA) would have been committed.[22] But like Mr Moukachar, Mr Armistead did not refuse to answer questions. Both men had a choice. Even though Mr Armistead thought he was obliged to answer Constable Forbes, the asking of the question involved no unlawfulness.[23]

    [22] Section 40V of the Road Traffic Act 1961 (SA) could not have been invoked.

    [23]   R v Dam (2015) 123 SASR 511 at [31], [33] (Vanstone J, Kelly J and David AJ agreeing).

14. Respectfully, each of s 74AB(1) of the Summary Offences Act 1953 (SA), s 96(1) of the Motor Vehicles Act 1959 (SA) and s 40V of the Road Traffic Act 1961 (SA) do more than as was determined in Moukachar. Implicitly, each section empowers the police to detain a person to whom those sections apply in the circumstances in which they apply in order to ask the relevant question or questions. Detention in such circumstances is distinguished in the authorities from arrest. In Collins v Wilcock Goff LJ observed:[24]

    … the word “detaining” can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be “stopping and detaining” the latter. There is nothing unlawful in such an act. If a police officer so “stops and detains” another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful.

    [24] [1984] 1 WLR 1172 at 1180.

15. Accepting this, in my view, for the same reasons as I have given in concluding that Mr Armistead was not under de facto arrest, I also consider that he was not detained or purportedly detained under any statutory power. He sat in his car waiting, as he had always intended doing. He was not stopped or impeded in any way. This conclusion also provides reason to distinguish R v Chapman.[25] Here no detention after the exhaustion of the power to detain implicitly conferred by statute occurred.

    [25] (2001) 79 SASR 342.

16. On appeal it was not contended that Senior Constable Davey did not develop a reasonable suspicion justifying the subsequent search of Mr Armistead and his car under ss 52(6) and (9) of the Controlled Substances Act 1984 (SA).

17. For these reasons in my view neither Constable Forbes nor Senior Constable Davey were trespassers and neither unlawfully arrested nor unlawfully detained Mr Armistead. The Judge was right to admit the evidence of the search of Mr Armistead’s car and to conclude that the public policy discretion was not enlivened.

18. If I am wrong, like the Judge I would in any event refuse to exclude the evidence in the exercise of the public policy discretion.

19. The relevant unlawfulness enlivening the public policy discretion would be the act of apprehending or detaining Mr Armistead.

20. The rationale underpinning the public policy discretion is that convictions obtained relying on illegally or improperly obtained evidence “may be obtained at too high a price”.[26] In Bunning v Cross Stephen and Aickin JJ, with whom Barwick CJ agreed, explained:[27]

    The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be “a less evil that some criminals should escape than that the Government should play an ignoble part” — per Holmes J. in Olmstead v. United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.

    [footnote omitted]

    [26]   R v Ireland (1970) 126 CLR 321 at 335 (Barwick CJ).

    [27] (1978) 141 CLR 54 at 77-78.

21. In Ridgeway v The Queen Mason CJ, Deane and Dawson JJ said:[28]

    In its exercise, a trial judge must engage in a balancing process 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 is to enforce the law”.

    [footnote omitted]

    [28] (1995) 184 CLR 19 at 31.

22. In Bunning v Cross Stephen and Aickin JJ identified five factors to be weighed in the exercise of the discretion: [29]

    ·whether the unlawfulness was deliberate or reckless, on the one hand, or the product of a mistaken belief on the other (how remote is the error from a deliberate or reckless decision to disregard the law by those whose duty is to enforce?);

    ·whether the unlawfulness affects the cogency of the evidence obtained (but generally cogency has no role where the unlawfulness was deliberate or reckless; the availability of other cogent evidence that may be relied upon points to exclusion of the unlawfully or improperly obtained evidence);

    ·the ease with which the law might have been complied with (was there a deliberate cutting of corners?);

    ·the nature of the offence (a comparison of the seriousness of the charge and the unlawful conduct engaged in is required); and

    ·whether it was the legislature’s intention narrowly to restrict the police in the exercise of the power conferred.

    [29] (1978) 141 CLR 54 at 78-80.

23. The police attended the premises for a legitimate purpose. What occurred in relation to Mr Armistead occurred by chance and not design. Any detention or apprehension was more notional than real, bearing in mind Mr Armistead’s own intent to remain sitting in his car waiting for Mr Sutton. That said, the Court should be vigilant to protect the liberty of the subject from unlawful interference by the executive. The evidence does not establish that either Constable Forbes or Senior Constable Davey considered that they had exercised any statutory power. It cannot be said that either officer deliberately or knowingly acted unlawfully. It cannot be said that either officer was using a power to create or orchestrate a situation that allowed them to search Mr Armistead and his car. If there were a trespass, the occupant took no exception to it. In fact, it may be said that implicitly she extended the implied licence to enter to include what unfolded at Mr Armistead’s car. The unlawfulness did not affect the cogency of the evidence. No search was conducted in the absence of a reasonable suspicion enlivening the power to search. If the search were excluded the prosecution case would fail. The police car not being parked in a position preventing Mr Armistead from leaving, it is difficult to see what compliance with the law would have actually required beyond Senior Constable Davey taking up a position away from Mr Armistead’s vehicle so that he was in no obvious position to retard Mr Armistead thereby avoiding any appearance of Mr Armistead being detained. There is no suggestion that the officers involved have a practice of detaining people unlawfully.

24. Having regard to these considerations, in my view balancing the competing public interests to which I have referred above, the evidence was rightly admitted. A conviction obtained on the strength of the evidence of the search is not one, having regard to the premium that the community places upon the liberty of the individual, obtained at too high a price.

    Unreasonable and cannot be supported by the evidence

25. In BCM v The Queen the High Court said:[30]

    The principles to be applied in determining a ground which challenges the sufficiency of the evidence to support a conviction are well-established. They are collected in SKA v R. Prominent in the majority’s discussion in SKA of the application of those principles is the requirement that the appellate court’s reasons disclose its assessment of the capacity of the evidence to support the verdict.

    [footnotes omitted]

    [30] (2013) 88 ALJR 101 at [31].

1. The reference to SKA v The Queen is to the joint judgment of French CJ, Gummow and Kiefel JJ who said:[31]

   It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

   “Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

   This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”

   The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

   “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

   ...

   In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

   “In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

   [31] (2011) 243 CLR 400 at [11]-[14].

2. In Filippou v The Queen the High Court considered the application of s 6(1) of the Criminal Appeal Act 1912 (NSW) in the context of a trial conducted by a judge sitting without a jury.[32] French CJ, Bell, Keane and Nettle JJ said:[33]

   As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”. For the purposes of the second limb, the question is whether the judge has erred in law in the sense of a departure from trial according to law. Under the third limb, the question is whether for any other reason there has been a miscarriage of justice.

   In Fleming, the Court left open the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way or where there has been a misdirection leading to a miscarriage of justice. For the purposes of this appeal, it is necessary to answer that question.

   Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt “for all purposes”. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.

   Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:

   “It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

   [footnotes omitted]

   [32] (2015) 256 CLR 47.

   [33]   Filippou v The Queen (2015) 256 CLR 47 at [6], [9]-[12].

3. As Lovell J and I said in R v Becirovic,[34] s 6(1) of the Criminal Appeal Act 1912 (NSW) mirrors ss 158(1) and (2) of the Criminal Procedure Act 1921 (SA) and s 353(1) of the Criminal Law Consolidation Act 1935 (SA),[35] whilst s 133(1) of the Criminal Procedure Act 1986 (NSW) is not materially different to s 7(4) of the Juries Act 1927 (SA). The consequence is that the approach articulated in Filippou v The Queen applies in this State to an appeal against a conviction returned by a judge sitting without a jury on the grounds that the verdict is unreasonable or cannot be supported by the evidence.

   [34] [2017] SASCFC 156 at [212].

   [35]   Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) sch 1 cl 41.

4. In his written submissions the appellant contended:

   The prosecution case primarily relied upon the evidence of Davey. It was he who described the demeanour of the appellant and he who conducted the search of the vehicle ultimately locating the methylamphetamine. There was no corroboration of his evidence. Other problems with this aspect of the prosecution case included the fact that, despite Davey having and subsequently operating a camera, no photographs were taken of the drugs in situ. Nor did Davey, as the investigating officer, submit the packaging of the drugs for fingerprint or DNA analysis.

   A further issue arose on the evidence of Davey in that there was a shift in his evidence between the voir dire and trial proper. On the voir dire Davey gave evidence that the vehicle was parked and reversed into the driveway (see Exhibits VDP2 and VDP3). At the trial proper, Davey suggested the vehicle could have been parked on council land. It is submitted that this was an ex post facto invention to legitimise the actions of police on the night in question and adversely impacts upon the credibility of Davey.

   [footnotes omitted]

5. The failure to have the methylamphetamine packaging examined for the presence of fingerprints or for the presence of cellular material capable of yielding a DNA profile and to have the packaging photographed in situ or the search video-recorded only advances the independent assessment to be undertaken insofar as it highlights the prosecution dependence upon the credibility and reliability of Senior Constable Davey and the absence of any corroborative evidence. These things do not of themselves render a finding of guilt unreasonable and insupportable.

6. The appellant contends that upon an independent assessment of the evidence the prosecution case may be seen to contain inconsistencies and prior inconsistent statements on critical issues such that this Court should conclude that the trial Judge must have entertained a reasonable doubt.

7. As the trial Judge noted in his reasons, the real issue in dispute was whether it could be proved beyond reasonable doubt that the accused was knowingly in possession of the methylamphetamine.[36] The prosecution case depended upon the evidence of Senior Constable Davey as to the demeanour of Mr Armistead immediately prior to the search of Mr Armistead’s car, his observations of the movements of Mr Armistead’s hands in, the prosecution alleged, attempting to hide the package containing the methylamphetamine, his evidence of finding the methylamphetamine stuffed into the crease where the bottom and back of the driver’s seat met, being the seat that moments before Mr Armistead occupied, and his evidence that the package previously partially visible was found in a location consistent with that related to Mr Armistead’s hand movements. Putting to one side the credibility and reliability of Senior Constable Davey momentarily, the prosecution case gained strength from the evidence of the appellant in that he conceded that the car was his, that no-one else had driven it that day and that he was a methylamphetamine user, using around $500 worth of methylamphetamine (approximately 1.75 gm) every three days or so, and that he earned around $1200 a week.

   [36]   R v Armistead [2018] SADC 59 at [18].

8. The defence case was one of denial of knowledge of the presence of the package containing the methylamphetamine, but not the fact of the finding of the package containing the methylamphetamine in Mr Armistead’s car. Mr Armistead also gave evidence that Mr Sutton was a methylamphetamine user and that he had driven Mr Sutton to the premises that night.

9. The forensic contest was, in truth, one of oath against oath. If Senior Constable Davey’s evidence was accepted as credible and reliable such that it could be relied upon beyond reasonable doubt, there was no room for any possibility that Mr Armistead was not knowingly in possession of the methylamphetamine. The inescapable inference to be drawn, if Senior Constable Davey’s evidence was accepted beyond reasonable doubt, was that Mr Armistead had attempted to hide the packaging because otherwise he could not innocently explain his possession of it. If Mr Armistead’s evidence was considered to give rise to a reasonable possibility, someone else left the methylamphetamine in his car where Senior Constable Davey found it. The prosecution and defence hypotheses were mutually exclusive. That is not to encourage any form of choice or sequential reasoning, merely to highlight the respective cases advanced. All of the evidence had to be considered in determining whether the prosecution case had been proven beyond reasonable doubt and the defence hypothesis disproved as a reasonable possibility.

10. In his reasons the trial Judge was alive to the inconsistencies in the evidence of Senior Constable Davey to which counsel at trial and on appeal referred. He took these into account in his assessment of the credibility and reliability of the officer. His Honour said:[37]

    On a close analysis of the evidence of Officer Davey, together with the statements of other police officers, the preliminary impression formed was that his evidence was credible. The one or two inconsistencies of initial observation or recall are consistent with three uniformed police officers performing a standard attendance at such a premises, and proceeding unexceptionally to investigate the presence of an occupied vehicle parked in the driveway of a house of interest to police. Officer Davey gave evidence in a clear, forthright and reasonable manner, and gave an initially credible impression. He was straightforward, matter of fact and consistent as to the events of the evening.

    …

    Having heard the totality of the evidence at trial and counsel’s helpful addresses, in the court’s view Officer Davey was an honest and reliable witness whose evidence as to the search, movements and reactions of the accused and the location of the drugs concerned was compelling. The inconsistencies between his evidence and the other officers were minor, but establish a lack of any collusion on the part of the officers concerned and are the kind of details that may well have been remembered differently or not recalled 18 months after the event.

    [37]   R v Armistead [2018] SADC 59 at [96], [99].

11. The Judge set out his assessment of the appellant as a witness:[38]

    By contrast, the accused gave evidence very poorly. Much of his evidence was mumbled almost inaudibly into his own chest, and as is apparent from the few quoted examples earlier in these reasons, appeared uncertain, unclear, and quite unconvincing. On several occasions, the court had to ask the accused to speak audibly, and raise his voice, just so that his words could be heard and indeed recorded by the stenographer. Unfortunately, the overall impression given was of an uncertain, evasive and wholly unconvincing witness.

    …

    By contrast, the accused was a very poor witness with many of his answers inaudibly muttered, rambling and inconsistent within themselves. His presentation was poor and, overall, entirely unconvincing.

    [38]   R v Armistead [2018] SADC 59 at [97], [101].

12. The Judge held:[39]

    [39]   R v Armistead [2018] SADC 59 at [102]-[104].

    Having considered all the evidence including importantly, the defence case, the court finds it proven beyond reasonable doubt that the events concerning the accused’s presentation, state of agitation, movements, and location of the drugs as observed by Officer Davey are proven beyond reasonable doubt. The court rejects the accused’s denials as a reasonable possibility.

    Accordingly, the court finds proven beyond reasonable doubt all the factual circumstances and observations set out in the evidence of Officer Davey. The court finds the evidence of Detective Brevet Sergeant Ward proven beyond reasonable doubt. In particular, the court finds proven beyond reasonable doubt that:

    ·The accused was sitting alone in his vehicle at 9:25pm in the driveway of a house of interest to police in connection with drugs.

    ·That on police approach, the accused was trembling, fidgety, nervous and unable to sit still, constantly moving about, reaching for things, and shuffling around.

    ·As the accused was speaking to police and the accused was moving about, police observed a package wrapped in white tissue subsequently searched and analysed to contain 13.9 grams of methylamphetamine on the driver’s car seat underneath the accused as he leant over.

    ·That the accused, while speaking with police, moved his head and eyes in an upward direction in an attempt to distract the police officer whilst at the same time moving his left arm and hand in a backwards motion down the side of his body underneath his leg towards the back of his seat. When the accused was shortly afterwards requested to exit the vehicle, the package containing 13.9 grams of methylamphetamine was found stuffed into the crease or gap between the back and bottom of the driver’s seat where the accused had been sitting.

    ·The drugs comprised 13.9 grams of ‘Ice’ methylamphetamine of relatively high purity, worth between $5,550 and $11,100 if sold in ‘point’ deals.

    ·The accused was the only person observed in the vehicle at the time of police attendance.

    ·The car was the accused’s work car to which no one else commonly had access.

    The prosecution must prove its case beyond reasonable doubt. The overwhelming inference is that the accused was knowingly in possession of the package, and knew it was a controlled drug …

13. In arriving at the conclusions set out above the Judge analysed the evidence of the appellant. His Honour said:[40]

    The prosecution bears the onus of excluding any reasonable hypothesis consistent with innocence. The court has carefully considered the possibility of any hypothesis consistent with innocence, in particular whether the methylamphetamine could have been left there by someone unconnected with the accused, left there by ‘Beau’ or whether in any other way the accused may possibly not have been in knowing possession of the package of methylamphetamine. In the court’s view there is no such available hypothesis. It is highly unlikely that methylamphetamine of that value would be left lying around by anybody. It is highly unlikely that one drug user would leave that amount of his or her drug in the possession of another drug user for no apparent reason. It is highly unlikely that, even if the methylamphetamine had been in the possession of ‘Beau’, it could have physically found its way to underneath the accused’s body on the accused’s seat without the accused’s knowledge acquiescence and possession, nor is there any apparent reason why this would be likely to occur.

    In the court’s view there is no reasonable hypothesis other than the conclusion that the accused was in knowing possession of the methylamphetamine. The location of the drug, the accused’s agitation and anxiety, the accused’s clumsy attempt to distract police and hide the drug in the back of the seat together with the value of the drug, its location in the car and the totality of the circumstances, in final analysis exclude any reasonable hypothesis other than that the accused was knowingly in possession of the methylamphetamine.

    The court also finds proven beyond reasonable doubt that the substance was a controlled drug in the form of methylamphetamine.

    [40]   R v Armistead [2018] SADC 59 at [104]-[106].

14. The primary inconsistency or inadequacy exposed in cross-examining Senior Constable Davey was his evidence regarding the position of Mr Armistead’s car in the driveway. In his evidence at trial he raised the possibility that Mr Armistead’s vehicle was not wholly on private property. He did not say that Mr Armistead’s car was or was not wholly on private property. He said he did not know as he did not know where one ended and the other started. He said he just approached the car. He may have entered private property in doing so, but did not know.

15. The real criticism of the Senior Constable was not that in the trial he had said something inconsistent with his evidence on the voir dire, but that he failed to say at the voir dire that he was not sure whether he was or was not on private property. Exhibit D1, which Senior Constable Davey was asked to look at in the trial and which contains his marking of the position of Mr Armistead’s car, allows one to understand why he was unsure. I do not read the officer’s evidence at trial as inconsistent with that given by him on the voir dire.

16. I cannot say that the conclusions arrived at by the trial Judge and quoted above were not open on the evidence. The Judge said that he “carefully considered and assessed the evidence of each witness, particularly those who gave oral evidence, with great care”.[41] The Judge had an advantage over this Court in seeing and hearing Senior Constable Davey and the appellant. Having read the transcript of the evidence, I cannot say that the Judge has misused that advantage in some way. His findings of fact are not glaringly improbable or contrary to incontrovertible evidence. The imperfections in the prosecution case to which the appellant has referred do not cause me to think that the Judge should have had a reasonable doubt.

    [41]   R v Armistead [2018] SADC 59 at [94].

1. I would dismiss this ground of appeal.

   Conclusion

2. I would dismiss the appeal against conviction.

   The application for permission to appeal against sentence

3. The Judge sentenced Mr Armistead to imprisonment for three years and 10 months. He fixed a non-parole period of two years and six months. The Judge considered Mr Armistead’s offending too serious to suspend upon him entering into a bond or to order that the sentence be served on home detention.

4. The appellant contends that the sentence was manifestly excessive in two respects. First, the head sentence and non-parole period are simply too long. Secondly, any sentence of imprisonment should have been ordered to be served on home detention.

5. In sentencing Mr Armistead the Judge referred to his finding that Mr Armistead was in possession of 13.9 gm of ice containing 11.1 gm of pure methylamphetamine. That is, the ice was approximately 80 per cent pure. The evidence adduced at trial was that it would sell for $50 to $100 per 0.1 gm deal at street level. Accordingly, the 13.9 gm, if sold in 0.1 gm deals at $100 per 0.1 gm deal, was worth over $10,000.

6. The Judge sentenced Mr Armistead on the basis that he possessed the ice primarily for sale but that he would have used some in the course of satisfying his own addiction.

7. The Judge referred to Mr Armistead’s personal circumstances as follows:

   You are presently 29 years of age, born and raised in South Australia. You have a supportive family. You attended Murray Bridge Unity College and completed year 12.

   You initially worked in the Riverland prior to the family moving to Adelaide to be involved in the family business.

   The family business is involved in transporting food and beverages, both locally and interstate. Unfortunately, you started taking drugs at the age of 19 and over time, your drug use worsened, affecting your ability to work. By the time of this offence in 2016, you were no longer living with your family. Rather, you were living and associating with people involved in drugs who would certainly not have been good influences.

   Your counsel indicated that since your arrest you have been trying to address your drug use, although there have been a number of instances of failing required drug testing.

   Your counsel tendered materials reflecting your positive engagement with OARS between March and July 2017. You were, however, taken back to work in the family business as outlined and you now fulfil the role of operations manager. Your father suffered health issues in 2017 and you have been particularly needed in the business in light of that.

   Your mother has written to the court indicating you have been a great help in the family business and you have the family support now and in the future.

8. The Judge then made observations as to the seriousness of the offence, the prevalence of methylamphetamine use in the community and the harm it causes. The Judge expressed the view that the appellant was in possession of a considerable quantity of ice, notwithstanding that a portion of it was for the appellant’s own use. He added that he did not know to what extent the appellant stood to gain financially from his dealing, nonetheless the quantity was significant as was its value. The Judge observed that general and personal deterrence must play a significant part in any sentence he imposed. The Judge then sentenced Mr Armistead saying:

   From a starting point of four years imprisonment, that will, however, be reduced by a total of two months to reflect credit for both your time in custody and your time on home detention bail subsequent to your arrest.

   There will be a non-parole period of two years and six months. Regrettably, your offending is too serious, even when balanced against all the matters urged in your favour, for there to be good reason to suspend the sentence.

   As to home detention, the court takes into account all submissions made and matters tendered by your counsel, the home detention report, the statutory criteria and the recent decisions of the Supreme Court on the topic.

   At the end of the day, your offending is too serious and a home detention sentence would not represent adequate punishment for the offending. Accordingly, home detention is not appropriate.

   In summary, your sentence is three years and 10 months imprisonment with a non-parole period of two years and six months, to date from today. The seized drugs are forfeited pursuant to the legislation.

9. In her submissions counsel for Mr Armistead accepted that the guidance provided by this Court in R v Young as to the sentencing of street-level dealers was relevant in sentencing Mr Armistead.[42] In R v Young Kourakis CJ, with whom Vanstone and Stanley JJ agreed, said:[43]

   Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.

   There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.

   Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.

   [42] (2016) 126 SASR 41.

   [43] (2016) 126 SASR 41 at [66]-[68].

10. Nonetheless, having regard to the fact that this was Mr Armistead’s first drug offence, that his antecedents were relatively minor, and that his prospects of rehabilitation were good, counsel submitted that the starting point should have been lower than four years. Further, and, in any event, the non-parole period as a proportion of the head sentence (approximately 65 per cent) was too high having regard to Mr Armistead’s prospects of rehabilitation.

11. The contention that Mr Armistead’s prospects of rehabilitation are good is based on the fact that he is employed, since being charged has made positive steps to address his drug addiction (albeit that at times he has experienced setbacks) and has the support of his parents. As for his antecedents, two main points fall to be made. First, Mr Armistead’s antecedents are relatively minor and have never resulted in him being imprisoned. Secondly, I understand his four convictions for breaching bail were each comprised of his returning a positive result for the presence of illicit drugs in his system whilst on bail for the offending subject of this application.

12. The maximum penalty for trafficking in a controlled drug is imprisonment for 10 years or a fine of $50,000 or both. Here there was an element of commerciality. As with all trafficking offences, general deterrence attracted significant weight.[44] I do not overlook that this was a case involving ice. In Haddara v The Queen the Victorian Court of Appeal said:[45]

    The prevalence of trafficking in ice is so great, the Director submitted, that general deterrence must be given even more focus in the case of that drug than in others. To afford general deterrence greater prominence in cases of trafficking in ice than in cases involving the trafficking of other drugs, the Director submitted, does not offend the principles in Pidoto. It was submitted that Pidoto rests on the foundation that by determining a “quantity-based” relativity between different drugs, the legislature excluded the possibility of a “harm-based gradation”. Nothing in that reasoning, however, requires a sentencing judge to exclude from consideration other relevant aspects of an offence unrelated to the harmful characteristics of the drug. For that reason, so the Director submitted, given that the available evidence demonstrates that trafficking in ice is prevalent, it is permissible for a sentencing judge to apply the “ordinary approach” to prevalence, and give additional weight to general deterrence and denunciation.

    In our view, the Director’s submissions as to how trafficking in ice ought now be approached should be accepted. As we previously observed, in Pham, French CJ, Keane and Nettle JJ recognised that although the court in Adams rejected any idea of a judicially constructed assessment of the relative harmfulness of the different kinds of narcotic substances, nothing said in Adams displaced the holding in Wong that to treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represented a departure from fundamental sentencing principle.

    …

    It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent but that its prevalence has increased. Prevalence of the offence of trafficking in methylamphetamine is thus a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence. That said, in the instant case it would not be appropriate to take such prevalence into account as a relevant factor in imposing sentence on the applicant, since it was not a matter raised before the sentencing judge.

    [footnotes omitted]

    [44]   R v Mangelsdorf (1995) 66 SASR 60 at 70-71 (Doyle CJ); R v Di Maria (1996) 67 SASR 466; R v Kong (2013) 115 SASR 425 at [90] (The Court); R v Yavuz (2018) 130 SASR 231 at [118] (The Court).

    [45] (2016) 260 A Crim R 306 at [66]-[67] and [69] (Redlich, Priest and Beach JJA).

13. In my view those observations apply equally in this State.[46] Crystal methylamphetamine or ice is one of the more pure forms of methamphetamine. Purity results in the high experienced being of greater intensity. The National Drug Strategy Household Survey 2016 states that the intense high brings with it “intense reactions … [and] … powerful responses including comedown, the potential for dependence (addiction) and chronic physical and mental problems”.[47]

    [46]   Prevalence in this State is also supported by the findings in Australian Criminal Intelligence Commission, National Wastewater Drug Monitoring Program (Report 7, April 2019).

    [47]   Australian Institute of Health and Welfare, National Drug Strategy Household Survey 2016: Detailed Findings (Report, 2017) at 68.

14. I would not go so far as to say that the appellant’s prospects of rehabilitation are good. His failure to abstain from the use of drugs despite being on bail and risking the consequential loss of his liberty causes me to be more guarded.

15. It must also be borne in mind that the appellant maintains his innocence. He can then be given no credit for remorse or contrition.

16. In the end I am not persuaded that the sentencing Judge’s starting point was manifestly excessive. But for the appellant’s failure to comply with his bail agreement, I would have thought him the sort of person who would benefit from a lower non-parole period as a portion of the head sentence, but I cannot say that the non-parole period imposed is manifestly excessive.

17. I turn to the question of whether the sentencing Judge was wrong not to order that the sentence he imposed be served on home detention. Section 71(2)(a) of the Sentencing Act 2017 (SA) provides:

    a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice …

18. In R v Filipponi Kourakis CJ, with whom Vanstone and Nicholson JJ agreed, said:[48]

    In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.

    On the other hand cases of trafficking which fall at the very lower end of the range of objective seriousness when combined with strong prospects of rehabilitation may attract a favourable exercise of the discretion.

    [48] (2016) 126 SASR 464 at [37]-[38].

19. I cannot say that the offending in this case falls at the very lower end of the range of objective seriousness. As I have said the commercial aspect to Mr Armistead’s offending was not insignificant.[49] In maintaining his innocence he provides no explanation for the offending that ameliorates such conclusion. He is not remorseful or contrite. His prospects of rehabilitation are guarded. The harm to which he would have willingly exposed the community suggests that a sentence carrying with it the punitive experience that accompanies home detention would not adequately achieve the deterrent purposes of sentencing.

    [49]   The crystals could have been cut further for profit (Detective Brevet Sergeant Ward indicated that 0.03 gm was not an uncommon dose) but that would have effected appearance and purity.

20. I would dismiss the application for permission to appeal against sentence.