R v As and Raynor - [2023] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AS AND RAYNOR
[2023] SADC 60
Reasons for Ruling of his Honour Judge Handshin
17 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Application to exclude evidence obtained during the search of a vehicle. On 1 January 2021, police on mobile uniform patrol began following a van being driven by the accused, AS, in Campbelltown. The van pulled over in the vicinity of, but on a different street to, an address known to police to be associated with drug offending. Neither the van, nor the accused, had any identifiable association with the address. The accused was never seen to act in a manner manifesting an intention to attend upon the address. The van the accused was driving was registered to another person and had a recorded address in Morphett Vale. After the van stopped, police conducted an identification check.
The identification check revealed no issues with AS’ licence and he had provided accurate information to the police about the ownership of the van. After completing the identification check, police examined intelligence holdings relating to the accused on the mobile police system. Three intelligence holdings suggested the accused had a conviction for manufacturing a controlled drug in 2011; had been nominated as the cook of a large clandestine laboratory discovered by police in 2019; and had, in the weeks or months leading up to December 2020, been conducting activities indicating some involvement with manufacturing methamphetamine. There was no information to suggest that the accused would be in the possession of methamphetamine on 1 January 2021 nor that he used vehicles as a means of conveying illicit substances. Police searched the car pursuant to s 52(9) of the Controlled Substances Act 1984 (SA) on the basis of a suspicion that there would be methamphetamine in the vehicle having regard to the proximity of the van to the “drug” address; the fact that the accused was the sole occupant of a van registered to another person and which had a recorded address some distance from Campbelltown; that the accused was sweating and unable to provide the street number of a friend's house he said he was intending to visit; and based on the intelligence holdings.
Held: Although the searching officer genuinely suspected that a search of the van would uncover methamphetamine, that suspicion was not reasonably held. On the information available to the searching officer, there was no known association between the accused or the van and the “drug” address. The physical proximity of the van to the address was, in this case, of no moment given the circumstances in which the van came to stop, namely, having been followed by police in a marked patrol car for just under 1km. There was nothing about the accused’s presentation or the information he provided to police that could rationally arouse a suspicion that there were drugs in the vehicle and the information extracted from the intelligence holdings was insufficiently connected in time, place and circumstances to those presenting to police on 1 January to found a reasonable suspicion that there were drugs in the van. The search was unlawful and the evidence should be excluded in the exercise of the Bunning v Cross discretion.
Controlled Substances Act 1984 (SA) s 52(9); Summary Offences Act 1953 (SA) s 74AB, referred to.
R v Willingham [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; Zenuni v The King [2022] SASCA 106; Bae and Koo v The Queen [2020] SASCFC 7; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; George v Rockett (1990) 170 CLR 104; Prior v Mole (2017) 91 ALJR 441; McHugh v The Queen [2022] SASCA 5; R v Colenso [2016] SASCFC 128; Schatto v The King [2022] SASCA 129; R v Marafioti (2014) 118 SASR 511; R v Nguyen (2015) 248 A Crim R 398; Bunning v Cross (1978) 141 CLR 54; R v Armistead [2019] SASCFC 85; Kadir v The Queen (2020) 267 CLR 109; R v Golja [2017] SASCFC 61; Ridgeway v The Queen (1995) 184 CLR 19; Rockford v The Queen (2015) 122 SASR 391; Pollard v The Queen (1992) 176 CLR 177, considered.

R v AS AND RAYNOR
[2023] SADC 60
Criminal Jurisdiction

The defendants, AS and Alison Joy Raynor (Raynor), are jointly charged on an Information dated 6 May 2022 with one count of trafficking a controlled drug, namely, methamphetamine; one count of possessing a commercial quantity of a controlled precursor, namely, pseudoephedrine and one count of aggravated possessing a firearm without a licence (counts 2, 3 and 4). The accused AS is separately charged with a further count of trafficking a controlled drug (count 1).
The drug trafficking charges arise out of the discovery of parcels of methamphetamine during two discrete, but connected, searches carried out by police. The first was a search of a van being driven by AS on 1 January 2021, as a result of which police located 13.6g of powder containing 9.75g of methamphetamine.[1] This is the methamphetamine the subject of count 1 on the Information of 6 May 2022.
[1] The evidence obtained during the search of the van is summarised in the affidavit of Mitchell Foster dated 11 May 2022 at [11]-[14] and [25]. It was agreed between the parties that I was to have regard to these paragraphs in this affidavit.
The second was a search conducted on the morning of 2 January 2021 at AS’ residence at Lockleys, where the defendant Raynor was present upon police attendance. In the course of the second search, police located 110.7g of methamphetamine (count 2), 1kg of pseudoephedrine (count 3) and an airsoft imitation handgun chambered to fire 6mm airsoft pellets (count 4).
The search of the van was conducted pursuant to s 52(9) of the Controlled Substances Act 1984 (SA) (Controlled Substances Act) by a Constable Foster, who gave evidence before me that he carried out the search because he suspected there was methamphetamine within the van.
Section 52(9) of the Controlled Substances Act provides:
(9)If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)     require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)     detain and search the vehicle, vessel or aircraft; and
(c)     seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
On 4 May 2022, and pursuant to Rule 49 of the District Court Criminal Rules 2013 (as they then were), AS filed an application seeking the exclusion of evidence obtained as a result of the search of the van and the residence. The application of AS is supported by Raynor (together, the applicants), who, on 10 May 2023, filed an application pursuant to Rule 39 of the Joint Criminal Rules 2022 seeking the same orders. These reasons deal only with the search of the van.
The primary contention of the applicants is that the search of the van was unlawful because the suspicion held by Constable Foster was not reasonably held. Counsel contend that the information upon which Constable Foster relied in forming his suspicion was dated, imprecise, and could have given rise only to mere curiosity whether a controlled substance would be found inside the van.
The applicants submit that, if the search was unlawful, the evidence obtained in consequence of the search should be excluded in the exercise of the “public policy” discretion.
Resolution of the application turns on three issues:
First, did Constable Foster suspect that a search of the van might uncover the presence of methamphetamine? Although Constable Foster’s credibility was challenged on the application in other respects, there was no targeted attack on his evidence that he genuinely suspected that a search of the van might afford evidence of the commission of an offence against the Controlled Substances Act.
Secondly, was the suspicion subjectively held by Constable Foster, reasonably held? The determination of this issue requires the Court to put itself in the position of Constable Foster, with the knowledge he had at the time of the search, and ask whether, in those circumstances, a reasonable person in possession of the information would have entertained the same suspicion.
Thirdly, if the search was unlawful, should the evidence be excluded in the exercise of the public policy discretion?
For reasons I will expand upon, I resolve these questions as follows:
First, I accept that Constable Foster genuinely suspected there was methamphetamine within the van notwithstanding what I will, in due course, identify as some matters impacting the reliability of his evidence. I accept Constable Foster was an honest witness doing his best to recall the process of reasoning which led him to conduct a search over two years ago. For this reason, I accept his evidence that he suspected that a search of the van might uncover the presence of methamphetamine.
Secondly, I find that based on the information actually available to and known by Constable Foster, his suspicion was not a reasonably held suspicion. I have concluded that the information available to Constable Foster rendered his suspicion that there were drugs in the van as at 1 January 2021 tenuous and characteristic of mere idle wondering. I find that Constable Foster may have had reason to be curious about the content of the van, but that a suspicion that there was methamphetamine in the van at the time of the search was fundamentally speculative and unreasonable.
Whilst the information upon which Constable Foster acted might have been sufficient to arouse a suspicion that, sometime before December 2020, AS was actively associated with or taking steps towards the manufacture of methamphetamine, I am unable to accept that the information available was sufficiently contemporaneous or specific to the circumstances in which AS was detected driving the van to have reasonably aroused a suspicion that, on 1 January 2021, there was methamphetamine in the van.
In my view, Constable Foster’s suspicion was not objectively reasonable. The search of the van was unlawful.
Thirdly, I am satisfied that, in the circumstances of this case, the public policy discretion should be exercised in favour of the exclusion of the evidence obtained as a result of the search of the van. I consider that the unlawfulness of the search was here borne out of a failure to appreciate the metes and bounds of the power conferred by s 52(9). Foster’s assessment of the circumstances represented a far too undemanding view as to what would suffice to effect a substantial intrusion upon a person’s right to be free from arbitrary search. It is necessary to exclude the evidence to ensure that the administration of criminal justice is not brought into disrepute by allowing the evidence to be deployed against the applicants notwithstanding it was obtained illegally.
The evidence
The prosecution called Senior Constable Wyman and Constable Foster on the voir dire. Counsel for AS challenged both the credibility and reliability of their evidence.
As at January 2021, Senior Constable Wyman (Wyman) was stationed at Norwood Patrols. He had been a police officer for around 16 years.
Constable Foster (Foster), who had been a police officer for around six years at that time, was also stationed at Norwood Patrols.
On 1 January 2021, Wyman was the front passenger in a marked police car being driven by Foster as they conducted uniform mobile patrols in the Campbelltown area. Both officers were fitted with a body worn video camera (BWV).
Foster was driving on Acacia Avenue North, Campbelltown, when he sighted a white van travelling north-east on Clairville Road. Foster decided to follow the vehicle.
Wyman first saw the van when Foster drew his attention to it as it turned onto Reserve Road, Campbelltown. Foster told Wyman that he was going to pull the van over.
The police car followed the van for just under one kilometre as it tracked towards 10 Teak Street which, as will become apparent, is an address that assumes some significance. By way of overview, 10 Teak Street was a residence that both Wyman and Foster understood to be associated with drug offending.
Foster had determined to pull the van over but, as events unfolded, it was ultimately not necessary for him to do so. As the van approached the intersection of Reserve Road and Teak Street, it pulled over to the left.
That is to say, the van never entered onto Teak Street; however it did stop adjacent to the side boundary of 10 Teak Street, which runs parallel to Reserve Road. The Reserve Road boundary of 10 Teak Street is demarcated by a galvanised fence that spans the length of the block. There is a pedestrian gate along the boundary that apparently provides access to the back yard of the property. There was no evidence as to whether that gate was locked or lockable.
Information concerning 10 Teak Street
At this point, it is convenient to say something more about the address of 10 Teak Street.
Both Foster and Wyman were aware that 10 Teak Street was a place of interest to police throughout 2020. According to Wyman, 10 Teak Street was an address “where numerous persons of interest were coming and going from and there was a lot of drug activity occurring…”. Wyman said that police would spend a lot of time in and around the area and “would almost default to that address if we weren’t assigned to any other taskings”.
Wyman and Foster had discussed the address from time to time in the latter part of 2020.
Foster gave evidence that he understood the address was occupied by two people who were known “drug persons of interest” to Eastern District Police, although neither had been arrested for drug dealing to Foster’s knowledge. Foster knew that others who frequented the address were involved in drug related offending.
Foster described two specific occurrences involving the address.
The first was sometime in 2020 when an officer with whom Foster was working issued a drug diversion notice for possession of a glass ice pipe to a person who had been seen in the front yard of the premises.
On another, undated, occasion in the “later months” of 2020, Foster stopped a motorcyclist who had also been seen in the front yard of the premises. He conducted a firearms prohibition order check on the motorcyclist. No illicit substances were uncovered in the course of that police stop.
I pause here to add that, as will be seen, at the time that Foster conducted a search of the van, he had no information to suggest that either the van or its driver had any known association with 10 Teak Street or its occupants; the van was never seen to enter Teak Street and the driver was not observed to approach the property or to otherwise act in a way manifesting an intention to enter onto the property.
The patrol car pulls in behind the van
As I have said, although Foster had announced his intention to stop the van, it was ultimately unnecessary for him to exercise any lawful authority to do so. After the van came to a stop, the patrol car drew in behind it and Foster activated the emergency lights for safety reasons. By the time the van pulled over, the marked patrol car had been following it for just under a kilometre.
Foster alighted the patrol car and approached the van. His intention was to conduct an identity check pursuant to s 74AB of the Summary Offences Act 1953 (SA).
I interpolate here that it was put to Foster in cross examination that from the moment he saw the van heading in the direction of Teak Street, he intended to conduct a search of it. That is, the defence hypothesis was that Foster was intending to “turn over” the van irrespective of what occurred thereafter. Foster rejected that proposition and in fact did not conduct a search of the van until after further information came to his attention.
When Foster approached the driver of the van, Wyman remained in the passenger seat of the police vehicle and, he said, conducted checks on the van via the police mobile information system, known as a Mobile Rugged Tablet (MRT). The MRT provides access to a number of electronic databases, including SHIELD intelligence holdings. The checks conducted by Wyman revealed that the van was registered to a person by the name of Adam Zanker. The registered address of the van was in Morphett Vale. There were no “red flags” associated with the vehicle or its details.
Whilst Wyman recalled conducting checks on the van after it had pulled over, it appears from the recording from Foster’s BWV (VDD7) that the vehicle checks were in fact conducted whilst the patrol car was following the van. The recording appears to capture the 30 seconds or so prior to the patrol car pulling up behind the van. In the footage, Wyman can be seen engaging with the MRT and Foster can be heard remarking “Morphett Vale? No no no, what the fuck are you doing around here mate”. This suggests that prior to the van stopping, Foster was aware the van was registered to an address in Morphett Vale. Wyman must have already ascertained the details of the registered owner and address of the van. Indeed, Foster’s evidence was that Wyman had conducted the checks as the patrol car travelled along Clairville Road. I will return to this aspect of the evidence later in these reasons.
Foster was cross examined about his comment to Wyman relating to the registered address of the van. He said that he was having a casual conversation with his partner and pointing out the sheer distance from Morphett Vale to Campbelltown. He said further that this was of interest to him and that he was surprised to see a vehicle registered to Morphett Vale in Campbelltown.
Interaction between Foster and AS
As noted above, Foster approached the van and engaged with the driver. He asked the driver to produce his driver’s licence. The driver complied. Foster asked if the driver was the registered owner of the vehicle. The driver said he was not; that the van belonged to his former boss. He correctly identified the registered owner of the van. Foster then asked what the driver was doing in the area, to which the driver responded that he was travelling to see a friend who lived further down the road. The driver was asked what the street number of his friend’s address was but said he did not know.
Foster accepted in cross examination that the driver of the van was co-operative throughout this interaction with him and that he observed nothing that gave rise to any suspicion that there were drugs in the van.
Having received the driver’s licence, which confirmed the driver was AS, Foster returned to the patrol car.
Wyman gave evidence that upon his return, Foster immediately advised Wyman of his suspicion that controlled substances were present in the van. In cross examination, Wyman was taken to Foster’s BWV (VDD7), which showed Foster returning to the patrol car with AS’s driver’s licence. It was put that the recording did not capture Foster immediately advising Wyman of his suspicions. So much may be accepted. However, after Foster returned to the patrol car with the licence and provided the details to Wyman, the BWV was deactivated at 5:27:58pm. VDD7 shows the BWV reactivated at 5:30:39pm. It is quite feasible that Foster informed Wyman of his suspicions in this intervening period of almost three minutes. In any event, nothing much turns on this line of questioning.
Wyman conducted a licence check which revealed no issues.

Foster accepted in cross examination that after the licence check had been conducted, his power pursuant to s 74AB of the Summary Offences Act was exhausted and there was technically no impediment to AS leaving. Nonetheless, Wyman thereafter commenced further checks on AS again using the MRT.
Foster’s evidence about the sequence of events after he obtained the driver’s licence generally accorded with Wyman’s evidence. Foster said that he took the driver’s licence back to Wyman who used the licence details to carry out further checks on the MRT. These checks revealed intelligence holdings relating to AS. Whilst Wyman was in charge of operating the MRT, Foster could see the displayed information and was in a position to read and review it.
Deactivation of Foster’s body worn camera
It is convenient at this point to address a discrete issue raised by counsel for AS that was said to reflect adversely on the credibility of Foster and to a lesser extent Wyman. As noted, both officers were fitted with BWV cameras. Portions of footage recording their interactions with AS were tendered on the voir dire (VDP6 and VDD7).
Foster’s footage in particular gave rise to a point of contention between the parties. Foster’s footage commences when the patrol car is following the path of the van. As Foster explained, once the cameras are switched to recording mode, the 30 seconds of observations captured by the camera preceding activation are also retained.
The footage shows Foster approaching the van and engaging with AS, whereupon he takes custody of AS’s driver’s licence before returning to the patrol car. A short time later, Foster deactivates the camera as I have previously said. The recording function was deactivated for just under three minutes before being re-activated as Foster commenced preparations for the search of the van.
Foster’s evidence was that in this three minute period the intelligence holdings were reviewed.
When pressed in cross examination to explain why he deactivated the camera, Foster provided two reasons: first, he was not, at that time, having an interaction with a member of the public. Secondly, he was conscious that he and Wyman were reviewing sensitive material on the MRT.
Counsel for AS was critical of Foster for deactivating the recording at this time. It was put that his conduct was contrary to a police General Order that prescribes the protocol for using body worn cameras.
It is true that the General Order on which Foster was cross examined requires officers to record in their notebooks why they have decided to deactivate their BWV. Foster did not make such a note. However, I do not consider there to be anything sinister in Foster’s deactivation of the recording. Indeed, the fact that he re-activated the recording upon re-approaching AS is consistent with the explanations he advanced for pausing the recording in the first place.
Although this may have been unnecessarily cautious, I do not consider it has any impact on the credibility of Foster or Wyman’s evidence.
Reviewing the MRT
Returning to the narrative following Foster’s return to the van with AS’s driver’s licence, Wyman said that upon investigating AS’s details on the MRT he observed a “large amount” of intelligence holdings that were, he said, “…very recent, in around December.” He said there were between four and seven intelligence holdings relating to AS during and immediately before December 2020 that related to AS’s involvement in “controlled substances and dealing and trafficking, as well as producing controlled substances”, in particular, “cooking methamphetamine”.
Foster gave evidence that whilst Wyman was navigating the MRT, he saw information indicating that AS was involved in obtaining false identification documents and attempting to source pseudoephedrine. He also noted information that AS was establishing a clandestine laboratory and had been involved in a large clandestine laboratory in 2019. Foster said that he reviewed five intelligence reports on the MRT and that, during their review of the information, he and Wyman discussed the content of the reports, the source evaluation appearing on the reports and the number of reports. Foster said he could differentiate one report from another by reference to the unique identifier assigned to an intelligence report.
Foster added that the MRT displayed that AS had “cautions” for “drug offending” and “may be armed”. He accepted, however, that these cautions could relate to historical events. In any event, I pause here to note that in VDP10, tendered by consent in circumstances I will explain, the “drug” related caution for AS did not suggest “drug offending” but only “drugs”.
Of course, this paraphrase of the information the officers observed via the MRT was simply that: a paraphrase. In order to properly understand the nature and extent of the information that was available to them, it is necessary to examine more closely the intelligence holdings that were accessible via the MRT.
The intelligence information – VDP2-VDP5
In their evidence in chief, a series of SHIELD intelligence reports were presented to Wyman and Foster and both were asked to confirm whether they had seen the information in those reports when Wyman was operating the MRT on 1 January 2021.
SHIELD intelligence reports generally, although not necessarily, comprise of information received by police from human sources. The recipient of the information, or an intelligence officer, is responsible for uploading the information to the SHIELD database and providing a “source evaluation”. The purpose of the “source evaluation” is to rate the perceived reliability and credibility of the information by reference to the known characteristics or history of the source. Relevantly, all of the information the subject of the current application had been catalogued as “B2” information, which is information considered to have come from a source that is “mostly reliable” and which is information said to be known personally to the source, but not to police.
I turn to the contents of the individual reports, noting that in summarising the information contained in those reports, where the words “redacted” appear, the redactions are on the face of the reports that were tendered and hence the information concealed by the redactions is unknown to me.
VDP2
The intelligence report VDP2 had a report date and time of December 2020. The calendar day on which the report was entered was redacted.
The relevant content of VDP2 may be summarised in this way:
·A “summary” of the information provided “[redacted] is assisting [AS] in setting up a clan lab”.
·The bottom portion of the first page of VDP2 contains a heading, “Intelligence / Street Check Report”. Beneath this heading, reference is made to the report time being “redacted/01/21”.
·The Intelligence / Street Check Report Narrative provides:
[Redacted] is assisting [AS] in setting up a clan lab. [Redacted] uses multiple mobile phones subscribed under false names. One of [redacted] current numbers is [redacted].
ASSESSMENT
[Redacted]
[Redacted]
[AS] is almost certainly [AS…] of [ redacted].
[AS] has history for manufacture controlled drug (methamphetamine from 2011…and was nominated as being the main cook behind the Scotia Street Croydon lab in 2019…
Wyman’s evidence in chief was that he viewed the information in VDP2 on the MRT on 1 January 2021. The presentation of the information was different to its documentary analogue, but the information, he said, was the “same”. Wyman said further that he would have had access to entries that are redacted on the documentary form of the report tendered on the application, but he gave no evidence about what that information was.
Wyman said that the report date and time of December 2020 was significant to him in that it indicated the information contained therein was “very recent”. However, in cross examination Wyman accepted that the intelligence information did not convey when it was that someone was assisting AS to set up a clan lab.
Foster too said that the information in VDP2 was seen by him on 1 January 2021, together with the report date and time. Again, he did not give evidence of the information behind any redaction. He considered the source evaluation to indicate that the source was reliable.
There was no clear evidence about the significance, if any, of the Intelligence / Street Check Report section of VDP2 recording a date of report of January 2021. It is not clear to me whether this indicates that the information contained under the heading “Intelligence / Street Check Report Narrative” was only compiled, and accessible, sometime in January 2021. I will return to this issue.
VDP3
The intelligence report VDP3 had a report date and time of December 2020. As with VDP2, the calendar day on which the report was entered was redacted.
The relevant content of VDP3 was:
·A “summary” of the information provided “[AS] is trying to source [redacted] for his lab”.
·Under the heading “Intelligence / Street Check Report Narrative”, the following information is set out:
[AS] is currently trying to source a large [redacted] for his lab.
ASSESSMENT
[AS] is almost certainly [AS]…of [redacted].
[AS] is recorded [sic] Shield as being suspected to be involved in the manufacture of controlled drugs…
Wyman said he viewed a version of the report VDP3 on 1 January 2021. In cross examination, Wyman accepted that the intelligence holdings did not indicate when the information that AS was trying to source something for his lab was received by police.
Foster gave evidence that he viewed the information contained in VDP3 on 1 January 2021.
VDP4
The intelligence report VDP4 had a report date and time that included December 2020. Again, the calendar day on which the report was entered was redacted.
VDP4 included the following:
·A “summary” of the information provided “[AS] is obtaining fake identifications”.
·Under the heading “Intelligence / Street Check Report Narrative”, the following information is set out:
[AS] is obtaining fake identifications.
ASSESSMENT
[AS] is almost certainly [AS]…of [redacted].
[AS] has history for manufacture controlled drug from 2011 and was nominated as being the main cook behind the Scotia St Croydon lab in 2019.
Wyman gave evidence that he viewed a form of VDP4 on 1 January 2021 and that he was familiar with the Scotia Street lab. He said that it had been reported in the media and within SAPOL systems. He understood that the Scotia Street lab was one of the biggest methylamphetamine seizures or labs in the State.
Wyman agreed in cross examination that the intelligence holdings said nothing about the time period to which the information was referable.
In his evidence in chief, Foster was taken to VDP4 and asked if he recalled reviewing the information in the report. He responded, without qualification, “yes”.
VDP5
The intelligence report VDP5 also had a report date and time of December 2020 with the calendar day on which the report was entered having been redacted. So far as presently relevant, VDP5 provided:
·A “summary” of the information provided “[AS’s] Pseudo supplier”.
·Under the heading “Intelligence / Street Check Report Narrative”, the following information is set out:
[AS] was getting Pseudo from [RL’s] old supplier.
ASSESSMENT
[AS] is almost certainly [AS]…of [redacted].
[AS] has history for manufacture controlled drug from 2011 and was nominated as being the main cook behind the Scotia St Croydon lab in 2019.
·Thereafter, much of the report is redacted.
Wyman gave evidence that he believed he viewed VDP5, or perhaps more accurately the information contained within it, on 1 January 2021.
VDP5 was not put to Foster in the course of his evidence in chief but he was cross examined on the report and acknowledged that the information in VDP5 was information he observed on the MRT on 1 January 2021.
VDP8
Somewhat curiously, Foster, but not Wyman, was shown a further report, which became VDP8, during his evidence in chief.
The intelligence report VDP8 also had a report date and time of December 2020 with the calendar day on which the report was entered having been redacted. So far as presently relevant, VDP8 provided:
·A “summary” of the information provided “[AS] and [redacted] are cooking meth”.
·Under the heading “Intelligence / Street Check Report Narrative”, the following information is set out:
[AS] and [redacted] are cooking meth. They are always trying to get pseudo.
ASSESSMENT
[AS] is almost certainly [AS]…of [redacted].
[AS] has history for manufacture controlled drug from 2011 and was nominated as being the main cook behind the Scotia St Croydon lab in 2019.
·Thereafter, much of the report is redacted.
Foster said he recalled reviewing the information in VDP8 on 1 January 2021 when checks on AS were being conducted via the MRT.
Currency of the information in the reports
After addressing the reports (save for VDP8) in his evidence in chief, Wyman gave the following evidence:
Q.Just to confirm, you have now been shown a series of intelligence reports; that's correct.
A.That's correct.
Q.You indicated that you believe that you viewed all of these intelligence reports on 1 January 2020 as you were conducting checks on Mr Spurling.
A.That's correct.
Q.Is it the case that all of the information contained in these intelligence reports was available to you when you conducted those checks and viewed these intelligence reports.
A.Yes.
Q.And is it the case that you viewed all of that information.
A.Yes, I did view, I just skim read certain parts of the information, but I did have access to all of that information.
Wyman said further that he relayed to Foster “all the information that I had received from the intelligence submissions”, after which Foster executed a search of the van. Wyman told Foster “that there was information that he, that [AS] was trying to source, source equipment to conduct a drug lab and that he may be – there was a possibility that he was in possession of drugs...From memory I told Foster that the information was very recent as well.”
Wyman agreed in cross examination that save for the references to AS’s history of manufacturing a controlled drug in 2011 and being the main cook behind the Scotia Street lab in 2019, the other intelligence information he accessed on 1 January 2021 contained no specifics in terms of dates.
In re-examination, Wyman said that he was of the view the information contained in VDP2-5 would likely have been acquired in the “weeks, months leading up to” December 2020.
Foster confirmed in cross examination that he recalled seeing five intelligence reports on the MRT. Foster’s evidence concerning the contemporaneity of the information in the reports was to the same general effect as that given by Wyman. His understanding was that the “report dates” indicated the dates the underlying information was received by police and uploaded to the SHIELD system.
The search of the van – observations of AS
Having reviewed the information on the MRT system, Foster intended to detain AS for the purpose of conducting a search of the van. He approached AS and advised him he was going to conduct a search under the Controlled Substances Act.
AS stood with Wyman when the search was being conducted.
Both Wyman and Foster gave evidence that AS was “sweating profusely” and abnormally relative to the weather. It was put by counsel for AS that it was no coincidence that both Wyman and Foster described AS’s presentation in this way when, according to counsel, AS could not be seen to be sweating on VDD7. It was suggested, in effect, that Wyman had borrowed this phrase from Foster’s affidavit in order to bolster or corroborate Foster’s observation.
I found this attack on the credibility of both Foster and Wyman to be unconvincing. I agree that, on reviewing the BWV footage, it was not obvious that AS was sweating heavily. However, it seemed to be common ground that 1 January was a warm day and the phrase that both officers used to describe AS’s presentation is hardly esoteric. Perhaps more importantly, neither Wyman nor Foster purported to link AS’s “sweatiness” with drug intoxication or nervousness and so, ultimately, the observation is rather anodyne in any event.
Summary of information upon which Foster apparently relied
As noted above, having reviewed the intelligence holdings, Foster determined to exercise the power reposed in police by s 52(9) of the ControlledSubstances Act and conduct a search of the van. He said he suspected that there may have been methamphetamine in the van based on the following:
·Information he read on the MRT, including the five intelligence documents.
·That he observed AS to be sweating profusely, which he considered to be quite unusual.
·The explanations AS gave for being in the area, namely that he was visiting a friend further down Reserve Road but was unable to recall the street number.
·That AS was the sole occupant of the vehicle.
·That the van was registered to someone else.
·The information he had about 10 Teak Street more generally.
·That the van had stopped in close proximity to a pedestrian access gate to 10 Teak Street.
The challenge to the credibility and reliability of Wyman and Foster
Before progressing further, it is necessary to deal with the challenge mounted by counsel for AS to the credibility of Wyman and Foster.
It was put to both officers that they had deliberately mislead the Court about the intelligence information that they accessed and considered prior to the search of the van.
The contention emerged in the following circumstances. As noted above, both Wyman and Foster gave evidence in chief and cross examination by reference to each of the intelligence reports VDP2, 3, 4, 5 and 8 (Foster only).[2]
[2] Noting that Foster said he reviewed five intelligence submissions which, by hypothesis, must include VDP5.
Their evidence was that the information in each of those reports was available to and reviewed by them prior to Foster executing the search. As I have remarked upon in the preceding section of these reasons, Foster summarised the basis for his suspicion as including the information derived from the intelligence reports.
At the conclusion of the first day of the voir dire, the matter was adjourned for some time due to the unavailability of counsel and later the Court. In the intervening period, those acting for AS issued a subpoena to the Commissioner for Police. As a result of that subpoena, an audit of the SHIELD intelligence system was conducted with a view to identifying which intelligence holdings Wyman had in fact accessed via the MRT on 1 January 2021.
The results of the audit, in summary form, indicate that the only intelligence submissions that Wyman accessed via the MRT on 1 January 2021 were VDP2, VDP3 and VDP8. It follows that, on the face of the audit, Wyman did not access VDP4 and VDP5 and Foster could not have taken the information contained in those intelligence holdings into account for the purpose of forming the suspicion required by s 52(9).
It is necessary to consider the discrepancy between the oral evidence and the audit logs in more detail.
Details of the SHIELD audit
Access to the SHIELD intelligence system requires the user to input a registered username and password. Audit logs record when and what information has been accessed by a person to whom a registered username is allocated. The audit data includes Shield Audit Log Viewer which has the capacity to show what a user of the system saw at the time they opened a particular record of information. The Shield Audit Log Viewer data was not tendered on the voir dire.
The audit information that was put before me was tendered by consent (VDP10) and discloses the following:
·At 5:27:56pm, Wyman accessed the “person record” for AS on the MRT. The information that would have been visible to Wyman upon opening the person record was:
o   Name.
o   Identifications.
o   Miscellaneous information including deceased notification.
o   Cautions, which in this case displayed “Drugs (DRU) x 2” and “May be armed (ARM) x 2”.
o   Flags, which in this case noted “Convictions of a Prescribed Kind”.
o   Physical description summary.
o   Associated addresses.
·At 5:29:21pm, Wyman opened intelligence submission VDP2 and shortly thereafter expanded the “Person” section on that report.
·At 5:29:33pm, Wyman opened intelligence submission VDP3 and at 5:29:41pm the “Intelligence / Street Check Report” section.
·At 5:29:59pm, Wyman opened intelligence submission VDP8 and at 5:30:32pm, Wyman opened the “Intelligence / Street Check Report” section of VDP8.

It follows from VDP10 that there is no audit log entry relating to VDP4 or VDP5. This suggests, and I find, that contrary to the evidence of Wyman and Foster, neither VDP4 nor VDP5 were in fact accessed by Wyman on 1 January 2021.
A number of additional questions emerge from VDP10. There is no reference in the log to Wyman having opened the “Intelligence / Street Check Report” section on VDP2. The log records specific activities taken by Wyman in relation to these sections of the reports marked VDP3 and VDP8. As noted earlier, this is the section of VDP2 that bears a report time and date of January 2021. It is most unclear to me whether the logs mean that Wyman did not access the information under that heading or whether that section of the report was even available as at 1 January 2021.
Wyman
When recalled to give further evidence in light of the audit logs, Wyman suggested that he may have still accessed the information recorded on VDP4 and VDP5 under the heading “Summary”, notwithstanding that he did not access the reports themselves. The content of VDP10 does not support this contention. To the contrary, VDP10 suggests that the only information that is available without opening separate pages or sections of a person’s record is that information appearing at item 103 of VDP10.
I have considerable reservations about the reliability of Wyman’s evidence that he could have seen the “summary” of VDP3 and VDP4 in those circumstances. This is particularly so given that Wyman did not apparently make any contemporaneous notes of the information he accessed and was purporting to recall information that he accessed more than 2 years ago. Further, and contrary to the prosecutor’s submission, I do not consider that Wyman’s evidence prior to the disclosure of the audit logs could reasonably be interpreted as conveying that he only observed a summary of VDP4 and VDP5.
It is possible that Wyman is correct and that a summary of information relating to an intelligence holding is visible without a user needing to open the intelligence submission itself. It may be that is a function of the MRT system that has been introduced in the last 2 years. I do not know. However, I am not prepared to accept Wyman’s evidence on this topic as reliable for the reasons I have given.
I add, however, that my reluctance to accept this aspect of Wyman’s evidence is of no real consequence. If the summary of VDP4 was visible to Wyman, it conveyed no more than that AS was, at some unidentified time, obtaining fake identification. Furthermore, the information contained under the “Intelligence / Street Check Report” section of the document added nothing to the information available from VDP8.
Equally, the summary in VDP5 “[AS’s] Pseudo supplier” is elliptical and added nothing material to the information available from VDP2, 3 and 8. As with VDP4, the information contained under the “Intelligence / Street Check Report” section of the intelligence added nothing to the content of VDP8.
It also emerged in further cross examination of Wyman that, most incautiously, the investigating officer in this matter had forwarded to him the affidavit VDP10 on the morning that Wyman was due to be recalled to give evidence. Wyman reviewed the affidavit and anticipated that he was going to be asked about the discrepancy between his evidence and the logs.
No explanation, let alone a satisfactory explanation, has been provided for why the investigating officer sent VDP10 to a witness due to be recalled to give evidence on the very subject matter that VDP10 dealt with. It is most unfortunate that it happened. Whilst it may not have been the intention of the investigator to “tip” Wyman off as to the potential problem with his evidence, that was undoubtedly the consequence of providing him with the affidavit.
Despite the above matters, I reject the contention of counsel for AS that Wyman deliberately mislead the Court or lied when giving evidence on the first day of the voir dire about the information he had accessed. I have no hesitation in concluding that the error was not the consequence of dishonesty or an intention to mislead, but rather the by-product of the passage of time since the search and the absence of any contemporaneous notes prepared by Wyman recording what information he accessed on 1 January 2021. Whilst I am left with reservations about the reliability of aspects of Wyman’s evidence, I have no hesitation in finding him to be an honest witness doing his best to recall events that had occurred over 2 years ago.
Foster
When confronted with the results of the audit, Foster maintained that he recalled having seen five intelligence reports relating to AS. He accepted however that if the logs indicated Wyman had not accessed VDP4 and VDP5, he could not have read those reports on the MRT. He accepted that he had no notes in his notebook or in his first affidavit identifying the reports he had seen on the MRT on 1 January 2021.
I reject the challenge to Foster’s credibility. As with Wyman, it was put to Foster that he had lied or intentionally mislead the Court about the nature and extent of the information he considered before searching the van. I find that submission and the challenge to Foster’s credibility to be entirely unpersuasive. As with Wyman, I have no hesitation in accepting Foster as an honest witness who was doing his best to recall events taking place more than 2 years ago.
Again, I do have reservations about the reliability of his evidence given the obvious disparity between what he recalls learning on 1 January 2021 via the MRT and what the audit logs demonstrate.
I consider that the likely explanation for this discrepancy is that in preparing a supplementary affidavit for the purpose of the voir dire setting out the information upon which he relied to conduct the search, Foster accessed the intelligence holdings relating to AS. I find that there is a very real risk that by reviewing those intelligence holdings for this purpose, Foster inadvertently contaminated his memory as to which reports he saw, in electronic form, on 1 January 2021.
I find that Foster wrongly assumed that he reviewed the information in all of the available reports pertaining to AS prior to conducting the search. The objective evidence indicates that is not the case. The contamination of his recollection by virtue of him accessing the intelligence reports to prepare a supplementary affidavit, combined with the absence of contemporaneous notes recording in detail the information Foster relied upon for the purpose of conducting the search, reflect adversely on the reliability of his evidence. In respect of his notes, the evidence is clear that Foster did in fact prepare handwritten notes relevant to the search. However, it inevitably follows from what I have said that those notes were not sufficiently detailed to be used as an effective mechanism to refresh his memory about precisely what information he had to hand before conducting the search. If they were, the situation presently under consideration would not have arisen.
Findings in relation to the information available to Foster and the genuineness of his suspicion
It is well understood that examining the lawfulness of a search conducted pursuant to s 52(9) of the Controlled Substances Act involves two separate inquiries. In R v Willingham [2012] SASCFC 104 at [10], the sequential questions to be asked were articulated in these terms:
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances.
Whether a suspicion genuinely held by a police officer was a reasonably held suspicion is a factual question that is to be decided on the balance of probabilities.[3]
[3] Zenuni v The King [2022] SASCA 106, [12].
It is important to bear in mind that a suspicion that a fact exists is less certain than a belief in the existence of that fact. As the Full Court of the Supreme Court explained in R v Nguyen (2013) 117 SASR 432 at [21]-[22]:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
The purpose of the qualifier “reasonable” in s 52(9) of the Controlled Substances Act is to prevent incredulous, gullible, naïve and artificially held subjective suspicions from empowering police officers to execute powers of search that effect a significant intrusion upon civil liberties. To return to R v Nguyen (2013) 117 SASR 432 at [22], the significance of the objective limb was explained in the following way:
Importantly, s 52(6) and (9) of the [Act] require more than an actual suspicion; the police officers must not only suspect but ‘reasonably suspect’ that the person possesses an illicit substance or that there is evidence of an offence against the [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 this 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…
As the above passages demonstrate, a “reasonable” suspicion is often contrasted with a suspicion that is the product of or involves little more than “mere idle wondering”. A “reasonable” suspicion is one founded on “more than a reason to consider or look into the possibility of the existence” of a particular fact – in this case, that there was methamphetamine located in the van. For Foster’s suspicion to be a reasonable one, there had to be something more than a tenuous, even if rational, connection between the information he had available to him and the working hypothesis that there was evidence of drug offending in the van.[4]
[4] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303.
Whether a subjectively held suspicion is a reasonably held suspicion requires an assessment of whether the information available to the relevant police officer at the time the power of search is engaged would “rationally produce a suspicion in the mind of…a person thinking reasonably about that information”.[5] In Bae and Koo v The Queen [2020] SASCFC 7 at [76], the test was expressed in the following slightly different, but conceptually aligned terms, namely, whether a “reasonable person in possession of the same information as the police officer would entertain the same suspicion”.[6]
[5] R v Nguyen (2013) 117 SASR 432, [22].
[6] See also George v Rockett (1990) 170 CLR 104, 112; Prior v Mole (2017) 91 ALJR 441, [4].
Relevant considerations when examining the reasonableness of a suspicion based upon information available to a police officer when a power of search is deployed include:
·The nature and extent of the information.
·The particularity or generality of the information.[7]
·The source of the information.
·The ostensible reliability and credibility of the information.
·The currency of the information.
·The nature and duration of the illicit activity to which the information relates.
[7] See, eg, McHugh v The Queen [2022] SASCA 5, [9]-[10].
The implications that follow from the characteristics of the information available to a police officer will of course be fact sensitive. There is no prescriptive formula for determining the age, quality and content of information that may, in any given case, support a finding that a subjectively held suspicion was a reasonable one.[8]
[8] R v Colenso [2016] SASCFC 128, [32]; McHugh v The Queen [2022] SASCA 5, [11].
It may be unreasonable for a police officer to rely on apparently detailed and particularised information that is derived from a source known to be unreliable or devoid of credibility. Similarly, it may be unreasonable for a police officer to rely on detailed and apparently reliable and credible information that is dated or stale, where the nature of the information suggests that whatever illicit activity was being undertaken by a person, or at a place, of interest was transient. On the other hand, dated information from a reliable source that speaks to a rational and sound working hypothesis of ongoing criminal conduct may sustain a reasonable suspicion that, at a much later date, a person was continuing to engage in criminal activity of the specified kind.[9] There can be no universal rules in this respect. It is, in part, for this reason that the courts retain a supervisory role in determining whether a subjectively held suspicion was in a fact a reasonably held one in the circumstances of the particular case.
[9] McHugh v The Queen [2022] SASCA 5, [12]; Schatto v The King [2022] SASCA 129, [43].
The first question: did Foster genuinely suspect methamphetamine might be in the van
I have previously indicated that I considered Foster to be an honest witness, doing his best to accurately recall events that transpired 2 years ago. I accept Foster’s evidence that he subjectively suspected that a search of the van might uncover methamphetamine. My reservations concerning his reliability do not cause me to question this aspect of his evidence, and there was, ultimately, no serious challenge on the subjective limb of s 52(9).
I have considered the argument advanced by counsel for AS that, if Foster suspected anything, it was not referrable to an offence against the Controlled Substances Act but to generally nefarious or illegal behaviour. I reject that submission. All of the information Foster had related to drug offending of one type or another. It would have been intellectually illogical, armed with information that 10 Teak Street was associated with drug offending and that AS had some association with drugs, for Foster to suspect that something might be found in the van, albeit not necessarily drugs.
Accordingly, I accept, and find, that Foster suspected that a search of the van might uncover evidence of the commission of an offence against the Controlled Substances Act. The first of the inquiries relevant to the lawfulness of the search must be answered in favour of the prosecution.
The second question: was Foster’s suspicion reasonably held?
In order to determine whether the suspicion subjectively held by Foster was an objectively reasonable suspicion, it is necessary to identify the information that Foster could have taken into account prior to conducting the search. This necessarily excludes, on my antecedent findings, the content of VDP4 and VDP5.
When considering the reasonableness of the suspicion, it is important to have regard to the combined force of the information available to Foster. No one piece of information should be excluded from examination of the reasonableness of the suspicion merely because, standing alone, it might be intractably neutral or otherwise explicable. However, information or circumstances that have a readily apparent and innocuous explanation are unlikely to add much to the global assessment that must be made.
The information that was available to, and the potentially relevant circumstances observed by, Foster prior to the search may be shortly summarised:
·10 Teak Street was considered by police to be a place of interest and was suspected to be associated with drug offending. I accept the evidence of Wyman and Foster as to 10 Teak Street generally. I find that Wyman and Foster considered 10 Teak Street to be a place of interest and that it was suspected to be associated with drug offending of some description. However, there was no information available to Foster that AS, the van or the registered owner of the vehicle had any recorded connection or association to 10 Teak Street or its occupants.
·The van parked adjacent to the Reserve Road, side boundary, of 10 Teak Street and there was a pedestrian access gate from Reserve Road into the rear yard of the premises. I accept Foster’s evidence that he considered there was a possible association between AS and 10 Teak Street on account of the fact that the van stopped adjacent to the side boundary of the property and not too far from the pedestrian access gate. However, in all of the circumstances, it was speculative to think that there was anything telling or even remotely informative about where the van had stopped, particularly in circumstances where Foster was aware from the MRT databases that there was no known association between AS, the van and Teak Street. The van and its driver were strangers to 10 Teak Street. This negative information, that Foster was aware of, tended to substantially undermine the hypothesis of association. As I have said, the marked patrol car had been following the van for just under a kilometre at the time it pulled over. One readily apparent explanation for the van stopping is that the driver contemplated that police were wanting to speak with him. The van never entered Teak Street and AS never made a move towards the pedestrian gate on Reserve Road, even if it could be used to access the rear of the property.
·With respect to the conversation Foster had with AS about his reason for being in the area and his inability to provide a street number for the address he claimed he was intending to visit, there was nothing inherently incredulous or suspicious about AS’s responses. AS provided accurate details concerning the registered owner of the van and did not respond to the police approach in a suspicious or furtive manner. Equally, there is nothing, to my mind, of any value whatsoever in the fact that AS was driving a van registered to another person or that he was the sole occupant of the van.
·As I have said, I accept the evidence of Wyman and Foster that AS was sweating, although I cannot see this myself on VDD7. Nonetheless, given the length of their interactions with him and opportunity to make first-hand observations, I find that AS was sweating sufficiently for both to notice. However, as I have also said, it was a warm day and neither Wyman nor Foster suggested that AS appeared drug affected or nervous.[10] In the circumstances, and even viewed in the context of the information in its totality, I do not consider AS’s sweatiness to be of any moment.
[10] Cf McHugh v The Queen [2022] SASCA 5, [4].
I am also mindful in this respect of the cautionary remarks made in R v Marafioti (2014) 118 SASR 511 about the dangers of treating emotional or physiological human reactions as suspicious. Marafioti concerned the search of a car based upon a suspicion predicated on the following matters:
·A passenger in the vehicle was apparently drug intoxicated.
·The vehicle being driven was a hire car – a common modus operandi for drug dealers.
·The accused was wearing a bumbag of a kind often used by drug dealers.
·The accused was evasive, agitated and in a hurry to go; and
·The accused gave an account as to where he was going which was inconsistent with his passengers.

Having remarked that the apparent drug induced intoxication of a passenger in a vehicle is a reasonable basis on which to suspect that an illicit substance or an instrument for its administration, might be found in the vehicle, Kourakis CJ added at [12]-[14]:
However, in the absence of his belief about Ms Doukas’ state of intoxication I harbour doubts about the reasonableness of the other grounds. There are many law abiding members of the community who for a variety of reasons hire cars to travel in their home state, wear bumbags or become anxious in the presence of police.
True it is that the other circumstances relied on by Constable Boyd may often be associated with drug dealers but they are also commonly associated with innocent persons. The suspicion associated with those circumstances is qualitatively and quantitatively very much weaker than the suspicion which attaches to a drug intoxicated person. Behaviours which might appear “odd” or “different” to some should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers.
Be that as it may, the apparent intoxication of Ms Doukas in the context of the surrounding circumstances gave reason to suspect the presence of evidence of offending. The search was lawful.
AS had been travelling in a vehicle and had been kept under observation by police in a marked patrol car for some time. There are any number of innocent explanations that might account for his “sweaty” presentation. It is highly material in this respect that neither Wyman nor Foster suggested at any point in their evidence that they thought AS’s presentation was consistent with him being under the influence of drugs.
·As to the cautions associated with AS and which appeared on the MRT, they refer only to “Drugs” and do not identify the circumstances in which the caution has arisen. The caution was not linked to a date or event and could well have been historical.
It should not be thought that the way in which I have collected and analysed the above circumstances or tranches of information is indicative of examining the material in isolation. Rather, the analysis is designed to convey that, to my mind, this collection of information and observations, viewed holistically and in combination with the intelligence reports, does not materially advance the proposition that Foster’s suspicion was reasonably held.
I turn then to the intelligence reports.
As to VDP2, I find that Wyman opened the intelligence submission and the “Person” section of the report. I am not satisfied that the “Intelligence / Street Check Report” section of VDP2 was available as at 1 January 2021. However, even if it was, the audit log in VDP10 suggests that Wyman did not access that section of the report. I find therefore that the only information available to Foster emanating from VDP2 was that someone was assisting AS in setting up a clan lab. The available information provided no guidance as to the time period in which that activity was said by the source to be taking place.
As to VDP3, I find that Wyman opened the intelligence submission and the “Intelligence / Street Check Report” section. I find that Foster was aware from the intelligence holding in VDP3 of information that AS was trying to source a large item of some description for his lab and that AS was suspected to be involved in the manufacture of controlled drugs. The available information provided no guidance as to the time period in which that activity was said by the source to be taking place.
As to VDP8, I find that Wyman opened the intelligence submission and the “Intelligence / Street Check Report” section. I find that Foster was aware from the intelligence holding VDP8 of information that AS and an unidentified person were “cooking meth” and “always trying to get pseudo”; that AS had a history “for manufacture controlled drug from 2011 and was nominated as being the main cook behind the Scotia St Croydon Lab in 2019”. Putting aside the references to 2011 and 2019, the available information provided no guidance as to the time period in which AS was “cooking meth” or “always trying to get pseudo”. I acknowledge that, conceptually at least, the suggestion that AS was “always trying to get pseudo” carries with it an implication of permanence or ongoing conduct.
I find that on the face of the reports, there was no information available to Foster as to the currency of the events or activities referred to in VDP2, VDP3 and VDP8 (except, obviously, for the information relating to 2011 and 2019), and in particular, whether they had a reasonable and sufficiently proximate temporal association with 1 January 2021.
I find that at least part of VDP2 and VDP3 and VDP8 had been uploaded to the police intelligence system some time in December 2020, but it is not possible to be more specific.
On that analysis, and even assuming for the sake of argument, that the date of uploading the report necessarily corresponded closely to the time at which (1) the information was received and (2) the events recorded in the information were taking place, the information and underlying events could well have been a month old at the time of the search.
Both Wyman and Foster gave some evidence tending to support the proposition that the information referred to in the intelligence reports would likely have been received proximately to its uploading to the SHIELD system. That evidence has an appeal as a matter of common sense. There would be little utility in sitting on information of this kind or otherwise delaying uploading it to the SHIELD system.
However, this still leaves open that the information may have been just more than a month old and, moreover, that the events being described in the information had become known to the source providing the information to police prior to December 2020. Indeed, as Wyman said, the information in the reports may have been acquired in the “weeks, months leading up to” December 2020. It necessarily follows that the events or activities referred to in the reports could well have been observed by or become known to the source in the weeks or months leading up to December 2020.
The information that AS had a history dating back to 2011 and 2019 of involvement in the manufacture of methamphetamine deserved little weight given its age,[11] although it was consistent with the information in VDP2, 3 and 8 that suggested AS had a more recent association with the manufacture of drugs. Information relating to 2011 and 2019 may have been a useful aid to interpreting the reliability of the information contained in the intelligence reports, but I do not consider it capable of bridging the lacuna between 1 January 2021 and whenever it was that the events or activities reported in the intelligence submissions were observed by or became known to the source.
[11] Zenuni v The King [2022] SASCA 106, [26]. See also Schatto v The King [2022] SASCA 129, [36].
In my view, it is of some significance that none of the information available via the MRT tended to suggest that AS would use a vehicle as a conveyance for the transportation of methamphetamine or, for that matter, that he had previously been found in possession of methamphetamine, let alone in a vehicle or on his person. Of course, this is the suspicion that Foster said he held and it is the reasonableness of that suspicion that must be evaluated. Whilst I accept that the information was specific to AS and AS was in the van, the nature of the criminal conduct in which he was said to be involved did not resonate with the circumstances that presented to Foster.
The point that I am endeavouring to make is that there was nothing in the information available to Foster that purported to link AS’s historical, illicit activities with the van, vehicles generally, or with the area through which he was travelling; nor did the information tend to suggest that AS would be in possession of methamphetamine on 1 January. I consider Foster’s working hypothesis in this respect to be fundamentally speculative.
As to VDP4, and as I have said, I find that Wyman did not open the intelligence submission. The audit log does not support the proposition that he did. I find that Wyman and Foster were both mistaken in suggesting that they had access to this information. Moreover, I am not prepared to rely on Wyman’s evidence that even without accessing the intelligence holding, a summary of the information would have been available to him. That evidence is not supported by the content of VDP10, which suggests that it is not unless a user opens a particular intelligence submission that any data relating to that submission is displayed. Accordingly, in assessing the reasonableness of Foster’s suspicion, I exclude from consideration the content of VDP4.
As to VDP5, I find that Wyman did not open the intelligence submission. The audit log does not support the proposition that he did. I find that Wyman and Foster were both mistaken in suggesting that they had access to this information. Moreover, I am not prepared to rely on Wyman’s evidence that even without accessing the intelligence holding, a summary of the information would have been available to him. That evidence is not supported by the content of VDP10, which suggests that it is not unless a user opens a particular intelligence submission that any data relating to that submission is displayed. Accordingly, in assessing the reasonableness of Foster’s suspicion, I exclude from consideration the content of VDP5.
Conclusion on “reasonable suspicion”
In my view, the obvious shortcomings in the working hypothesis that AS might have had some association with 10 Teak Street deprives the “geographical” and “circumstantial” connections relied upon by Foster of any real value.
For the reasons I have given, the absence of any known connection between AS, the van and 10 Teak Street revealed by police inquiries substantially undermines the rationality of Foster’s analysis and, at the very least, renders the drawing of an inference of possible association highly tenuous.
I consider the intelligence information, the cautions concerning AS and his historical association with illicit activities, and the location in which the search occurred and the other matters observed by Foster, to be unpersuasive in establishing the suspicion as reasonably held. The short point is that the information that AS was setting up a clan lab; trying to source an item of an unknown description; was looking for pseudoephedrine or cooking methamphetamine was insufficiently linked in time, place and circumstance with the scenario that unfolded on 1 January 2021 to enable me to conclude that Foster’s suspicion that there might be methamphetamine in the van was anything other than speculative.
Although an imperfect analogue, the approach taken in R v Nguyen (2015) 248 A Crim R 398 at [31]-[32] is apposite. It was said there that:
Similarly, subs (9) [of s 52 of the CSA] required as a prerequisite for a lawful search of the vehicle driven by the applicant that Detective McFarlane reasonably suspected that drugs were in the vehicle while it was being driven by the applicant, and not merely that the vehicle had historically been associated with drugs.
The fact that other persons, with whom Detective McFarlane had no basis to believe the applicant was associated, who had lived in the house may have taken, or dealt, in drugs could not lead to a reasonable suspicion that an unknown person leaving the house in a vehicle was in possession of drugs...The fact that other persons, with whom Detective McFarlane had no basis to believe the applicant was associated, had used the Commodore to transport drugs an unknown time previously could not lead to a reasonable suspicion that an unknown person driving the Commodore was in possession of drugs. The combination of these two facts could not lead to a reasonable suspicion that an unknown person leaving the house in the Commodore was in possession of the drugs.
This approach, translated to the circumstances of this case, required that Foster reasonably suspect that drugs were in the van while it was being driven by AS, and not merely that AS had historically been associated with drugs in one way or another. What was missing, in this instance, was information that illuminated a rational and contemporaneous connection between the van, AS and the suspected possession of methamphetamine on 1 January 2021.
Even assuming that the events described in the information contained in VDP2, 3 and 8 were observed or known to the source to be taking place at the start of December 2020, my view would remain unchanged. The lack of any meaningful connection between that information and the time, place and circumstances in which the search was conducted preclude a finding that Foster’s suspicion was reasonably held.
The search was unlawful.
The third question: the public policy discretion
Having found that the search of the van was unlawful, it is necessary to consider whether the evidence obtained in consequence should be excluded in the exercise of the public policy discretion. The exercise of that discretion requires consideration to be given to the matters identified in Bunning v Cross (1978) 141 CLR 54 at 78-80 by Stephen and Aickin JJ and, in particular, the balance between bringing offenders to account and ensuring that curial processes do not provide tacit endorsement or acquiescence in unlawful or improper conduct by those conferred with responsibility to investigate contraventions of and enforce the law.[12]
[12] R v Armistead [2019] SASCFC 85, [104]; Kadir v The Queen (2020) 267 CLR 109; R v Golja [2017] SASCFC 61, [35].
In Ridgeway v The Queen (1995) 184 CLR 19 at 38, it was said by Mason CJ, Deane and Dawson JJ that a court considering the exercise of the public policy discretion should have regard to the seriousness of the alleged offending, the cogency of the evidence obtained as a result of the unlawful conduct and whether the illegality or impropriety is the result of genuine misunderstanding, reckless or deliberate subversion of jealously guarded rights. Moreover, whether the approach taken by police is sanctioned at higher levels or is otherwise suggestive of an endemic disregard for appropriate and lawful practices or procedures should also be taken into account. Finally, the ease with which police might have complied with law is not to be overlooked.
These considerations were drawn together in Rockford v The Queen (2015) 122 SASR 391. Stanley J, with whom Kourakis CJ and Sulan J agreed, explained at [39] and [41] how the questions of high public policy that must be addressed intersected with the nature of the illegality in that case:
As his Honour observed, it is the duty of the Court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
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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 on to 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 widespread 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.
It is well understood that the exercise of the discretion is not concerned with fairness to the accused. In Bunning v Cross (1978) 141 CLR 54 at 74-75, Stephen and Aickin JJ explained that what is involved in the exercise of the “public policy discretion” is:
…no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.[13]
[13] Ibid at 74.
There are a number of matters of concern arising on the evidence before me. The first is the comment made by Foster when he began following the van about the registered address being in Morphett Vale. I appreciate that this was a comment made as between partnered police officers within the confines of the patrol car. However, what is concerning about the nature of the comment is that it is highly presumptuous. It suggests that Foster, wrongly in my mind, thought it to be of considerable moment that a vehicle registered to a suburb in the south of Adelaide might be seen travelling in the north-east of Adelaide. In the context of a decision to follow the van, notwithstanding it committed no infringement of the Australian Road Rules, and thereafter search the van, the comment suggests an over-eagerness to intercept the vehicle and engage with its driver and is consistent with what I would find to be the subsequently over-zealous decision to search the van.
Put slightly differently, the comment exposes a mindset that is emblematic of the misguided and inexact assessment made by Foster about the sufficiency of the information to ground a search without warrant.
I consider that the assessment made by Foster that he had a proper basis to search the van, in light of what I have found to be dated information insufficiently connected with the circumstances prevailing on 1 January 2021, represents a somewhat cavalier attitude to the conditions precedent to and exercise of power, without a warrant, to search. Whilst I am not prepared to find that Foster intended to search the van from the moment he saw it irrespective of what occurred, the evidence does support a finding that he was, in my view, unjustifiably curious about the van and took too liberal a view of the adequacy of the information available to him to sustain a search.
Although I have found that Foster genuinely suspected methamphetamine would be found in the van upon search and that he must, therefore, have thought he was empowered to search the vehicle, this is relevant but not determinative of the call for discretionary exclusion. Indeed, in R v Rockford the genuineness of the police officers’ belief that what they were doing was lawful, did not stand in the way of the exclusion of the evidence. I take the same approach here.
Next, I have regard to the fact that the manner in which Foster and Wyman documented the events of 1 January 2021 leaves something to be desired. I accept that Foster made handwritten notes identifying, at a general level, the information he relied upon for the purpose of conducting the search. Clearly, those notes failed to accurately record exactly what information he had available to him and hence the contamination of his memory when he reviewed all intelligence holdings referable to AS when preparing his supplementary affidavit. I make it clear that it is not the mere inadequacies in note taking, or the unreliability issues that emerged on the voir dire, that I consider important. Rather, it is what these shortcomings in the approach taken by Foster and Wyman reveal about their mindset and approach to the exercise of intrusive powers that is relevant.

The nature and gravity of a power, such as that conferred by s 52(9), to effect a substantial intrusion into the private property of a member of the community who is not observed to be committing an offence at the time of a search, must be borne steadfastly in mind when considering the relevance of the failure to comprehensively and accurately document the decision making process preceding the execution of a power of search. It behoves police officers deploying s 52(9) to accurately and comprehensively record the information which they have taken into account. As I have said, I consider the lack of attention to such matters to be redolent of a failure to appreciate the importance of strict compliance with the pre-conditions to conducting a search.[14]
[14] See, eg, R v Nguyen (2013) 117 SASR 432, [41].
Whilst I accept that the cogency of the evidence obtained on account of the search was not in any way diminished by the illegality, that will, with rare exceptions, ordinarily be the case. To return to Bunning v Cross (1978) 141 CLR 54 at 79, Stephen and Aickin JJ explained that where the illegality involved is deliberate or reckless (and there is an element of recklessness involved in the exercise of the power here), the cogency of the subsequently obtained evidence will often play no or no material role in shaping the exercise of the discretion:
To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist.
In R v Nguyen (2013) 117 SASR 432, an unlawful search that produced only a moderate infringement of the accused’s civil liberties was held to nonetheless warrant the exclusion of the illegally obtained evidence, notwithstanding the cogency of the evidence was unaffected. The degree of departure from a proper exercise of intrusive powers compelled the exclusion of the evidence.
I do not lose sight of the fact that trafficking drugs is a serious offence, carrying a maximum term of imprisonment of 10 years and that it is in the community’s interest that drug offenders be tried and brought to account where their guilt is proved to the criminal standard. However, I consider the offending that was detected as a result of the illegal search was not, on the face of it, so grave as to supply a powerful justification for declining to exclude the evidence if the other factors relevant to the discretionary calculus point in favour of exclusion.
In Pollard v The Queen (1992) 176 CLR 177 at 202-203, Deane J observed of the passage of Bunning v Cross extracted above:
As that passage makes plain, the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police in not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
I conclude that exclusion of the evidence obtained as a result of the search of the van on 1 January 2021 is necessary in order to guard against the appearance of judicial acquiescence in unlawful conduct on the part of the police.