R v Baftiroski, Ioannidis and Burns - [2020] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAFTIROSKI, IOANNIDIS AND BURNS
[2020] SADC 70
Reasons for Ruling of Her Honour Judge Chapman
9 June 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The three accused are charged with drug offences. The accused, Ioannidis, is also charged with money laundering. The offences arise out of a search by the police of a vehicle. Drugs and cash were located. Prior to the search, two of the accused were detained after a police officer drew his firearm. The house of the third accused was then searched.
Held: The detention of the two accused was unlawful. The police officer did not know what offence had been committed. The search of the vehicle was speculative. Even if there had been a suspicion that drugs or equipment were in the vehicle that would afford evidence of a drug offence, that suspicion was not reasonably held. The search of the vehicle was unlawful and the subsequent search of the house was tainted by that illegality. Evidence of search of vehicle and search of house excluded.
Christie v Leachinsky [1947] 1 All ER 567; R v Tipping [2019] SASCFC 41; R v Fazio (1997) 69 SASR 54; R v Rogers (2011) 109 SASR 307; Dam v Nguyen [2015] SASCFC 131; R v Nguyen (2013) 117 SASR 432; Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391; Pollard v The Queen (1992) 176 CLR 77, applied.

R v BAFTIROSKI, IOANNIDIS AND BURNS
[2020] SADC 70

Michael Burns is charged with two counts of trafficking in a controlled drug (counts 1 and 2).
Natalie Ioannidis is charged with two counts of trafficking in a controlled drug (counts 3 and 4) and money laundering (count 5).
Roman Baftiroski is charged with two counts of trafficking in a controlled drug (counts 6 and 7).
The offences were allegedly committed on 14 March 2018 at Glenelg North. The charges arise from the police finding drugs in the front passenger foot‑well of a Toyota Kluger (counts 1, 3, 6), cash in a bag in the boot of the Toyota Kluger (count 5) and drugs in the gutter near the rear wheel of the parked Toyota Kluger (counts 2, 4 and 7).
Each accused filed a Rule 49 Notice seeking an order that the evidence obtained as a result of the search of the Toyota Kluger and the search of the house at 6 Alison Street, Glenelg North on 14 March 2018 (the home of Michael Burns) be excluded. The ground relied upon for the applications was that the police did not hold the requisite reasonable suspicion to undertake a search of the vehicle (pursuant to s 52 of the Controlled Substances Act, 1984 (the CSA)) or the property (pursuant to s 67 of the Summary Offences Act 1953 ((the SOA)).
The prosecution called five police officers on the voir dire. Detective Craig Zetter was the police officer who executed the search of the Toyota Kluger. Detective Richard Power was the police officer who executed his general search warrant to search the house.
Chronology of Events
At about 2.10pm on 14 March 2018, Detective Briggs and Detective Jamieson were conducting a drive past of 6 Alison Street at Glenelg North, the home of Mr Burns. As they approached that address, they saw three people (Ioannidis, Burns and Benjamin Bernhardt) getting out of a blue Mercedes SUV parked on the side of the road opposite 6 Alison Street.
A check was conducted over the radio to confirm that Ioannidis was the subject of a firearms prohibition order. Once confirmed, Detective Jamieson searched Ioannidis’ handbag and found a Blackberry phone, prescription medication (which Ioannidis said was pain relief for her injured shoulder which was in a sling) and two sets of keys, but no car keys. Detective Jamieson asked Ioannidis what she had in her pocket. Ioannidis told her it was about $700 cash. During the conversation, the police were told the three of them were parked there in order to get burgers from the shop on Anzac Highway. Uniformed officers arrived as well as Detective Zetter and Detective Attenborough.
Once the two accused and Mr Bernhardt left the scene, the police discussed the various possible plans of action. The discussion focussed on a white Mazda which was parked next to the blue Mercedes and was believed to have a connection to Ioannidis. The police decided to conduct surveillance on the white Mazda to see if Ioannidis returned to that car. The police then disbursed and continued their communications via the police radio.
Detective Zetter conducted some checks of the Police Intelligence Records using the computer in his vehicle. Detective Attenborough kept observations on the white Mazda. At about 3.45pm, he saw Ioannidis get into the car and drive off in a northerly direction on Alison Street. He notified his colleagues via radio. Detective Jamieson and Detective Briggs drove north along Alison Street and saw the white Mazda parked at the very northern end of Alison Street. A Toyota Kluger was parked directly in front of it.
Ioannidis and Baftiroski were seen by Detective Briggs standing next to the boot which was open. Detective Jamieson stopped the police vehicle next to the Toyota Kluger. Both accused moved away from each other. Detective Briggs drew his firearm and made verbal commands for each of the accused to stop, which were ignored. Ioannidis headed toward the white Mazda. Baftiroski went onto the footpath and around the side of the Toyota Kluger out of Detective Briggs’ view. Detective Briggs saw Baftiroski move towards the left‑hand passenger door and bend down near the rear left wheel of the Kluger. Baftiroski again came around the back left‑hand corner of the car. Detective Briggs told Baftiroski to lay on the ground. Baftiroski complied and remained in that position.
Detective Jamieson got out of the police car with her attention on Ioannidis. She saw Ioannidis go to the driver’s seat of the white Mazda and start to reverse the car down Alison Street. Detective Jamieson caught up to the white Mazda and told Ioannidis to turn the car off. Detective Jamieson reached into the car through the open driver’s window in an attempt to take out the key but it was a push button start. Ioannidis followed her directions and stopped the car. Detective Jamieson directed Ioannidis to the footpath and sat her down against a fence. She saw that Detective Briggs had Baftiroski lying on the ground on his stomach. Detective Jamieson assisted in hand cuffing Baftiroski.
Detective Zetter arrived on the scene shortly after 3.45pm. He spoke to Detective Briggs and Detective Jamieson. He then searched the Toyota Kluger. He opened the front left passenger side of the vehicle where he saw a brown paper bag in the foot‑well. It contained methylamphetamine which is the subject of counts 1, 3 and 6. He informed Detective Briggs and Detective Jamieson what he had found.
He then searched the rear of the vehicle. He saw a bag with female clothing and a purse. It contained Ioannidis’ driver’s licence and about $19,000 cash (count 5). He then looked inside the centre console of the vehicle. He saw an unused nappy with bundles of $50 notes in there as well as a wallet with Baftiroski’s identification in it. By about 3.54pm, Detective Attenborough had arrived at the second scene. He was allocated the task of exhibits officer.
Detective Zetter then saw another brown paper bag in the gutter near the back, left side of the vehicle. There was methylamphetamine in that bag. That is the subject of counts 2, 4 and 7.
Detective Briggs arrested both accused for trafficking in controlled drugs.
From about 3.00pm, Detective Power had been listening on the police communications radio. He was directed by Detective Zetter to go to 6 Alison Street, Glenelg North (Burns’ home) in order to commence a search at that address. He attended at that address at 4.00pm. He entered at about 4.24pm, explained the warrant to Burns and then searched.
Unlawful detention of accused Baftiroski/Ioannidis
In summary, I find that the detention of Baftiroski and Ioannidis was unlawful. Detective Briggs had no basis to draw his firearm or detain the accused. From the time he drew his firearm, to the time of formal arrest, he did not know what offence he suspected they had committed. He suspected they had committed an offence, but he did not know what that offence was. Additionally, he failed to advise them of the reason for their detention (no doubt, because he did not know the reason) and failed to inform them of their rights as soon as reasonably practicable. The relevant evidence is as follows.
Detective Briggs gave evidence that over the radio there were discussions about suspicions regarding what Burns, Mr Bernhardt and Ioannidis were up to at the first scene. He believed Baftiroski was also mentioned. There was talk of Burns, Mr Bernhardt and Baftiroski being involved in drug trafficking and manufacture.
The recorded police communications contain two references to Baftiroski. First, at 3:37pm, a requested check on a licence plate led to Baftiroski being mentioned over the radio. Second, at 3:38pm, Detective Zetter said over the radio ‘Exactly, the last month there’s heaps of them about Burns and Bernhardt, Ioannides, Baftiroski dealing and being standover, supplying and everything, so I think we need to hit this when they come back’.
Detective Briggs said he was in contact with STAR Group on the phone periodically so he missed maybe half of the transmissions.
At about 3.45pm, when they were informed that Ioannidis had entered the Mazda and was driving north, he and Detective Jamieson immediately left with a view to catch up with Ioannidis and stop her vehicle to conduct a search. At the very northern end of Alison Street they saw the white Mazda pulled over to the left. He said there was another vehicle directly in front of it, a Toyota Kluger, with the boot open. Ioannidis and a male that he did not know were at that open boot and their attention was within the boot. Detective Briggs said he believed he ‘put the red and blues on’. They hastily pulled up very close to the Kluger.
He gave evidence that as soon as Ioannidis and the male saw the police, Ioannidis immediately went back to her car and the male went onto the footpath then around the Kluger. In his mind, the male was engaged in an immediate act to avoid police.
Detective Briggs got out of his car and started yelling for them to stop and show their hands. He said, ‘this all happened super quick’.[1] He immediately withdrew his firearm in what is called ‘firearm subject control’, that is, the firearm facing the ground but if it was needed to be raised, it could be. As he yelled he saw the male bend down near the rear left wheel of the Kluger and move towards the left‑hand passenger door. He continued yelling. The male then came back into view and appeared from the back, left hand corner of the Kluger. The male complied with Detective Briggs’ direction to lie on the ground.
[1] T20.
The male was then handcuffed by Detective Briggs and Detective Jamieson with two sets of handcuffs.
Detective Briggs gave evidence that ‘I suspected he had committed an offence. I didn’t know what offence that was’[2]. He did not know whether they had any weapons. He handcuffed the male because he suspected the male had committed an offence which is ‘why they tried to evade us’[3]. He was confident an offence had been committed, an offence that would ‘only be found by searching’.[4]
[2]    T43.
[3]    T44.
[4]    T50.
At 3:50pm, a video recorder was activated. Baftiroski is visible on the video, lying face down on the footpath. Detective Briggs spoke to Ioannidis. He obtained her name, date of birth and address. He said ‘At the moment, you’ve been detained. We’re on Alison Street at Glenelg North and we’re just going to be conducting a search of the two vehicles. Do you understand that?’. Detective Briggs then gave an incomplete caution to Ioannidis. Detective Jamieson arrived, there was a brief discussion about Ioannidis’ arm and she was handcuffed. Before 3:52pm, Detective Briggs received information from Detective Zetter advising that ‘probably a couple of ounces’ of ice had been found. Before 3:53pm, Detective Jamieson helped Baftiroski sit up so he could sit against the fence, in handcuffs.
The search of the car continued.
At about 4.10pm, Detective Briggs spoke to both accused. He took their details. He then arrested each of them for trafficking in a controlled drug and read out their s 79A rights.
Subject to certain exceptions which do not apply here, in order for an arrest to be lawful, a person must be told the reason for their arrest[5]. Here, neither accused was told the reason for their arrest, because at the time, Detective Briggs did not know what offence they may have committed. It was not until the search of the vehicle had commenced and the drugs found in the front passenger seat foot‑well that he knew the offence for the arrest. Furthermore, there was a delay of almost 20 minutes after the drugs were found until the accused were informed of their rights. In my view, that was in breach of s 79A(3) of the SOA which requires a police officer to inform the person of his or her rights as soon as reasonably practicable. Upon arrest, a person has a right to have a solicitor, relative or friend present during an investigation, which includes a search. Each accused was denied that right.
[5] Christie v Leachinsky [1947] 1 All ER 567; R v Tipping [2019] SASCFC 41
Unlawful search of the Toyota Kluger
Detective Zetter gave evidence he searched the Toyota Kluger pursuant to s 52 of the CSA. He suspected drugs or equipment were in the vehicle that would afford evidence of an offence against the Act. He based that suspicion upon a number of factors.
Detective Zetter’s suspicion: the first scene
One factor relied upon by Detective Zetter was information from the first scene. When he attended, he knew that two of the three people present were Ioannidis and Mr Bernhardt. Initially, he did not recognise the third person. He knew of Ioannidis through other investigations into the Finks Motorcycle Gang. He believed she had a Firearms Prohibition Order against her. He recognised a white Mazda near the blue Mercedes as one to which she had been previously linked. He had a discussion with Detectives Briggs and Jamieson. He found out there was nothing on Ioannidis, including no car keys. He gave evidence that he got information from one of the officers, probably Detective Jamieson, that Ioannidis was acting suspiciously compared to when she has got nothing to hide; she was being a ‘little bit stand off‑ish’. By 3.25pm, he realised that the third person was Michael Burns. He had not recognised him before because Burns had put on weight.
His evidence about this factor was criticised. It was suggested he had no basis for believing that Ioannidis was acting suspiciously at the first scene, that is, that she was ‘stand off-ish’. He agreed he had had no personal contact with Ioannidis prior to that day. He had only seen her on CCTV footage earlier in the year and she was part of the police investigation into the Finks which involved him constantly reviewing documents where her name was mentioned.
He was asked about the basis for the police radio communication he made at 3.12pm (on tape 99110) when he said ‘Roger um how many afternoon shifts are there? We are just trying to get Ioannidis into that car so we can pull it over cos she’s acting pretty suspicious compared to normally, when she’s got nothing she’s acting pretty chirpy and friendly’. He believed Detective Jamieson may have given him the information.
In her evidence, Detective Jamieson said she had met Ioannidis maybe three times before but there was nothing different about her general behaviour or demeanour on this day. She agreed that Ioannidis was compliant and polite, a little bit argumentative about her rights under the Firearms Act, but generally, quite pleasant.
On behalf of Ioannidis, Mr Vadasz suggested to Detective Zetter that at the time he made the radio communication he was aware that it could end up being played back in court and he was simply making it up in order to justify a search. Detective Zetter denied that. Not for a moment do I consider that Detective Zetter had anything but the job on his mind at the time he made that radio communication. To suggest that he was manufacturing something in order to suit a future court date is fanciful. It was not put directly to Detective Jamieson that she had not said something like that about Ioannidis at the time to Detective Zetter. Detective Zetter said he would never have made it up to say she was acting suspiciously. It would have come to him in some form. I think it probable he received the information from Detective Jamieson, who has now forgotten having formed that opinion at the time and passing it on to Detective Zetter.
Additionally, it was suggested that Detective Zetter should not be believed about his state of mind at the time he was at the first scene because the police did not search the white Mazda there and then. It was suggested that the police were only using the Firearms Protection Order (FPO) as a ruse. If a possible breach of the FPO had been their focus, then the white Mazda would have been searched.
Detective Zetter explained he was informed by Detective Jamieson that there were no car keys on Ioannidis. The connection between Ioannidis and the white Mazda related to a time back in January 2018. She had not been the hirer of the vehicle then and he was aware that she had driven it once. The vehicle was relevant to their investigations in relation to the Finks. Furthermore, she did not have the keys to that car on her on that afternoon. He did not have enough to connect her with that car at that time. He said the last thing he wanted to do was locate a firearm in the white Mazda without the reasonable suspicion to search that vehicle and not be able to link it to Ioannidis.
I accept Detective Zetter’s evidence on this point. Furthermore, there was nothing obliging the police to search the white Mazda immediately. There was nothing wrong with Detective Zetter pausing and considering what tactical move would be made next. That is precisely what he did. He identified the third person in the group at that first scene as Burns and then conducted intelligence searches in regard to the relevant people.
Detective Zetter’s suspicion: intelligence reports
Another factor relied upon by Detective Zetter to form his suspicion was information obtained following his search of intelligence reports using the computer in his police car. They were reports ending in numbers 972, 119, and 800.
The report number 800 was dated 16 February 2018. It referred to information suggesting that
·a male known as Roman is currently manufacturing methylamphetamine for a male known as Ben who lives in St Peters;
·Roman is in debt to Ben;
·a male known as Burnsey distributes the methylamphetamine for Ben and is currently in possession of a number of Ben’s vehicles;
·Ben uses extortion methods to influence people.
The assessment in the report was that Roman was believed to be Baftiroski, Ben was believed to be Bernhardt and Burnsey is known be Michael Burns.
The report number 119 was dated 23 February 2018. The summary of the report was that Burns and Lilly Rozaklis are associates and it is likely that Burns is supplying Rozaklis methylamphetamine for her to deal. The report was based on a Facebook page which linked the two of them. Under the Assessment section of the report, there is reference to other intelligence reports, including reports that
·Burns was involved in the distribution of methylamphetamine for the Hells Angels member Bernhardt who gets the methylamphetamine from Baftiroski who manufactures it;
·a car rented by Baftiroski seen at Burns’ address;
·Burns was working as a driver for Ben Bernhardt;
·Burns was part of a syndicate importing methylamphetamine.

The other report number 972 was dated 11 March 2018. There was information suggesting that persons, including Burns, were putting pressure on another to sell methylamphetamine for them. The summary was that Burns believed he was being investigated by the police and was trying to keep a low profile.
Detective Zetter’s reliance upon the intelligence reports was criticised on the basis of their reliability, particularly because of the unknown sources for the information. For example, Mr Edwardson QC made the point that the one report which mentioned Baftiroski referred to only a belief that the person called Roman was Baftiroski. There was no basis set out for that belief in the report.
I do not consider reliance upon the reports as one of several factors to formulate a relevant suspicion (as opposed to a belief) to be problematic. The reports alone could not sustain a relevant suspicion necessary for a search of the person or a car associated with that person. Here, the reports provided general intelligence about the association of Burns, Baftiroski and Mr Bernhardt with each other and with drugs.
Detective Zetter’s suspicion: car connected to Baftiroski in Alison Street
A check on a Toyota Hilux was conducted which was parked in proximity of 6 Alison Street, the address for Burns. Detective Zetter was advised that it was hired by Baftiroski for about one month from Avis.
Detective Zetter’s suspicion: Ioannides returned to white Mazda
At about 3.45pm, Detective Zetter became aware that Ioannidis had gone to the white Mazda and Detectives Jamieson and Briggs were going to stop her car.
Detective Zetter’s suspicion: second scene
When Detective Zetter arrived at the second scene he spoke to Detective Jamieson who told him that Ioannidis, after seeing the police, had attempted to drive off in the Mazda but she had managed to stop the car. Detective Briggs informed him that Baftiroski moved to the left side of the vehicle, ‘bent down near the vehicle’ and it was unknown if he tried to discard something. Detective Zetter suspected that all the players had come together and there had been a drug transaction.
There are three parts to the criticism of Detective Zetter’s reliance on the information from Detective Jamieson and Detective Briggs.
The first is the reliability of Detective Zetter’s evidence that he received that information from Detective Briggs at that time. Detective Zetter agreed in cross‑examination he had made no note of the information. Mr Edwardson QC suggested he was trying to reconstruct the bases for his suspicion, which he denied.
Further, Mr Edwardson QC submitted that if Detective Zetter had been told by Detective Briggs about that specific location (bending down near the left side of the vehicle) and what Detective Briggs suspected had happened, then that is where he would have looked. Instead he searched inside the car, in the front left passenger foot‑well.
Second, it is not clear from the evidence whether Detective Zetter realised the male handcuffed on the ground was Baftiroski before he searched the Kluger. He gave evidence he found out the male was Baftiroski when he arrived at the scene and spoke to Detective Briggs. Baftiroski’s personal details are recorded in his notes before his note about the location of drugs in the car.
There is no evidence from Detective Briggs about precisely when he found out the male was Baftiroski. In his notes, he recorded Ioannidis being present with an unknown large male. The video recording was activated at 3:50pm. Baftiroski can be seen lying face down on the footpath. On the video, Detective Briggs did not ask Baftiroski for his details until Baftiroski was sitting up against the fence and well after the search had commenced. There is no evidence from Detective Briggs that he asked Baftiroski for his details or became aware of his identity before the video was commenced.
Third, the behaviour of the two accused at the second scene.
In my view, the information passed on by Detective Jamieson and Detective Briggs to Detective Zetter about the behaviour of each of the accused upon police arrival was important in the formation of his suspicion. For the prosecution, Mr Phillips submitted there would be a reasonable suspicion to search even if each of the accused had not attempted ‘flight’ upon the police arrival. I do not agree. If the accused had stood their ground upon the arrival of the police, and assuming Detective Zetter knew the other male at the second scene was Baftiroski, the high water mark of the information he had prior to his search was the presence of two people who were generally associated with illicit drugs standing together in the afternoon in a suburban street behind a car which had its boot open (but nothing visible inside), and earlier one of those two people (Ioannidis) had been with others who were generally associated with illicit drugs. I do not consider a suspicion to search the Kluger would be reasonable in those circumstances.
There is no doubt that police observations of the behaviour and demeanour of persons at the scene prior to a search are relevant factors in the formation of a requisite suspicion to search. Mr Phillips referred to a number of authorities in which police observations of the person’s demeanour was relied upon by the searching officer. In R v Fazio[6], the appellant was nervous, shaky, beginning to sweat and expressed a wish to leave the house; in R v Rogers[7], the behaviour and demeanour of the appellant at the scene after he was stopped for speeding was consistent with the effects of a drug (speaking rapidly, making rapid movements, perspiring) and his extreme nervousness suggested he had something to hide; and in R v Dam and Nguyen[8], the apparent nervousness of the appellant and another was a relevant factor.
[6] (1997) 69 SASR 54
[7] (2011) 109 SASR 307
[8] [2015] SASCFC 131
Here, the assessment of the demeanour of the accused at the second scene prior to the search is contaminated by the fact that Detective Briggs immediately drew his firearm when he arrived. It would be artificial to delve into the minutiae of the behaviour of each of the accused frame by frame to try and isolate the behaviour before the firearm was drawn from the behaviour after the firearm was drawn. As Detective Briggs said, ‘this all happened super quick’.
Detective Briggs gave evidence he saw Baftiroski go immediately around the Kluger; he could not say whether Baftiroski would have seen the firearm or not. Detective Jamieson gave evidence that she saw the two accused in close proximity to each other and within a car length of the open boot of the Kluger. As she drove past them and parked, she saw they both moved away from the Kluger in different directions. I am able to find that upon the police car arriving on the scene and before the firearm was drawn, there was some movement by the appellants away from each other, but that is all.
The further difficulty arises from my view that Detective Briggs’ action in drawing his firearm was excessive. On his own evidence, he thought an offence had been committed when he drew his firearm but did not know what offence had been committed. The drawing of a firearm by police in those circumstances cannot be condoned. Consequently, it would not be appropriate for reliance to be placed upon the behaviour of the accused after that occurrence to afford the police the requisite suspicion to search.
In addition, on Detective Zetter’s own evidence, there was no basis for a suspicion in regard to the Kluger. He conceded he had no intelligence at all in respect of the Kluger. He did not know how or when it got there or who drove it. He had no information that either accused had accessed it or had anything to do with the car at all. He did not speak to either of them to establish whether there was a connection between them and the car prior to searching the car. He only had information about their proximity to the car when the police first got there.
In my view, Detective Zetter’s search was based on speculation that any substance or equipment that would afford evidence of an offence against the CSA was in the Kluger. There is a difference between belief, suspicion and speculation about the existence of a fact:-
A suspicion that a fact exists is less certain that 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 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.[9]
[9] R v Nguyen (2013) 117 SASR 432 at [21], citing Bain v Police (2011) 121 SASR 10, [28]-[29]; R v Rogers (2011) 109 SASR 307, [22].
If I am wrong and there was a suspicion, as opposed to speculation, in relation to the Kluger, I do not consider it was reasonably held:
The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.[10]
[10] R v Nguyen (2013) 117 SASR 432 at [22]
In my view, the police were overly hasty that afternoon and ended up acting excessively, without a proper basis and unlawfully. Essentially, they ‘jumped the gun’. In making that finding, I acknowledge that events can unfold rapidly, that policing can be fluid and dynamic. I think it was appropriate for the police to decide to watch and wait to see if Ioannidis returned to the white Mazda. Similarly, they cannot be criticised for accessing intelligence information on the people observed and their association with illicit drugs. That is their job. Nor could they be criticised, once they had that further intelligence, for deciding to monitor the situation for possible drug offending as well as the firearm issue. Detective Zetter cannot be criticised for thinking, having read the intelligence reports, that he had ‘all the players’ together.
However, by 3:38pm, Detective Zetter said over the radio, ‘I think we need to hit this when they come back’. Following on from that declaration over the radio, Detective Briggs acted hastily and excessively in drawing his firearm. The detention of both accused was unlawful.
Detective Zetter’s search of the Kluger was unlawful. It was speculative, or in the alternative, his suspicion was not reasonable. The observation of two people generally known to be involved in drug dealing near a car who move away from each other upon police arrival, cannot form the basis for a reasonable suspicion to search that car, particularly when there is no information connecting them to the car. Detective Zetter’s haste was also evident from his immediate search of the Kluger, rather than dealing with the arrest situation and the rights of the accused. He conducted the search without organising for video to be obtained of the search. That in itself is not a basis for excluding evidence of the search, nor is it necessary for police acting on a reasonable suspicion to video the search. However, the accused had been arrested. They were entitled to exercise their s 79A rights, if they so choose, and have someone present during that search.
Discretion to exclude
The unlawful search of the Kluger gives rise to a public policy discretion to exclude the evidence obtained from the search. There are a number of factors to be balanced.[11] The alleged offending is serious and the cogency of the evidence is not affected by the illegality. However, I do consider that Detective Zetter acted recklessly. Although he was not expecting what he came upon at the second scene, he had earlier determined to ‘hit this’. He did not stop to consider Detective Briggs’ actions or the consequences of the arrest and the rights of the accused before he searched the Kluger.
[11] Bunning v Cross (1978) 141 CLR 54.
Having particular regard to the principal considerations of ‘high public policy’, I exercise my discretion to exclude the evidence of the search of the Toyota Kluger. It is important that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends.[12] 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.[13] Curial approval cannot be given to the use of evidence obtained from a speculative search of a car which followed an excessive use of a firearm and the unlawful detention of the accused.
[12] R v Rockford (2015) 122 SASR 391 at [39], [41].
[13] Pollard v The Queen (1992) 176 CLR 77 at 202-203.
Drugs found outside Toyota Kluger
Detective Zetter located drugs outside the Toyota Kluger in the gutter, next to the rear left wheel (counts 2, 4 and 7). Those drugs were not part of the search of the Kluger and are not therefore the subject of the exclusionary order.
Search of Burns’ house
Detective Power executed his general search warrant at Burns’ home address at 4:24pm. One of the factors in his formulation of a reasonable suspicion to search the house was the arrest of the two accused at the second scene with drugs and cash. It is not possible to dissect the information regarding the drugs/cash in the car from the drugs next to the car. The prosecution conceded that this search would be tainted if the search of the Kluger was found to be unlawful. I agree with that concession.
Having found the search of the house to be unlawful, it does not necessarily follow that the discretion should be exercised to exclude the evidence of the search. However, in these circumstances, I exercise my discretion to exclude the evidence obtained from the search of Burns’ house. The arrest of the two accused with drugs and cash was a major factor in the formulation of the reasonable suspicion to search the house. Without that occurrence, I do not consider that any search would have been conducted. Further, the search at the house flowed on from and occurred within approximately 30 minutes of the illegality at the second scene. It was so closely connected with the unlawful conduct at the second scene both in substance and in time that use of that evidence at trial would effectively amount to curial approval of the police conduct at the second scene.