R v Arthur
[2016] SADC 160
•20 December 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ARTHUR
[2016] SADC 160
Reasons for Decision of His Honour Judge Slattery
20 December 2016
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The accused seeks to exclude any evidence of a search of his motor vehicle made by Police officers. The accused attacks the credibility of the version of events given by the Police officers and that, as a result, the evidence of the search should be excluded.
Held:
Application dismissed.
The evidence given by the Police officers was credible, cogent and reliable.
Controlled Substances Act 1984 s 32(3), s 52(9)(b); District Court (Criminal) Rules Rule 49(1); Summary Offences Act (1953) s 68(1)(a)(ii) and (iii), referred to.
R v Rogers (2011) 109 SASR 307; George v Rockett (1990) 170 CLR 115; Hussien v Chon Fook Kam [1969] 3 All ER 1626, applied.
Wilson and Morrison v R (1994) 176 LSJS 435; Wendo v R (1963) 109 CLR 559, considered.
R v ARTHUR
[2016] SADC 160Voir dire Ruling: ARTHUR
Samual Justin Arthur is charged on Information dated 3 June 2016 with the following offences:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Samuel Justin Arthur on the 30th day of April 2015 at Fulham Gardens, trafficked in a controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA), knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Samuel Justin Arthur on the 30th day of April 2015 at Fulham Gardens, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Samuel Justin Arthur on the 30th day of April 2015 at Fulham Gardens, trafficked in a controlled drug, namely lysergamide, knowing or being reckless as to the fact the substance was a controlled drug.
Fourth Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Samuel Justin Arthur on the 30th day of April 2015 at Fulham Gardens, trafficked in a controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA), knowing or being reckless as to the fact the substance was a controlled drug.
Mr Arthur makes an application under Rule 49(1) of the District Court (Criminal) Rules which reads as follows:-[1]
[1] This R49 application was not given the seal of the Court in its Criminal Registry.
TO: The Director of Public Prosecutions (“DPP”)
Application
The Applicant SAMUEL JUSTIN ARTHUR seeks the following orders or directions:
1. That all evidence located as a result of the search of the applicant’s vehicle by officer Dunn be excluded.
Endorsements
Application made pursuant to rule 49(1)(e)(h) of the District Court Criminal Rules 2014
Grounds
The grounds relied upon are as follows:
1.1 Officer Dunn’s search of the vehicle was illegal.
The brief details of this matter are that at about 2:15am on 30 April 2015 police responded to a report of two persons loitering nearing a building site at Henley Beach. Nothing was found at the building site. Police then reconnoitred the surrounding area and in doing so observed Mr Arthur’s vehicle stationary but with the engine running in a nearby street. A police officer knocked on the driver’s side window of the vehicle and observed a black sunglasses case on the front passenger seat that contained a glass pipe and a small clear plastic bag containing a number of tablets.
The search of the sunglasses case revealed that it contained a glass pipe, a self-seal bag containing 0.40 grams of methylamphetamine, numerous empty self‑seal bags, a red straw, 30 ecstasy tablets weighing 6.49 grams, a yellow cloth and 10 lysergamide pods weighing 1.17 grams. The police also found $265 in cash and 2 mobile phones in the vehicle.
Under the authority of a warrant, police then searched the bedroom of Mr Arthur’s home at Fulham where they located a red tool box, the key to which was in the possession of Mr Arthur. That tool box contained $300 in cash, numerous empty self-seal bags, a capsule filler, two sets of scales, 128 ecstasy tablets (27.7 grams), a plastic pill crusher containing ecstasy powder (10.54 grams) and a bud head stripper. The police also found in the same bedroom 350 zip lock bags, many empty gel capsules and another mobile phone.
At the hearing before me on 4 November 2016, evidence was called from three police witnesses, Senior Constable Mark James Dunn, Constable Julianne Danielle Matthews and Senior Constable Richard James Miller. Mr Arthur also gave evidence. Both the prosecution and the defence filed a written outline of argument. The written submissions of Mr Arthur commence with a discussion about the requirement for a police officer having a reasonable suspicion before commencing a search of a vehicle under the Controlled Substances Act (SA). However, then in paragraph 3 of his submissions, Mr Arthur attacked the credit of the main investigating police officer who initiated the search of the vehicle which led to the arrest of Mr Arthur. This is because it is said that the sunglasses case allegedly seen open by Dunn on the passenger seat of the vehicle driven by Mr Arthur was closed and was secreted amongst other possessions. Therefore no suspicion of offending could arise because none could be detected. Mr Arthur says that on those grounds, there was no legal basis to search the applicant’s motor vehicle. Mr Arthur submitted that if that was the case, the search was unlawful and such unlawfulness could only be excluded in the exercise of the court’s discretion. Mr Arthur submitted that in light of the nature of the unlawfulness of the police conduct, the court should not exercise its discretion in favour of the admissibility of this evidence of the search.
As I have made plain the basis of this application, properly understood, is an attack upon the credibility of the police officers and the version of events given by them. In resolving that issue, it is necessary to canvas all of the evidence given by the police officers. It would then also be necessary to assess the evidence given by Mr Arthur. In undertaking that task, I have approached the matter with no predisposition one way or the other merely because the evidence is given by police officers. I will assess the credibility of their evidence on the same basis as I would assess the credibility of the evidence of Mr Arthur. This is appropriate because, as will become apparent below, the version of events given by Dunn is diametrically opposed to the version of events given by Mr Arthur. I remind myself that although witnesses were called to give evidence and were cross-examined, I need to take into account the whole of the evidence in making my decision in this matter. Merely because I prefer the evidence of one witness over another does not mean that, for example, the application should be granted or refused. I need to take into account the whole of the evidence before me. That is my approach in this matter. I therefore turn to the evidence given by the witnesses.
Senior Constable Mark James Dunn
Dunn gave evidence that at about 2:15am on 30 April 2015 he was on uniform duties with Matthews when they received information that two males had entered a building site on Lawrie Street Fulham. The information received was that those two persons were acting suspiciously and were possibly looking for things to steal.[2] Dunn and Matthews then attended that location and conducted a search where they found that the security fence around the building site had been moved[3] but they found no suspects at that time.[4]
[2] T4.20-28.
[3] T4.33-36.
[4] T5.1-2.
Dunn and Matthews then drove around the local area looking for a small vehicle; they had been informed by a member of the public that two people had left the area of the building site prior to them arriving. Those two persons were driving a small vehicle.[5] At that time, Matthews, a probationary Constable, was driving the police car and Dunn was sitting in the front passenger seat. After driving around the Fulham area, the police officers sighted a vehicle on Norfolk Avenue. That vehicle was stationary at the time but its headlights were on and fumes were detected coming from the exhaust pipe.[6] Although there was some variation of evidence on this topic, it became clear from the evidence of Mr Arthur that the engine of the vehicle was still operating and that explained the fumes coming out of the exhaust pipe.
[5] T5.4-7.
[6] T5.9-19.
Matthews drove the police vehicle up to and next to the vehicle in which the passenger was sitting. Dunn said that the police vehicle reached a position where the passenger side window of that vehicle was adjacent to and opposite the driver side window of the vehicle parked on the street.[7] Dunn said that the driver of the vehicle was to his left as he was sitting in the passenger seat of the police vehicle.[8] Dunn said that he observed a caucasian male in the driver’s seat who appeared to be on his mobile phone as there was a light illuminating his face from something being held in his hand.[9] That male person was looking down at his phone at the time.[10] The male person appeared to glance towards the police vehicle turning his head slightly to the right and looking out of the corner of his eye.[11] That was the only reaction of the driver, Mr Arthur, to the presence of a police car immediately next to his car.
[7] T5.24-27.
[8] T6.1-5.
[9] T6.17-20.
[10] T7.1.
[11] T7.4-12.
Dunn said that he did not see that male in the vehicle look to his left at any time.[12] This is in contradistinction to the evidence given by Mr Arthur.[13] Mr Arthur said that he sort of glanced over as the police car pulled into the street and when he did, he glanced to his left to make sure that everything was concealed because he knew there was a car coming. He was a drug user.
[12] T7.26.
[13] T8.24-27.
Dunn said that he then got out of the police vehicle to make enquiries of the male driver of this stationary car.[14] These enquiries were about the activities of the male in the car bearing in mind the complaint that the police had received from the member of the public about activity on the building site. Dunn said that he would have briefly lost eye contact with the figure of the male for a second or two when he was getting out of the vehicle and taking his seat belt off but he said that his focus was always directed towards the male[15] and the male remained on his mobile phone.[16]
[14] T7.28-29.
[15] T8.32-37.
[16] T9.2.
Dunn said that he then approached the car and when he did so he tapped on the driver’s side window to get Mr Arthur’s attention. He had his torch in his left hand and his intention was to make enquiries about the suspicious activity at the building site.[17] Dunn says that using the torch the light of which was spilling through the front of Mr Arthur’s car, he was able to view an open sunglasses case on the front passenger side seat of this vehicle. He said that he saw in that sunglass case what he believed to be a glass ice pipe and a small bag containing white tablets.[18] Dunn said that he was more likely to be holding his torch in his left hand[19] and was standing probably at about the 2 o’clock position from Mr Arthur as he sat in his car (at the 12 o’clock position).[20] Dunn said he was standing towards the rear vision mirror on the driver’s side.[21] He was holding the torch as if in a dagger hold and tapping on the closed window with his right hand.
[17] T9.4-7.
[18] T9.18-21.
[19] T9.30-31.
[20] T9.36-37.
[21] T10.6.
Dunn said that Mr Arthur then wound down his window after the tapping.[22] Dunn said that the sunglasses case was open with the cover at approximately a 90 degree angle to the horizontal.[23] Dunn said that the glasses case was open enough for him to see the pipe and the small resealable bag of tablets.[24] He also said that the round ball at the end of the pipe was sticking out of the sunglasses case.[25] He said that he could see a small resealable bag which contained a number of white tablets[26] and that the bag had some writing on it.[27] Dunn said that he could not read the handwriting from his position. Later he discovered that the bag had the number 30 handwritten on it.[28]
[22] T10.35-37.
[23] T11.19.
[24] T12.2-3.
[25] T12.12-13.
[26] T12.15.
[27] T12.17-19.
[28] T12.31.
Having made these observations, Dunn formed the suspicion that the pipe was for smoking controlled substances[29] and the tablets were potentially ecstasy.[30] He did not observe Mr Arthur touch what was on the passenger seat at any stage.[31] When he told Mr Arthur that the police were investigating suspicious activity, Mr Arthur told him he was going fishing.[32]
[29] T13.8.
[30] T13.21-25.
[31] T13.36.
[32] T14.2.
Dunn said that during this conversation, Matthews had remained in the police car because she was conducting checks on the vehicle.[33] Dunn said that registration checks are usual police procedure.[34] These things were all happening at about the same time.
[33] T14.12-14.
[34] T14.27.
As a result of observing the sunglasses case and its contents, Dunn asked Mr Arthur to get out of the car and explained to him what he had seen and told Mr Arthur that he was going to search the vehicle under the Controlled Substances Act.[35] Dunn gave evidence that Mr Arthur did not respond to what he said.[36] Dunn said that he would have informed Matthews at some point that he had sighted an ice pipe and what he suspected to be drugs in the vehicle[37] but he could not recall exactly when that would have been in the sequence of events.[38] I consider that this occurred when Matthews alighted from the police vehicle for the reason that I set out below.
[35] T15.6-10.
[36] T15.18.
[37] T15.28.
[38] T15.22-25.
Dunn then conducted a search of the sunglasses case. He said that he seized the sunglasses case and its content and he found that it also included another small bag which had a red straw with a crystalline substance in it; it also contained a small bag which contained seeds and another small bag which appeared to contain another crystalline substance.[39] The only other person who was present when he seized these items from the front passenger seat was Matthews but he cannot recall precisely where she was at the time.[40] On taking the sunglasses case from the car, Dunn said that he placed it on the bonnet of the car and then removed the items from the case. He took a photograph of those items. That photograph forms Appendix A to his statement which is in evidence before me.[41] Dunn said that the photograph in evidence shows the manner in which the sunglasses case was found to be in an open position[42] and that after the photograph was taken, Senior Constable Miller joined them and conducted another search of the vehicle. No other items were found but Mr Arthur was placed under arrest.[43]
[39] T15.36-T16.4.
[40] T16.20-25.
[41] T16.32-T17.5.
[42] T17.24-25.
[43] T18.21-25.
Dunn said that when searched the vehicle there were also two fishing rods there but nothing else associated with fishing such as a tackle box or bait.[44]
[44] T19.8-17.
In cross-examination, Dunn said that he would estimate the distance between the police vehicle to Mr Arthur’s car would have been about 1 metre[45] and that when he first saw into Mr Arthur’s vehicle, he could see no other items on the passenger seat apart from the sunglasses case.[46] This is contrary to the evidence given by Mr Arthur[47] who said that he could remember having a jumper, a beanie, some shoes and a phone charger all on the front passenger seat at the time. He said that it was July and he would have had a warm jumper with him. He said the other things on the seat were his wallet, his smokes, phones and the glasses case. For reasons which I set out below, I do not accept this evidence of Mr Arthur. Dunn said that when he saw it, the sunglasses case was sitting in the middle of the seat[48] but was horizontally across the seat and almost perpendicular to the direction of travel of the car with the ball end of the pipe and the small bag of tablets at the end towards him.[49] He confirmed that it was in that position so that he was looking down through the line of the open lid of the case.[50] He also observed the fishing rods sticking out of the rear window of the car.[51]
[45] T20.3.
[46] T25.5.
[47] T62.19-22.
[48] T26.33.
[49] T27.10-14.
[50] T27.29-31.
[51] T25.21-22.
Dunn said that he asked Mr Arthur to get out of the motor vehicle.[52] Probationary Constable Matthews said that she also asked Mr Arthur to get out of the vehicle.[53] Dunn disagreed with the cross-examination of Ms Mansfield that he first went to the back of the car and opened the boot.[54] In light of all of the evidence in the matter, I think that is unlikely.
[52] T32-T33.
[53] Compare Dunn at T33.19-22 and Matthews at T51.18.
[54] T35.28.
Constable Julieanne Danielle Matthews
Matthews also gave evidence. At the time she was a Probationary Constable stationed at the Henley Beach police station.[55] She said that she also saw the car parked with its tail lights on and it looked like the engine of the car was running because fumes were coming out of the exhaust system. She said she could also identify that a person was sitting in the driver’s seat.[56]
[55] T38.10.
[56] T39.
Matthews said that she was driving the police vehicle and she brought that vehicle to a halt next to the car sitting on the side of the road in which Mr Arthur was sitting. She said that she saw Mr Arthur and he appeared to be on his mobile phone. This was because there was an illumination of his face which she assumed was from the effect of the mobile phone.[57] She also does not remember Mr Arthur making any eye contact with police officers notwithstanding that they had pulled up in a car next to him. She said that it seemed to her that Mr Arthur had not seen them at all.[58] She did not see Mr Arthur react in any way[59] which she would normally expect from a person in the position of Mr Arthur.[60] The clear impression that I got from the evidence of Matthews was this lack of reaction by the driver was at best a little peculiar and perhaps to some extent, contrived.
[57] T40.28-31.
[58] T41.5-9.
[59] T43.22.
[60] T43.26-27.
Matthews said that after she pulled the police vehicle up next to the Mr Arthur’s vehicle, she put the police flashing lights on to get his attention.[61] These were the flashing blue and red lights but she cannot now recall when she might have put the lights on. She thinks it was probably when she called over radio for a traffic stop, the police vehicle having stopped.[62] She could not recall if she put the lights on before or after Dunn exited the vehicle but she can recall putting a flood light on the left hand side of the vehicle. In my view, the preponderance of likelihood is that Matthews did not operate the red and blue flashing lights on the police vehicle until immediately before she exited that vehicle and after she had made the enquiries about the vehicle driven by Mr Arthur. I also consider that the preponderance of likelihood is that she also did not operate any flood light on the left hand side of the vehicle until about that time. This is because in cross-examination, Matthews agreed that when she got out of the vehicle, the lights were operating.[63] All she can recall about the flood light is that it was on for some time. That is not inconsistent with the version given by Dunn who did not give any evidence about the flood light. Matthews has a clear memory that she recalled a neighbour (affected by the flood light) looking out of a window[64] and she thought that this flood light was illuminating the inside of Mr Arthur’s vehicle.[65]
[61] T41.12-13.
[62] T42.1-5.
[63] T47.20-23.
[64] T48.4-8.
[65] T50.12.
I have formed the view that I have about Matthews’ evidence because she was the police Constable driving the vehicle and her duty was to make the police call over the radio and to arrange for police support. It was only then that she exited the police vehicle and she recalled speaking to Arthur who was sitting in the driver’s vehicle. She can recall Dunn exiting the police vehicle before her[66] but she believed that this was seconds earlier than her.[67] I think this is unlikely. I think the more likely scenario and I find, is that Dunn exited the vehicle whilst Matthews was making registration enquiries, reporting the position of their vehicle and was calling for a traffic stop. I consider that the greater likelihood is that this took longer than the mere seconds that Matthews estimated.
[66] T44.12-13.
[67] T44.16.
Matthews thought that she went over to the vehicle and asked Mr Arthur for his driver’s licence whilst he was sitting in the driver’s seat.[68] This is in contradistinction to the evidence given by Dunn who said that he asked Mr Arthur to get out of the vehicle. Matthews said that Mr Arthur told him that he was going fishing at Trimmer Parade[69] but she did not see anything on the front passenger seat. She does not think anything of that; she said that she was looking at Mr Arthur when she was talking to him[70] and this is standard procedure. She was keeping an eye on Mr Arthur whilst Dunn was occupied elsewhere.
[68] T44.19-23.
[69] T44.35-36.
[70] T45.2-4.
Matthews does not recall when she became aware of Dunn’s observations of something on the front passenger seat of Mr Arthur’s car. She can say that from her notes, she knows that the contents of the open sunglasses case were located by Dunn on the front passenger seat.[71] These notes reflect the fact that she was told by Dunn that the contents of the sunglasses case were located by him on the front passenger seat after he had seen them. I consider this is important corroborative evidence given by Matthews that Dunn was telling her of what he had seen of the contents of the sunglasses case. The greater likelihood is that he did this after she got out of the police car.
[71] T45.12-T46.13.
Matthews said it was then her understanding that the vehicle search was conducted under the Controlled Substances Act.[72] She said that she was not involved in the search of the vehicle but was involved in a conversation with Mr Arthur as part of the usual police procedure. She did not see any drug paraphernalia because her whole focus was on Mr Arthur.[73] She could not recall hearing any conversations between Dunn and Mr Arthur.[74] I consider this to be both logical and likely; this is because when the conversation was occurring between Dunn and Mr Arthur, Matthews was more likely in the police vehicle making enquiries about Mr Arthur’s vehicle and also calling in a traffic stop. She would have been focusing on that task and would not necessarily, or at all, have heard the conversation between Dunn and Mr Arthur. Matthews recalls that she became aware of the existence of the ice pipe at least from the time when she was moving towards the back of the vehicle with Mr Arthur and that is how she knew the reason the search was being conducted. Logically, she must have been informed of this fact earlier and therefore her memory of the way in which the matter progressed is likely to be faulty to a degree but only in a very insignificant way. She would have been informed of this fact earlier because the suspicion about the identification of the drugs and paraphernalia was, I find, the reason why Mr Arthur was asked to step out of his car. Matthews thought that she was the officer who asked Mr Arthur to alight from his vehicle. I think the greater likelihood is that both Dunn and Matthews were making that request after Dunn had identified a reason to do so because he had reasonably formed the relevant suspicion.
[72] T46.32-34.
[73] T47-T48.24-27.
[74] T51.32.
Senior Constable Richard Miller
Miller also gave evidence. He said that when he arrived at the scene, there was a Holden Astra parked on the northern side of the roadway. Dunn and Matthews were speaking to Mr Arthur.[75] Dunn advised him that he had located drugs[76] and Miller was then shown the items that were laid out on the bonnet of the car.[77] Miller said that he then conducted a further search and seized a number of mobile phones.[78] He agreed that there were some other items in the car but he does not recall having to remove any items in order to conduct his search.[79] That evidence in my opinion is consistent with the evidence of Dunn about what was in the car. It is also relevant to the evidence of Mr Arthur [80] that there were other items in the car. There may have well been other items in the car but in my opinion that does not detract from the importance of Miller’s evidence that he could search the car without any need to remove items. There were not so many items in the car as to require him to remove items to be able to search the car. Miller can recall that the items of interest were on the car bonnet when he first arrived and that Dunn assisted him in the search.[81]
[75] T55.23-27.
[76] T55.3-5.
[77] T55.37-38.
[78] T56.4-8.
[79] T58.17-20.
[80] T62-T63.
[81] T58.34-T59.18.
I have now considered all of the evidence given by the police officers that I have canvassed above. The essential feature of that evidence is that Dunn was the police officer who was most actively involved in the apprehension of Mr Arthur. Dunn gave evidence that he saw the opened sunglasses case which contained what he believed to be a glass pipe and a small bag containing white tablets. At the time he was standing adjacent to the rear vision mirror on the driver’s side. He could describe in detail the placement of the sunglasses case on the front passenger seat of the vehicle. He could see inside the sunglasses case and could identify that one of the bags inside the sunglasses case which contained white tablets had some handwriting on it which he later learned was the number 30. He could clearly describe what he saw in some detail. It was then that he formed the suspicion that the pipe was for smoking controlled substances and that the tablets were potentially ecstasy tablets.
There was a difference of evidence between Dunn and Matthews about who asked Mr Arthur to get out of the car. Matthews considered that she was the person who made that request to Mr Arthur to get out of the car. She did not make a note of this and neither for that matter did Dunn. However I do not think that this issue requires any form of final resolution in these reasons. That is because Matthews was not able to say when she first learnt of the reason for the search and that Dunn was the person who was actively involved in the search having made the discovery as he claimed. Therefore, Matthews’ whole focus was upon Mr Arthur. It is understandable that, in that context, her whole focus being upon Mr Arthur that some difference may arise as to who asked Mr Arthur to step outside the car. It is very likely that Dunn would have wished to conduct a search of the vehicle and so he was likely involved in asking Mr Arthur to step out of the car. I think the greater likelihood is that both Dunn and Matthews were present when Mr Arthur was asked to step outside of his car so that a search could be undertaken under the Controlled Substances Act. Importantly, it is very likely that at that time, Dunn told Matthews of what he had seen contained in the sunglasses case and in particular the pipe and the resulting suspicion that he had formed. There is no doubt that by the time that Matthews and Mr Arthur were moving towards the back of the vehicle that Matthews had a clear understanding of what was the reason for the search. The person undertaking the search was Dunn. He was later assisted in that role by Miller. I therefore think that little turns on the question of who asked Mr Arthur to get out of the motor vehicle. Nor do I think there is any significance in the fact that Dunn said that he could see no other items on the front passenger seat of Mr Arthur’s vehicle apart from the sunglasses case. There is no evidence as to the cleanliness and tidiness of the car or the manner in which some of those personal belongings of Mr Arthur may have been placed into the car. I consider that it is quite apparent on the evidence that notwithstanding the denials of Mr Arthur, the sunglasses case was on the front passenger seat, opened and in full view. None of the evidence of Mr Arthur causes me to form any different view about the evidence of the police officers. Mr Arthur would make an attack on the credit of those officers, especially Dunn and ask the court to do two things: prefer his version of the facts and subjugate the version of facts given by Dunn to that of Mr Arthur. This attack completely fails.
I have already made findings that I accept as credible the evidence of the police officers. I have dealt with the discrepancies in their evidence which are no more than would be expected. If there were not such discrepancies in the evidence I may have had a different view.
I have no doubts about the view I have formed of the evidence of Mr Arthur. I find that his version of events is almost wholly without merit or credibility. I am not prepared to accept his evidence where it is inconsistent with the evidence of Dunn or any other police officer. I turn now to those matters.
The evidence of Mr Arthur
Mr Arthur gave evidence that he had pulled his car over on the side of the road and the engine of his car was still running. He said that he was using his mobile phone to message a friend on Facebook. This was between 2:30 and 3:00am on that day. Mr Arthur said that he was asking his friend over the phone why he was up so late and whether his friend wanted to go fishing. He was on his way to West Lakes to fish for mulloway but had taken a detour to get some food and to kill some time in case his friend wanted to join him. It is not clear to me why he would need to kill time or why he would be waiting to see whether his friend would join him.[82] His intention was to go fishing nearby at Trimmer Parade at the end of West Lakes.[83]
[82] T61.
[83] T62.4-5.
In his car was the equipment he was bringing with him which were two fishing rods and his backpack. There was no tackle box or other paraphernalia associated with fishing as one might expect. [84] The car he was driving belonged to his younger sister. He said the belongings present in the car were “from memory” a jumper, beanie, shoes, phone charger, wallet, smokes, phone and glasses case. He says all of this was located on the front passenger seat.[85] This evidence is in direct contradistinction to the evidence given by Dunn.[86] That difference of the versions of these events is at the heart of the issues in this application.
[84] T62.10-11.
[85] T62.19-30.
[86] T25.5.
Mr Arthur was asked some questions about, for example the jumper.[87] Notwithstanding that he said he knew that his jumper was there, he could not initially recall exactly what sort of jumper it was but then had a refreshed memory and he described it as a warm jacket, like a warm woollen jacket zip up style.[88] However, he said that his backpack was in the rear seat of the car next to the fishing rods after having first thought that it was in the passenger seat at the front.[89] There is no explanation, for example, why he would put his backpack on the back seat and all of the loose items on the front seat. I think it is not necessary to speculate on that matter further however, the contents of the backpack become important in his matter.
[87] T62.24.
[88] T62.25-26.
[89] T69.29-30.
This is because Mr Arthur said that his sunglasses case was stored in his fishing backpack at home. He does this so that the sunglasses case which contain his drugs is stored out of the house and in a shed.[90] Initially in evidence, Mr Arthur said that when he went fishing, he always wanted to pack his store of drugs with him because he did not want to leave them at home; but in this case he kept them out of the bag and on the front passenger seat of the car.[91] He said he kept his sunglasses case in his fishing backpack[92] but that is inconsistent with the sunglasses case being on the front seat and out of his backpack. When challenged about that evidence, Mr Arthur said that he took the sunglasses case out of the backpack for no particular reason really[93] and that he did not want to take the sunglasses case fishing with him.[94] I found this evidence very unconvincing and, in my view, Mr Arthur was dissembling when he gave this evidence.
[90] T63.7-8.
[91] T62.34-37.
[92] T62.31.
[93] T63.20.
[94] T63.21.
Having said that he usually kept the sunglasses case in the backpack but did not on this occasion, he said he knew that the sunglasses case was closed and was covered with his personal items on the front seat of the car.[95] He said that he had a clear memory of this.[96] However he said that the sunglasses case was on the passenger seat underneath all of his possessions.[97] When a review is made of all of the possessions that were supposed to be situate on the front seat, there is a degree of unlikelihood about this evidence. Those possessions include everything from shoes to jumpers to phones, cigarettes and other matters. For example the greater likelihood is that if all of those possessions were present in the car, which I doubt, the shoes would likely have been placed in the foot well of the car and not on a seat. This likelihood arises because Mr Arthur was driving his sister’s motor vehicle and had to return it the next day.
[95] T63.33.
[96] T63.35.
[97] T69.34-35
Mr Arthur then said that he first became aware of the police presence as the police car pulled onto the street on which his car was parked. He said he noticed the lights on the police car briefly in his rear vision mirror. He said that he only saw a brief glimpse of that car because he was looking at his phone and really did not think anything of what he was seeing.[98] He said that he first became aware that the police were there when they shone the floodlight on him.[99] This would require a finding that nothing happened until the floodlight was operational on the police car. I think that is very unlikely. I do not accept that evidence of Mr Arthur.
[98] T64.32-36.
[99] T65.13-17.
This evidence is also inconsistent with the evidence of Matthews who said that Mr Arthur appeared so focussed on his phone that the police could not get his attention. She seemed a little surprised at this because she assumed that a driver in the position of Mr Arthur would at least look if the flashing blue and red lights were in operation. That evidence also explains why earlier Dunn got out of the police car, as Mr Arthur would not shift his gaze away from his phone. This fixed gaze makes it unlikely that he was only messaging on that phone at the time but I leave that matter to one side.
Mr Arthur also said that he first spoke to Officer Dunn when the police car pulled up alongside of him and he wound down his window and asked something along the lines of “anything I can help you with”?[100] He says that it was during this conversation that Dunn notified him that there were break-ins in the area and that the police were doing routine checks around the area for suspicious activity.[101] Mr Arthur says that this conversation took place while Dunn was still sitting in the police car. There is no evidence given by Dunn or Matthews that this was the case. Neither of them were asked about that sequence of events and it is a most unlikely proposition that in light of the facts that police were making enquiries that one of them would not have got out of the vehicle to at least look into the vehicle driven by Mr Arthur. This is because the vehicle in which he was sitting was a Holden Astra and the police had been told that the two persons had driven away from the building site in a small vehicle. I also do not accept this evidence of Mr Arthur because of its very high degree of unlikelihood. In my view, the greater likelihood is that Dunn exited the police vehicle and then stood in the area around the rear vision mirror on the driver’s side of Mr Arthur’s vehicle.
[100] T65.24-29.
[101] T65.32-35.
In terms of his dealing with the police, Mr Arthur disagreed that Dunn knocked on his window. I reject that evidence. I accept Dunn on this point because the version given by Dunn is inherently more likely. I do not accept that there was any interaction between open windows of cars. The procedure followed by Dunn was to alight from the police vehicle, approach the vehicle of interest and look into that vehicle bearing in mind that this was a police enquiry following a complaint by the public. I reject the evidence of Mr Arthur that he had an interaction with the police through the window of the police car. He could not recall Dunn having a torch and he denied that Dunn told him that he had identified the sunglasses case when he was standing next to the window having a conversation with him.
Mr Arthur said that he really could not remember what happened next but at some stage Dunn got out of the car and the conversation continued.[102] He was then asked if he remembers a torch and his answer was “not really” and all he could remember was a spotlight which was clear in his memory. He did not remember a torch.[103]
[102] T65.37.
[103] T66.7-9.
Mr Arthur then said that Dunn noticed his sister’s handbag in the back of the vehicle and then Dunn began to walk from the driver’s side car to the rear of the car and around the car.[104] I think that this in inherently unlikely. It is to be recalled that at the time that Dunn got out of the vehicle, Matthews was still in the vehicle. In the view that I have formed, the greater likelihood is that Dunn would have stayed standing where he was next to the driver’s side door until at least such time as Matthews alighted from the police vehicle.
[104] T66.13-18.
Mr Arthur said that there was then a discussion about the handbag. Mr Arthur said that Dunn asked him who owned the handbag and how he came to be in possession of it.[105] He said that Dunn then popped the boot of the car and asked what he was doing and why he was doing it.[106] However, I reject that evidence. I would not accept evidence that a police officer, not in the presence of the person who was occupying the car, would open the boot of the car. This is inherently dangerous, wrong practice and highly unlikely. I do not think that Mr Arthur was dissembling about this evidence because I think that he was quite wrong about it and that is not what occurred. Dunn gave no evidence of seeing or enquiring about any handbag or that he initially checked the boot. Matthews did not see Dunn checking the boot and Matthews gave no evidence of sighting a handbag.
[105] T66.22-23.
[106] T66.27-28.
Mr Arthur agreed that Matthews did not get out of the police car until he got out of his own car. He agreed that Dunn asked him to get out of the car shortly after he opened the boot and that was about when Matthews got out of the police car.[107] In my view, this evidence corroborates the evidence of Dunn that it was he who asked Mr Arthur to get out of the motor vehicle and this occurred at that time that Matthews alighted the police vehicle and came to the area where Mr Arthur was standing and took Mr Arthur to the back of the motor vehicle.
[107] T66.36-T67.1.
Mr Arthur then said that he asked Dunn why he was being searched and Dunn told him it was due to the handbag and that: “…he was suspicious of me…” and Mr Arthur then explained that it was his sister’s car. Mr Arthur said that Dunn then said to him: “do you mind getting out of the car while I go through it?”[108] I cannot accept that evidence. It is inherently unlikely and is contradictory of the evidence given by Matthews. Matthews knew that by the time that Mr Arthur moved to the back of the motor vehicle that the ice pipe had been spotted in the sunglasses case. I reject this evidence of Mr Arthur. Mr Arthur also said that when he alighted from his vehicle and stood with Matthews, it was only then that Dunn said that he had found something of interest on the front seat,[109] mentioning that he had found the sunglasses case and its content.[110]
[108] T67.4-11.
[109] T67.18-22.
[110] T67.38-T68.17.
In cross-examination, Mr Arthur stated that he was drug user and that he had ecstasy and methylamphetamine in the sunglasses case. He claimed that this was for personal use.[111] He was asked about his drug use. He said that he would have used ecstasy within two weeks of this incident.[112] He also initially said he would have used methylamphetamine within a few days of the incident.[113] Later he agreed that he would have used methylamphetamine earlier that evening.[114] He then admitted he had used methylamphetamine within a few hours of this incident[115] but he could not recall at what time.[116] He said that he was a regular user of methylamphetamine.[117] This evidence was initially vague. I do not accept all of this evidence of Mr Arthur. The clear impression that I gained was that he was a regular user of methylamphetamine, he had used methylamphetamine that evening and was most likely under the effect of that drug at the time that he was apprehended. I do not need to make any finding about that evidence. It is sufficient to say that Mr Arthur could not recall when he had used methylamphetamine earlier in that evening. He was a regular user of the drug.
[111] T70.9-18.
[112] T70.32.
[113] T70.37.
[114] T72.5.
[115] T72.13-15.
[116] T72.11.
[117] T71.16.
Mr Arthur was then asked how he paid for his drugs and said that he used money gained from a previous employment but he was no longer employed. He said that he was now unemployed but had been employed not too long before that date. However he could not remember exactly what date he had been employed[118] or much about his employment at all. I reject that evidence. There is no evidence to substantiate that the drugs that were in his possession were procured through money gained by him in his employment: he could not remember any of the details of that employment. He could recall that earlier that evening he was home until half an hour before the police approached him.[119] I think that is the case and I consider that in that period he was using methylamphetamine. He agreed that the drug kept him awake [120] and he then agreed that he would have been affected by methylamphetamine when the police attended his car.[121] He thought that he was slightly affected[122] by methylamphetamine but he disagreed that this may have affected his memory.[123] However he could not substantiate how he formed the view that the use of methylamphetamine did not affect his memory. When he was asked if he could remember details of the night he said his recollection was a bit blurry[124] but stated this was due to the length of time since the incident, not because he was affected (by illicit drugs). I do not accept this evidence.
[118] T71.22-24.
[119] T71.32-33.
[120] T72.36.
[121] T73.3.
[122] T73.15.
[123] T73.17.
[124] T73.31-32.
In response to a question from me about why he could not remember when or how much methylamphetamine he used despite claiming that it does not affect his memory, Mr Arthur said that he could not say and that unless he had a scale to use on the day and measured it out, he would not know at any time how much he used.[125] He then admitted that his use of methylamphetamine was likely to be an hour before he left the house because he was getting his fishing stuff ready so it would have been before then.[126] But that is despite the fact that the fishing gear was in the backpack and the two rods were in the car. This is inconsistent with his earlier evidence about the use of the backpack. When it was put to him that what he was really doing in his car was being out and about selling drugs, he denied that proposition.[127]
[125] T74.28-30.
[126] T75.2-5.
[127] T75.13-15; T75.24; T77.3.
Mr Arthur also agreed that he suffers from anxiety and that he was suffering from anxiety on the night that he was searched by the police.[128] He disagreed that anxiety affected his memory and that methylamphetamine covers up his anxiety and gives him more confidence.[129] He was asked whether he was nervous about what the police might find in his car and he agreed that it was in the back of his mind.
[128] T79.29-35.
[129] T80.3-16.
When asked about his fishing gear, he agreed that he did not have a tackle box with him but said that he kept all of his tackle in the backpack.[130] He was then asked how he was going to carry the fish that he caught, whether he had a fish box or an esky. He responded that he does not keep the fish, it’s only for sport.[131] I consider this very unlikely for a person such as Mr Arthur who was plainly unemployed at the time that these events took place but I need not make any finding on that issue.
[130] T74.14-15.
[131] T74.18.
When asked where he sourced the $265 found upon him, he said that his brother lent it to him. However, he had already told me that he had been employed and had some money over from his employment. It was therefore a little inconsistent for him to have taken a loan from his brother for the full amount of $265. He denied that the money was from drug dealing.[132]
[132] T78.5-7.
He was then asked why he had the drugs on him and he agreed that he did not want to keep the drugs at home because he lived with his family and did not want them to find them.[133]
[133] T76.4-8.
It was then put to him that there was a further 128 ecstasy tablets found at his home and he agreed with that proposition.[134] When asked why it was okay to leave 128 tablets at home but not the 30 that were in a separately held bag, he stated that those 128 tablets were not necessarily his and that they were found “apparently locked away so they could have been anyone’s.”[135] I am not prepared to accept this evidence. It lacks any credibility. He was then asked if the 128 tablets were found in a locked toolbox in his room and he said he thought so[136] but that was contrary to his later evidence.[137] I am not prepared to accept the evidence given by Mr Arthur that the 128 ecstasy tablets found at his home apparently locked away could have been “anyone’s”. I suspected that Mr Arthur was actively trying to mislead the court in giving that evidence however it is sufficient for me to find that this evidence must be rejected as lacking any credibility.
[134] T76.26.
[135] T76.29-31.
[136] T76.33.
[137] T86.
This adverse view of the evidence of Mr Arthur is only strengthened when it is known that when he was asked why the 30 tablets in a sunglasses case could not have been locked away in the toolbox he said that it might not necessarily be his toolbox. And he said that his tablets were stored in his fishing bag because of the pipe and that is the main thing he would not want anyone to find.[138] This evidence is contradicted by later evidence given by Mr Arthur.[139] I am not prepared to accept that evidence. I consider that it has no credibility and cannot be accepted by the court.
[138] T76.36-38.
[139] T86.6.
On the tablets that were in the sunglasses case, he agreed that there were 30 tablets there and that he had written the number 30 on the plastic bag.[140] He was then asked what was the point of writing 30 on the bag and he said that it was so that none went missing or anything like that.[141] He denied that this was because he was going to sell 30 pills to a buyer.[142] I am not prepared to accept that evidence. It lacks all credibility and borders on specious. In answer to a question from me he said that he wrote 30 on the bag so that he could check back at a later time and know that no one had taken any of the tablets or he had not lost any.[143] When asked who was going to take the tablets he said that he lived with four other people and he goes fishing with other people.[144] He was then asked whether he thought that his brothers or sisters would steal his drugs and he said he would not want his mother to catch him out.[145] He was asked whether he thought his mother might steal his drugs and he said she would “not steal them but would confiscate them.”[146] He was then asked again about why he did not take the other 128 tablets with him and he again denied knowing anything about them as they were not in his fishing stuff.[147]
[140] T78.11-16.
[141] T78.20.
[142] T78.23.
[143] T79.2-3.
[144] T79.5-6.
[145] T79.9.
[146] T79.12.
[147] T79.26-27.
He was later asked further about the red toolbox found in his room. Mr Arthur eventually agreed that the red toolbox found in the bedroom was his.[148] He initially attempted to avoid any question about whether the red toolbox was in his room.[149] This was despite previously stating that he knew nothing about the tablets in the red toolbox.[150] He was asked again whether the 128 ecstasy tablets in the toolbox were his. He said “I guess you can say partly, yeah, they were”.[151] This is in direct contradiction of the earlier evidence given by Mr Arthur that he did not know who was the owner of the ecstasy tablets. He was then asked about the $300 cash in the toolbox and he said, again in contradiction of earlier evidence, that the money partly at least belonged to him.[152] He was then asked what he meant by partly and he said “well, a percentage of it”.[153] He said the same about the empty pre-seal bags, the capsule filler, the set of scales and the plastic pill crusher. He said that they were all partly owned by him.[154] I do not accept any of that evidence. It is entirely without any credibility. I also refer to Mr Arthur’s earlier evidence that he did not know how much methylamphetamine he had used because he had no way to measure it out. That evidence is contradicted by the finding of the set of scales in the red toolbox.
[148] T85.17.
[149] T85.19-36.
[150] T78.26-27.
[151] T86.6.
[152] T86.9.
[153] T86.11.
[154] T86.12-24.
He was then asked whether the 30 tablets in his possession were taken from the locked toolbox and he said that they were not taken on that night but previously to that and they were part of things that came into his possession.[155] This evidence is contradictory of other evidence given by Mr Arthur.[156] He earlier used the expression that the 30 tablets “came into mine or whoever’s possession”. When asked by me to explain what is meant by the expression “whoever” he said “well just whoever, like whoever as soon as they were in my hands they were split up and I took those”.[157] This evidence contradicts earlier evidence given by him where he disclaimed any knowledge of the 128 tablets but he is now saying that the 30 tablets came out of at least a batch of 158 tablets.
[155] T86.28-32.
[156] T76.
[157] T86.35-36.
Mr Arthur was then asked whether the tablets were for other people. He said “in a way I guess you could say yeah; yeah sort of. It is sort of hard to explain it I guess”.[158] He tried to then suggest that the drugs were for his friendship group and that he was holding them for a friendship group.[159] He was then asked if the members of that friendship group were giving him money to purchase the drugs and he replied “not yet. No”.[160] He further dissembled. He said that nothing was organised (about the friendship group). It was not a sure thing (whether anyone would pay him for the drugs) and it was purely a friendship group thing.[161] He was then asked again whether the friendship group would give him money for the drugs and his reply was “not necessarily, I might have been generous but I was the person who happened to have them”.[162] I reject this evidence as being without any credibility.
[158] T87.3-4.
[159] T87.6-8.
[160] T87.10.
[161] T87.12-14.
[162] T87.16-18.
Mr Arthur was found to be in possession of $265 which he said was money taken on loan from his brother. I asked him how as an unemployed person he needed to borrow that money from his brother and yet he could be so generous with his friends in distributing ecstasy tablets to them. He then claimed to have some money in the bank but that was inconsistent with his suggestion that the $265 was an amount that he had to borrow from his brother. He tried to explain that he borrowed money because he had purchased the ecstasy tablets and he was therefore out of money. This is so inherently improbable that it does not deserve further consideration. He said that the $300 cash came from the last of his money and not from drug sales. I reject that evidence.
In the end I find that the evidence given by Mr Arthur on these and every other topic is so inherently improbable that it cannot be accepted. On many occasions Mr Arthur dissembled, on other occasions the evidence he gave was lacking in any credibility and on other occasions, I could not accept any part of his evidence. In my view, because it had no credibility, his evidence would not on any basis be preferred to the evidence of the police officers. I found the police officers to have given their evidence in a frank and forthright manner and their evidence I find was credible, cogent and reliable. There were differences of versions between them which I have assessed earlier in these reasons. None of those differences disturb the findings that I have made.
I consider that the search was lawful. I accept the submissions of the prosecution that a police officer has authority to search a vehicle if that police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against the Controlled Substances Act was to be found in that vehicle.[163] The meaning of the term “reasonably suspect” is now well known. I refer to the very well-known discussion of Duggan J in R v Rogers[164] at [18]-[21]. His Honour referred to the High Court decision in George v Rockett[165] and then to Hussien v Chon Fook Kam[166] all of which are now very well understood.[167]
[163] Controlled Substances Act 1984 s 52(9)(b).
[164] (2011) 109 SASR 307.
[165] (1990) 170 CLR 115.
[166] [1969] 3 All ER 1626.
[167] Wendo v R (1963) 109 CLR 559.
I also accept that a police officer has the authority to search a vehicle when that police officer has a reasonable cause to suspect there is an object within that vehicle, possession of which constitutes an offence or evidence of the commission of an indictable offence.[168] The search powers under the Controlled Substances Act and Summary Offences Act operate concurrently. Following the decision of King CJ in Wilson and Morrison v R[169] it is clear that what amounts to a reasonable cause to suspect is a relatively low standard.
[168] Summary Offences Act (1953) s 68(1)(a)(ii) and (iii).
[169] (1994) 176 LSJS 435.
Having regard to the above discussion, I accept the evidence of Constable Dunn that by the use of his police torch shining into the vehicle and before the flood light was operated by Matthews, he observed a black sunglasses case on the front passenger seat of the vehicle. Sticking out from the sunglasses case was what he believed to be a glass pipe as well as a small self-seal plastic bag containing a number of small tablets.
I therefore accept that Dunn had authority to search Mr Arthur’s vehicle because he reasonably suspected that within the vehicle was a substance and equipment that would afford evidence of an offence against the Controlled Substances Act.
And later to be found within the same sunglasses case was 30 tablets in a self-seal bag which were the drug MDMA. I also accept the evidence of Officer Dunn that he informed Mr Arthur that he observed the ice pipe and the tablets within the vehicle and for that reason he would be searching the vehicle under the Controlled Substances Act. In light of these findings, it is not necessary that I discuss the public policy discretion.
For all of these reasons, the application under Rule 49 to exclude the evidence of the search fails and is dismissed.
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