R v ARTHUR - [2018] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ARTHUR
[2018] SADC 116
Reasons for Decision of Her Honour Judge McIntyre
16 November 2018
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The applicant has been charged on Information with a number of offences including two counts of trafficking in a controlled drug and two counts of unlawful possession. These charges arise out of searches of the applicant's vehicle and his home address. The applicant applies under Rule 49 of the District Court Rules for orders that the evidence of the two searches be excluded from evidence in his trial on the ground that the search and seizure in each case was unlawful.
Held:
1. Application granted.
2. Orders that the prosecution not be permitted to lead evidence of the results of the two searches.
Controlled Substances Act 1984 s51 s52; Road Traffic Act 1961 s47; District Court Criminal Rules 2014 R49; Summary Offences Act s74AB, referred to.
R v Neal (2017) 128 SASR 20; Bain v Police (2011) 112 SASR 10; Police v Moukachar (2010) 107 SASR 450; Armstrong v R (1989) 53 SASR 25; R v Kola (2002) 83 SASR 477; R v Dam & Nguyen (2015) 123 SASR 511; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASFC 7; R v Marafiote (2014) 118 SASR 511 ; R v Versac [2011] QCA 318; R v Bainbridge [1999] NZCA 180 ; R v Eggen & Eggen-Zeytoun [2016] SADC 26; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391; R v Golja [2017] SASFC 61, considered.

R v ARTHUR
[2018] SADC 116

The applicant has been charged on Information with a number of offences including two counts of trafficking in a controlled drug and two counts of unlawful possession arising out of searches of the applicant’s vehicle and his home address. The applicant has applied under Rule 49 of the District Court Criminal Rules for orders that the evidence of the two searches be excluded from evidence in his trial on the ground that the search and seizure in each case was unlawful. Specifically he seeks exclusion of all evidence and items seized by police on 18 August 2016 from a red Holden Commodore, registration S924-BLK (“the first search”); and all evidence and items seized by police on 19 August 2016 following the execution of a warrant under s52 of the Controlled Substances Act 1984 (“CSA”) at 5 Elgin Avenue, Evanston (“the second search”).
For the reasons that follow I will grant the application and I will order that the prosecution not be permitted to lead evidence of the results of the two searches.
Background
Two police officers gave evidence on the voir dire, Senior Constable Armstrong and Brevet Sergeant Sweetman. Their evidence, in brief, was that in the early afternoon of 18 August 2016 they were on patrol in uniform in a marked police vehicle. It was part of their duties on that day to conduct drive by observations of 71 Yorktown Road, Elizabeth Park. That address was of interest to police because of intelligence that suggested one of the occupants, Ms Rhiannon Lamb, may have been trafficking in illicit drugs. The intelligence was not sufficient to enable police to search that premises but it did indicate a need to keep those premises under observation.
As they drove past the property Senior Constable Armstrong and Brevet Sergeant Sweetman saw a red Holden Commodore S924-BLK (“the Commodore”) parked in Butler Street adjacent to 71 Yorktown Road. Both officers said they noted the vehicle because it was parked in a location where they had observed other vehicles to park when visiting 71 Yorktown Road.
They drove past the property and did not stop. They came back some 15 minutes later driving along Butler Street towards Yorktown Road. As they did so they observed the Commodore driving in the opposite direction along Butler Street. The police conducted a U-turn. Both officers gave evidence that the Commodore sped up but there was a difference between them as to when this occurred. Senior Constable Armstrong said it was as they were making the U-turn whereas Brevet Sergeant Sweetman said it was before. It is however common ground between the two police officers that they made the decision to pull over the Commodore prior to this observation.
When the Commodore stopped, Senior Constable Armstrong says that he approached the driver’s door of the vehicle and had a conversation with the driver who he identified as the applicant. The first thing he requested was for the applicant to produce his driver’s licence but the applicant was unable to do that. Senior Constable Armstrong therefore asked the applicant for his details and requested the applicant to accompany him to the police vehicle so that they could ascertain his identity. As they were walking to the police car Officer Armstrong asked the applicant what he had been up to that day; he responded that he had been at a friend’s in Craigmore but did not mention anything about being at 71 Yorktown Road. Senior Constable Armstrong thought the applicant was evasive when answering questions. He also made some observations about the applicant’s demeanour saying that he appeared nervous and that he did not comply with directions to keep his hands out of his pockets.
Brevet Sergeant Sweetman gave evidence that he could not recall who asked the applicant for his driver’s licence but said that he asked the applicant questions about 71 Yorktown Road and in particular whether the applicant knew the occupant, Ms Lamb. Brevet Sergeant Sweetman noted in his notebook that ultimately the applicant admitted that he did know Ms Lamb. He made observations of the applicant’s demeanour whilst he asked these questions describing him as being in a “very heightened anxious state”.[1] It is not clear when in the sequence of events this occurred as Senior Constable Armstrong had no recollection of hearing this and Brevet Sergeant Sweetman could not be clear when it might have occurred.
[1] TX 80-81
Brevet Sergeant Sweetman conducted some checks on the applicant’s licence. It was discovered that he had a cancelled licence and that there was a drug user warning on the police computer system. Brevet Sergeant Sweetman said that there was also an indication of recent involvement with police in relation to drugs but Senior Constable Armstrong did not give evidence of that.
Following this Senior Constable Armstrong conducted a search of the applicant and his vehicle identifying his power to do so as section 52 of the CSA. Nothing of note was found on the applicant but the search of the Commodore located a substance weighing 20.7 grams and subsequently found to contain methylamphetamine and two bundles of cash totalling $8,050 and $7,770 in a backpack. Further a mobile phone was seized which showed recent messages consistent with drug dealing. The officers arrested the applicant.
The following day Senior Constable Armstrong obtained a warrant under s.52 of the CSA to search the applicant’s home address 5 Elgin Avenue, Evanston 5116. Both officers attended the second search; a further 22.1 grams of substance containing methylamphetamine was located hidden in a vacuum cleaner.
Issues
A number of issues arise in this matter:
1.   Was the decision to stop the Commodore lawful?
2.   Was it lawful for the police to ask the questions that they did once the applicant stopped his vehicle?
3. Was the information known to Senior Constable Armstrong at the time of the first search sufficient to form a reasonable suspicion that there would be a substance or equipment that would afford evidence of an offence against the CSA?
4.   If the first search was unlawful should the evidence obtained in the course of the second search be excluded as tainted?
The decision to stop the Commodore.
The defence contends that the police decision to stop the applicant’s Commodore was, in effect, no more than a pretext to gain further information that might assist in providing a basis for a search of the applicant and his car. The prosecution contends that the police were lawfully exercising their power to stop a motor vehicle under the Road Traffic Act 1961 (“RTA”) to check the licence details of the driver and that it does not matter that the police may have had in mind that they would make other enquiries at the same time.
Senior Constable Armstrong says they decided to pull over the vehicle under s 47 of the RTA but indicated that he was not sure if he had the correct section. His understanding was that police have the power under the RTA to stop a vehicle to ascertain who the driver of the motor vehicle is at a certain time. Section 47 of the RTA governs the offence of driving under the influence of drugs or alcohol. It is likely that Senior Constable Armstrong intended to reference s40H of the RTA which allows an authorised officer to ‘direct the driver of a vehicle to stop for the purpose of or in connection with exercising other powers under a road law’.
The road law articulated by both police officers was the power to identify the driver of the vehicle and to conduct a licence check. Section 96(1) of the Motor Vehicles Act (MVA); provides that if the driver of a motor vehicle is ‘requested by a police officer to produce the driver’s licence or learner’s permit’ that person must do so forthwith. In addition, the prosecution points to section 74AB of the Summary Offences Act 1953 (SOA) and section 40V(2) of the RTA both of which authorise police to direct drivers of motor vehicles to provide personal details for the purpose of identification.
Senior Constable Armstrong stated that the purpose of stopping the Commodore was to conduct a licence check to find out who was driving the vehicle.[2] His reason for wishing to identify the driver that was that he had a “general curiosity” based on where he saw the Commodore parked.[3]
[2] TX 38
[3] TX 32
Brevet Sergeant Sweetman also described being curious about the Commodore because of where it was parked[4] and described the vehicle as “a drug target”.[5] He said that in his experience people attending at drug addresses often have issues with respect to suspended or disqualified driver’s licences or in driving stolen vehicles. Brevet Sergeant Sweetman said that the police were exercising their powers under the RTA primarily to check the licence details of the driver but agreed that one of the interests he had was that the car might contain drugs.[6]
[4] TX 74
[5] TX 76
[6] TX 74
Whilst both officers refer to stopping the vehicle for the purpose of a licence check, they were not conducting the licence check in connection with any road law. Both police officers said that the Commodore appeared to speed up when the driver observed police in the vicinity but there is no suggestion on their evidence that this formed any part of the decision to require the vehicle to stop. The police had also conducted a check on the registration of the Commodore; there was no indication that the vehicle was stolen, unregistered or otherwise of interest to police. Self-evidently they did not know who the driver was at the time of the decision to stop the Commodore. The evidence of the two police officers made it clear that the decision to stop the vehicle was based solely on the fact that it had been parked in the vicinity of 71 Yorktown Road and they wanted to identify the driver and ascertain if he had any connection with that address.
The prosecution contends that the fact that the Commodore was pulled over for this reason does not render the act of requiring the car to stop unlawful. It is said that there is no illegality in pulling a car over to conduct a licence check and the fact that the police officers may have had in mind that whilst exercising that power they would also make other enquiries does not call into question the lawfulness of their actions. It is said support for that proposition is found in R v Neal[7] where the Chief Justice said:
It is not improper for a police officer to make a request of a person in circumstances in which the duty to comply with the request will arise, and at the same time be alert to other proper policing objectives.
[7] (2017) 128 SASR 20
The factual situation in the matter of R v Neal was however somewhat different. In that case the police stopped the vehicle and conducted the licence check in circumstances where the vehicle was observed to travel faster than the 25 kilometre speed limit. The police said that they were not intending to issue a fine or prosecute the driver but rather wanted to educate the driver of the need to slow down in similar circumstances in the future. The licence check was conducted in the context of that activity.
I was also referred in argument to the decisions of Bain v Police[8] and Police v Moukachar[9]. In Bain the police noted that the registration of the vehicle had expired. They stopped the car for the purpose of dealing with the expired motor vehicle registration, an offence under the MVA. The licence check was conducted in the course of dealing with that issue. In Moukachar the vehicle was stopped after the applicant was seen to be driving with his arm extending outside his car window.
[8] (2011) 112 SASR 10
[9] (2010) 107 SASR 450
Accordingly, in each of these cases, there was a reason connected with the road rules that caused the police to stop the vehicle. That reason was not solely to conduct a licence check.
I refer to the decision of the Court of Criminal Appeal in Armstrong v R.[10] In particular I note the obiter comments of Chief Justice King relating to the stop and search of the motor vehicle in that matter with which Justice Cox agreed. Those comments were as follows:
I do not wish to make any criticism of the police. There may have been some reason for stopping the car which was not disclosed in the evidence. The basis upon which the car was stopped is important. If it was stopped for no better reason than the racial characteristics of the occupants of the car, or, the absence of an air of affluence about them or about the car, the action of the police would have to be characterised as high handed and arbitrary. Harassment on such grounds could not be tolerated.[11]
[10] (1989) 53 SASR 25
[11] TX 28
I also refer to the decision of the Court of Criminal Appeal in R v Kola.[12]Whilst that case dealt with random breath test stations (“BTS”) the observations of Chief Justice Doyle, with whom the other members of the Court agreed, are apposite:
These considerations lead me to the conclusion that it is not sufficient simply to inquire whether Alco-tests were in fact conducted at a BTS, if there is any challenge to the lawfulness of the establishment of a BTS. It is possible that the presence of an extraneous purpose will invalidate the establishment of the BTS.
I also accept the general submission by Mr Wells that s.47DA(1) is an intrusion on the common law rights of people to go about their lawful business undisturbed. Statutory powers that authorise intrusions upon such common law rights are to be read narrowly: (citations omitted)……….
For all those reasons it is not sufficient to say that the BTS was used to enable alcotests to be conducted, and accordingly was validly established. It is necessary to look more closely at the purpose in question.[13]
After considering the evidence in that case Chief Justice Doyle concluded:
For those reasons I am of the opinion that the BTS was validly established. It was established to enable Alco-tests to be conducted. It did not cease to be validly or lawfully established because Senior Sergeant Maher also intended that the BTS operate in a manner that would facilitate achieving the objects of ‘Operation Interest’. I emphasise that the establishment of the BTS was not a mere pretext upon which to stop vehicles for purposes other than conducting alcotests.[14]
[12] (2002) 83 SASR 477
[13] Paras [38] – [40]
[14] Para [43]
Both police officers in the present case agreed that they would not have pulled over the Commodore to ascertain the identity of the driver and conduct a licence check if they had not seen it parked adjacent to 71 Yorktown Road. There was nothing untoward about the Commodore, there was no traffic offence or infringement suspected; they did not know who the driver was. The primary motivation for stopping the Commodore was curiosity about whether the driver had any involvement with suspected drug activities at 71 Yorktown Road.
The connection between the applicant, the Commodore and 71 Yorktown Road was tenuous. This was a residential area. The applicant’s vehicle was not in the driveway of 71 Yorktown Road, rather it was parked around the corner in Butler Street. Whilst it was near 71 Yorktown Road equally it was near other residential addresses. The Commodore was not a vehicle of interest. The police did not observe the applicant enter or approach 71 Yorktown Road, nor did they see anyone from 71 Yorktown Road approach the Commodore or the applicant. There was no observation of any transaction or suspicious conduct. It should also be noted that the information that the police had concerning Ms Lamb and 71 Yorktown Road was not sufficient to undertake a search of either Ms Lamb or that property for offences under the CSA. At best it could be said that Ms Lamb was a person of interest and that 71 Yorktown Road was a property of interest. There was no clear indication of illicit drug activity.
In these circumstances it is hard to avoid the conclusion that the licence check was no more than a pretext upon which to stop the Commodore to give the police the opportunity to identify the driver of the vehicle, ascertain whether he had any connection with 71 Yorktown Road and to provide the opportunity to effect a search depending on what happened during that traffic stop. Both police officers agreed that, at the point they determined to stop the Commodore, they had no basis to suspect that a search of the applicant or his Commodore would yield evidence of offences under the CSA.
The power to stop a vehicle impinges upon fundamental concepts such as freedom of liberty, movement and privacy. It should not be undertaken without good reason to do so. Curiosity and a tenuous connection with a property of interest does not amount to good reason to stop a vehicle and conduct a licence check. This behaviour could well be characterised as “high handed and arbitrary”. There is, to my mind, a significant difference between this situation and a situation where the police stop a vehicle to deal with a traffic infringement whilst at the same time having another purpose in mind such as the possibility of detecting drug or property offences. It is my view that the decision to stop the Commodore was for an extraneous purpose and therefore not lawful.
Was it lawful for the police to ask the questions?
As outlined above Senior Constable Armstrong asked a number of questions of the applicant concerning his movements that day as they walked towards the police car. Brevet Sergeant Sweetman also questioned the applicant about his connection with 71 Yorktown Road but the time at which he did so is not clear.
Defence contends that this questioning was a form of interrogation that was not incidental to dealing with a traffic matter; that the movements of the applicant were contained and curtailed by the police and that the questioning was not lawful. The prosecution on the other hand contends that police officers, like any other member of the community, are entitled to ask questions; that they do not need any statutory basis to do so and that the questions were not unlawful.

In Bain[15] the police check revealed that the applicant’s driver’s licence had expired and he was described as ‘drug user dependent’. Whilst the traffic infringement notice was being completed by one officer, the other police officer asked questions about drug use which ascertained that the driver was continuing to use drugs. This in turn gave rise to a suspicion that there might be material in the vehicle which could afford evidence of an offence against the CSA. The Court found that whilst there was no statutory provision which expressly authorised the asking of those questions, those questions were not unlawful. The police were entitled to ask those questions.
[15] Op. cit.
In Police v Moukachar[16] the respondent was stopped for a traffic infringement and the police were seeking to establish his identity. He did not have a drivers’ licence and so police requested that he provide some photo ID. He looked in his car and said he did not think that he had any. Police then asked him “what about in your bum bag”. After some questioning by police on this topic, the respondent was persuaded to open his bum bag which was observed to contain a very large amount of cash. Justice Vanstone found that a police officer is entitled to ask questions of an individual and does not need statutory authority to do so. There is however no obligation to answer those questions unless required by statute. The fact that a person is not obliged to answer questions does not make the questions unlawful. This position was reaffirmed by the Court of Criminal Appeal in R. v. Dam & Nguyen (Case stated on Questions of Law No.2 of 2015).[17]
[16] Op. cit.
[17] (2015) 123 SASR 511.
Leaving aside the legality of the traffic stop, the situation which occurred in the present case is very similar to Bain in that the police took the opportunity to ask questions about drug use having observed on the police data base that the applicant was a drug user and, in Brevet Sergeant Sweetman’s case, that he had recently had contact with police in connection with drug matters. They asked him questions. He answered those questions. There is no suggestion of misleading conduct by the police such as to indicate to the applicant that he was obliged to answer the questions. The applicant was at the time subject to police direction in the sense that he had been asked to go to the police car to participate in an identification process. There is however no evidence that would enable me to ascertain whether this created an impression in his mind that he was obliged to answer the questions.
Accordingly I do not think that the questions of themselves were inappropriate or unlawful.
Was there a reasonable suspicion for the purposes of the CSA?
A police officer has the authority to detain and search any vehicle if they “reasonably suspect” that in the vehicle there is any substance or equipment that would afford evidence of an offence against the CSA. The key issue in this case is whether the police had the requisite reasonable suspicion. This is a question of fact to be decided on the balance of probabilities.
Both counsel referred to the Court of Criminal Appeal decision in R v Nguyen[18] when discussing the concept of reasonable suspicion where it is said:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. New curiosity, speculation or “idle wondering” about the existence of the fact is not the same as suspicion that it exists.
Importantly, s.56(6) and s.52(9) of the Controlled Substances Act require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the Controlled Substances Act in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power of much of its utility, to demand material which supports the positive belief in the existence of the relevant facts (citations omitted)
[18] (2013) 117 SASR 432 at 437
Senior Constable Armstrong conducted both the search of the applicant and the search of his vehicle. His is therefore the relevant suspicion. He gave evidence that at the time they pulled over the Commodore he did not have any intention to search the applicant or the Commodore. He took the decision to search under s.52(9) of the CSA on the basis of information which caused him to reasonably suspect that either on the applicant, or in his vehicle, was a substance or equipment that would afford evidence of an offence against the CSA. He identified a number of factors as forming the basis for that suspicion. These were:[19]
·The proximity of the vehicle to a known drug target address;
·The applicant’s demeanour, his nervousness, lack of being able to follow a simple instruction to take his hands out of his pockets;
·The fact that the applicant was a known user of drugs;
·The fact that the applicant said he was somewhere else prior to the police stopping him and his evasiveness on that topic.
[19] TX 19
In my view, for the reasons outlined above, it was unlawful for the police to stop the applicant’s vehicle. Accordingly the bulk of the material relied upon to found the suspicion was unlawfully obtained and could not, in those circumstances, form the basis of a reasonable suspicion. Even if I were wrong about this, I do not think the factors identified singly or in combination are sufficient to found a reasonable suspicion.
The link with 71 Yorktown Road was, as I have said, tenuous. The link between drugs and 71 Yorktown Road was limited; it was an address of interest and no more. There was no suggestion that Senior Constable Armstrong was aware of any contact between the applicant and Ms Lamb at the time of his decision to search.
This is a similar factual situation to that which obtained in two of the Nguyen cases. In R v Nguyen[20] police were conducting surveillance on a home unit when the appellant’s vehicle pulled into the common driveway of the units. The vehicle had in the past been associated with drugs and was registered to the person who lived at the home unit under observation. In finding that the material did not support a reasonable suspicion for the purposes of a search under the CSA, the Court of Criminal Appeal said:[21]
We readily accept that at the time Constables Beatty and Koch saw the Laser on 30 July 2011, there was material on which they could reasonably have suspected that some persons who had an association with the Laser had committed offences against the CSA and that they were continuing to offend. However that material could not support a reasonable suspicion that all persons who had a connection, or associating, with the Laser were continuing to offend against the CSA. Nor did the material support a reasonable suspicion that there was evidence of offending against the CSA in the Laser at the point in time when the police saw an unidentified person drive it down Hawker Street at 7.30 pm on July 2011.
[20] (2013) 117 SASR 432.
[21] At page 437 - 8
In the later R v Nguyen[22] the Court of Criminal Appeal said that the search of a vehicle was not a lawful search under the CSA because there were no reasonable grounds to suspect that there were drugs in the vehicle. The suspicion in that case was based on two matters; first that the vehicle emerged from the driveway of a house associated with past drug offending and second because the vehicle had previously been searched and found to contain drugs.
[22] [2015] SASFC 7
Arguably there was more basis for suspicion in each of those cases than in the present. The vehicle in each of those cases had some prior association with drugs; one had a connection with the premises under surveillance and in the other the vehicle emerged from the driveway of the premises under surveillance. These features are absent in the present case.
I do not consider that the other factors add much weight to the suspicion. The applicant’s demeanour may be explained by the fact that he had been pulled over by police and was being asked to account for his whereabouts. Many law abiding members of the community might appear anxious in similar circumstances. Likewise different or odd behaviour such as an inability to follow directions does not necessarily indicate illegality.[23] Nor, of itself, does evasiveness.
[23] R v Marafiote (2014) 118 SASR 511 at 12-13
Likewise, the fact that the applicant may have been a drug user does not justify a search. Brevet Sergeant Sweetman gave evidence that there had been previous contact between the applicant and police in relation to other drug matters. This was not something that Senior Constable Armstrong gave evidence about. He did not make reference to any prior contact referring only to the fact that the applicant was known to use drugs. This information would not have come to light had the police not stopped the applicant in what I have found was an unlawful manner.
Finally I note that whilst Brevet Sergeant Sweetman suggested that the applicant’s demeanour indicated that he was drug affected, Senior Constable Armstrong did not form a similar view. I further note that he was not charged with driving under the influence, nor was this topic raised in the questioning of the applicant.
I consider that the state of mind of Senior Constable Armstrong at the time he determined to search the applicant and his vehicle was, at best, one of curiosity or speculation based upon limited information and “tenuous, albeit rational, connections”. It is my view that the factors identified, even in combination, do not provide a reasonable basis to suspect the possession of illicit drugs or evidence of an offence under the CSA sufficient to authorise the search of the applicant or his vehicle.
Should the evidence obtained in the course of the second search be excluded as tainted?
The second search, of the applicant’s home address, was conducted under a warrant issued under section 52 of the CSA (the warrant).[24]
[24] Exhibit VDP2
The evidence is that when Senior Constable Armstrong applied for the warrant he was relying upon the outcome of the search of the Commodore and that was the reason for his applying for the warrant.[25]
[25] TX 26-27
Defence say that, if the vehicle search is unlawful, then it follows that the information upon which the warrant was granted is based on “the fruit of the poisoned tree” and therefore the second search is unlawful.[26]
[26] Written submissions para 77
The prosecution says that the question as to whether the search of the applicant’s house was lawful is not answered by having regard to whether the prior search of his car was lawful. Rather the court should have regard to the terms of the statutory provision that authorised entry into the house.
Section 51(1) of the CSA allows an authorised officer to:
Enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened.
The prosecution contends that Senior Constable Armstrong was an authorised officer under s 51(1) of the CSA because he is a police officer. He had been issued with a valid warrant therefore s 52(1) of the CSA authorised his entry into the applicant’s house. In effect the contention is that the Court cannot go behind the warrant. The prosecution relies upon the decision of the Queensland Court of Appeal in R. v. Versac.[27]I do not however consider that this decision does support the proposition put forward by the prosecution. There was a challenge to the validity of warrant in Versac because it was based, at least in part, on evidence which had been excluded. The primary Judge held that, if a search warrant is based upon unobjectionable material, the fact that it might also be supported by inadmissible material does not render the search warrant or its results inadmissible. The Court of Appeal referred to that finding and said that it fell to the appellant, challenging the adequacy of the warrant, to establish any insufficient foundation. The Court of Appeal said further that:[28]
It is not necessary to determine the point reserved by Mr Martin – whether regard could legitimately be had to the excluded material in determining the validity of the warrant – because this challenge should be resolved against the appellant on the basis that he failed to discharge the burden he bore of establishing that the warrant lacked an adequate foundation. Not only was the sworn material not disclosed, but there was apparently no attempt made to place it before the Judge.
[27] [2011] QCA 318
[28] Para 33
It is implicit in the decision that it is possible to challenge a warrant on the basis that it lacked an adequate foundation.
Notwithstanding that the officer who issued the warrant would not have known that the search of the vehicle was to be declared unlawful, the evidence leads to a conclusion that the warrant was solely based upon evidence that I have determined was gathered unlawfully. The decision to grant the warrant is in my view “irrevocably tainted by the initial search”.[29] In those circumstances I accept the defence submission that the second search was also unlawful.
[29] R v Bainbridge [1999] NZCA 180 at [23]; R v Eggen & Eggen-Zeytoun [2016] SADC 26
The exercise of the discretion
Given this I must now consider my discretion to exclude the evidence obtained from the first and second searches in line with the principles articulated by the High Court in R v Ireland[30] and Bunning v Cross[31] and the Court of Criminal Appeal in this State in cases such as R v Nguyen[32], R v Rockford[33] and R v Golja[34].
[30] (1970) 126 CLR 321
[31] (1978) 141 CLR 54
[32] (2013) 117 SASR 432
[33] (2015) 122 SASR 391
[34] [2017] SASFC 61
Defence counsel says that the evidence sought to be excluded is the direct result of the unauthorised conduct. This was not, it is said, an isolated or merely accidental non-compliance with statutory safeguards. Defence say that the conduct was deliberate, wilfully blind and/or reckless and further there was evidence that this was a practice adopted by the two police officers on a number of occasions associated with the same premises.[35] It is said that this is a practice that requires correction.
[35] TX 38
The Prosecution, on the other hand, say that this is serious offending, the cogency of the evidence has not been affected and, if there was illegality, it was innocent illegality.
The discretion involves a difficult balancing act. In R v Ireland Barwick CJ said[36]:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
In Bunning v Cross Stephen and Aickin JJ, said that[37]
What Ireland involves is no simple question of ensuring fairness to an applicant but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the applicant. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the applicant being only one factor which, if present, will lay its part in the whole process of consideration.
The discretion has been the subject of consideration by the Court of Criminal Appeal in this State on numerous occasions. In R v. Rockford Stanley J said[38]:
In my view, while the considerations favouring the admission of the impugned evidence are strong, the considerations favouring the exclusion of that evidence are stronger.
The right of a citizen to be protected from unlawful search and entry is an important civil right in our society. As this court said in R v Nguyen, it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. From the moment of their entry onto the property the police were engaged in a search. Recourse to euphemisms by the police does not alter that fact. The erroneous views of Detectives Hanssen and Moore of the scope of their powers of entry represent a view which, if tolerated by the courts, is calculated to lead to wide-spread and arbitrary infringements on civil liberties. It is those limitations on police powers of search and entry which constitute a fundamental safeguard of those civil liberties (citations omitted)
[36] At page 335
[37] At page 74
[38] At page 401
In R. v Golja, Stanley J repeated his observations in Rockford and said[39]:
The discretion is enlivened by unlawful or improper police conduct. Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations. Those considerations focus on competing aspects of the public interest. While the court must be careful to protect the citizen from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power.
[39] At para 35
His Honour stated that had he been required to exercise the discretion afresh, he would not have excluded the evidence in that case because there was no “conscious impropriety” by the police, nor was it an instance of widespread misunderstanding by the police of the conditions governing the exercise of the search power as in Rockford. He went on to say that[40]
In addition to those factors, this case involved serious offending involving trafficking in methylamphetamine and the unlawful possession of approximately $23,000. There is a strong public interest in the detection and prosecution of such offending. Further, the offending in this case would have been in the category of unlawfully procured evidence relating to offending which had already occurred, rather than the category discussed in Ridgeway of offending which would never have occurred but for the unlawful conduct of the police. The factors favouring the exclusion of such evidence is not as strong in the former category as in the latter category.
The administration of justice would not have been demeaned in this case by the admission of the evidence procured by the search if the search had been unlawful.
[40] Paras 37 - 38

In the present case, the evidence obtained in both searches is highly cogent evidence of the commission of serious offences. There was a considerable quantity of methylamphetamine and cash located. Nothing the police did in either search affects the cogency of that evidence.
I accept that the unlawfulness by Senior Constable Armstrong and Brevet Sergeant Sweetman did not involve conscious impropriety however it involved a misunderstanding of the power to stop vehicles under the RTA. They did not turn their mind to whether it was appropriate to stop the Commodore for the sole purpose of identifying the driver in all of the circumstances. It seems from their evidence that this is a practice that they had engaged in on a significant number of prior occasions. There is no suggestion on the evidence that either police officer saw their conduct in stopping the Commodore as unusual or exceptional. Plainly however it involved a significant incursion into the civil liberties of the applicant. If the Courts were to condone such actions it would be calculated to lead to “wide-spread and arbitrary infringements on civil liberties”. Law abiding citizens of the community should not be at risk of their vehicles being stopped by police simply because they have been seen in the vicinity of a particular address. Such a risk would inevitably lower the police in the estimation of the public.
For these reasons I exercise the discretion to exclude the evidence obtained in the two searches and I uphold the applicant’s application under Rule 49.