R v BENTON - [2020] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BENTON
[2020] SADC 116
Reasons for Ruling of His Honour Judge Cuthbertson
24 August 2020
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
PROCEDURE - POWER TO STOP A VEHICLE - SEARCH OF PERSONS, PROPERTY OR PREMISES - REASONABLE SUSPICION - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE OBTAINED AS A RESULT OF AN UNLAWFUL SEARCH
Accused charged with trafficking in a controlled drug - Police stopped vehicle in order to ascertain identity of driver - Whether police had power to stop vehicle - Accused fled from vehicle and was pursued and detained - Whether the accused seemed to be acting suspiciously in vehicle before fleeing - Whether reasonable grounds existed to justify searching the accused and the vehicle pursuant to s 68 of the Summary Offences Act 1953.
Application by prosecution to lead evidence of discreditable conduct evidence. The prosecution sought leave to lead evidence of the finding of certain objects which had a tendency to demonstrate the accused had been dealing in methylamphetamine on other occasions than that charged.
HELD:
1 The stopping of the vehicle and the search of the accused, the vehicle and the premises of the accused were lawful. If unlawful the discretion should be applied to admit the evidence of the fruits of the search notwithstanding.
2 Application to exclude the evidence obtained as a result of the search is dismissed.
3 The discreditable conduct evidence was admissible to show the accused was in the business of selling drugs.
Road Traffic Act 1961 (SA) ss 5, 40H, 40V; Controlled Substances Act 1984 (SA) s 52(9); Summary Offences Act 1953 (SA) s 68(1); Evidence Act 1929 s 34P, referred to.
R v Falzon (2018) 264 CLR 361, considered.

R v BENTON
[2020] SADC 116

The applicant is presented on an information dated 6 December 2019 with Trafficking in A Controlled Drug. This charge arises out of a search of the applicant on 30 January 2019 when he was the passenger in a Nissan Navara in Salisbury Downs.
APPLICATION TO EXCLUDE EVIDENCE
By amended Rule 49 application dated 27 March 2020, the applicant applies for exclusion at the trial of all material located as a result of the stopping of the vehicle and the direction to the applicant to alight from the vehicle and from the ensuing search on the grounds that the stopping and search were illegal.
The applicant was a person of interest in an illicit drug trafficking operation called Operation Hyades. Detective Brevet Sergeant Nelligan and Senior Constable Woodhouse received information that the applicant was using taxis and other persons’ vehicles to conduct drug deals.
THE SITUATION
On the evening of 30 January 2019 Police attended the vicinity of his house at Salisbury Downs to observe his address, and at about 8:46pm Nelligan observed a Nissan Navara drive past their unmarked police vehicle. Nelligan recognised the vehicle as having been at the applicant’s address on numerous occasions before. The officers followed the vehicle before activating the police lights and stopping the vehicle.
POWER TO STOP A VEHICLE
The police had wanted to ascertain the identity of persons in connection with vehicles seen in the vicinity of the applicant’s premises.
The power to stop a vehicle resides in s40H(1)(a) of the Road Traffic Act 1961 (SA).
The power can only be exercised “in connection with exercising other powers under a road law”. The “other powers” include the powers provided under s 40V of the Road Traffic Act 1961 (SA). That is, inter alia, to get personal details of a person who “is or may be a responsible person”.
A responsible person is given a wide definition under s 5 of the Road Traffic Act 1961 (SA) and includes the driver or person in charge of a vehicle.
I find the police had appropriately exercised the power to stop the vehicle.
POWERS OF SEARCH
The applicant was sitting in the front passenger seat holding a chihuahua dog when Nelligan approached the vehicle. Woodhouse began conducting driver checks on the driver, and Nelligan spoke to the applicant, observing that he appeared to be nervous, shuffling in his seat and appeared to push something under his crotch.
The power to search vehicles in the case of illegal drugs being suspected comes from s 52(9) of the Controlled Substances Act 1984 (SA):
(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.
The power to search an individual comes from s 68(1)(b) of the Summary Offences Act 1953 (SA) which reads as follows:
68—Power to search suspected vehicles, vessels, and persons
(1)     A police officer may do any or all of the following things, namely, stop, search and detain—

(a) . . . . . . . . .
(b) a person who is reasonably suspected of having, on or about his or her person—

(i)    stolen goods; or
(ii)     an object, possession of which constitutes an offence; or
(iii)    evidence of the commission of an indictable offence.
The defence assert that the search that was conducted was illegal because Nelligan had no reasonable cause to suspect the presence of drugs.
Before searching the vehicle Nelligan told the applicant that he would be searched.
When Nelligan told the applicant to jump out of the car so that he could be searched, Nelligan had a right to search him pursuant to s 68(1)(b) of the Summary Offences Act 1953 (SA).
I accept both officers as witnesses of truth as to the evidence which was given.
Nelligan had a right to search the vehicle as well because the information that he had already received namely, that the applicant was trading in drugs and the fact that he appeared nervous and was fidgeting in his seat and in his crotch area as if he was pushing something under his crotch, gave the reasonable suspicion necessary to conduct a search of the vehicle and/or the person.
There was a right to search both the vehicle and the person of the applicant because I accept that a reasonable suspicion attached to both as the police officer could not have been sure that the object of his reasonable suspicion was hidden in the vehicle or on the applicant as the object was being secreted either in the vehicle or on the person.
When the applicant stepped out of the vehicle he made a movement indicating that he might be intending to run away. Nelligan took hold of his right upper arm and walked him to a large solid metal fence. He did not say to the applicant that he was under arrest but he had the power to detain him under s 68(1) of the Summary Offences Act 1953 (SA).
Any failure to advise the applicant that he was under detention would not have made the detention unlawful as there was insufficient time to tell him.
The applicant struck Nelligan and took off.
Nelligan chased and caught him and handcuffed him and searched him. He was entitled to do this because s 68(1) of the Summary Offences Act 1953 (SA) gave him power to detain a person to be searched. In addition, the accused had committed the offence of Assault.
While walking back to the vehicle Nelligan was notified by Roberts that he had located a large bag of suspected crystal methylamphetamine. Thereafter there was undoubted power to search the applicant’s premises and the vehicle that the applicant was travelling in because a reasonable suspicion that evidence of drugs might be found therein would arise because there was a reasonable suspicion the drugs were discarded by the applicant as he fled.
THE CRYSTAL METHYLAMPHETAMINE
The question is whether the prosecution are entitled to adduce evidence of the finding of the large bag of crystal methylamphetamine located on the other side of the fence at No 44, as it is asserted that it was located as a consequence of an unlawful arrest.
The circumstantial evidence would suggest the methylamphetamine was discarded by the applicant as he fled from Nelligan. On that scenario, the methylamphetamine was located as a result of the applicant fleeing a lawful search.
The location of these drugs was not obtained by any illegality by the police so that the evidence of the finding of them is admissible.
ALTERNATIVE EXERCISE OF DISCRETION
If I am wrong about this I would exercise my discretion to allow the evidence.
I would do so for the following reasons:
1The search of the vehicle and the search of the applicant are intimately and inextricably interwoven because the activity which would have created a suspicion in the mind of Nelligan that there was material present which would have afforded evidence of the commission of a crime could have been material in the car or on the person of the applicant. At the relevant time the applicant was sitting in the car apparently fiddling with something in the vicinity of his crotch. The police officer could not have been able to discern whether he put it in his clothing or left it in the car when he got out.
2I do not think the police officer was deliberately flouting the law. The officer would have needed the applicant out of the car in order to search the vehicle. He indicated he was going to search the person of the applicant.
3The drugs, must have been in the car initially and it could be argued that the car which was to be searched for the presence of drugs had been interfered with by the accused alighting and taking out of the car incriminating material which had been a short time earlier located in the car.
4The evidence is relevant to a very serious crime namely Trafficking in a Controlled Drug for which the penalty is a fine of $50,000 or imprisonment for 10 years or both. There was no deliberate police illegality.
CONCLUSIONS
1The search of the accused was a lawful search.
2In the alternative any illegality was minor or fleeting and the drugs that were located were highly relevant to serious offending.
The evidence of the location of the drugs is admissible.
APPLICATION TO ADDUCE DISCREDITABLE CONDUCT EVIDENCE
By application dated 16 October 2019, the prosecutor has filed an application under s 34P of the Evidence Act1929 (SA) to adduce evidence of discreditable conduct of the applicant, namely location of the following items:
1Cash in the amount of $550;
2Notepad with handwritten tick lists;
3Mobile phone containing photograph of a handwritten tick list;
4Mobile phone containing photograph of crystalline substances and pricing for the substances.
All of the above items were located in the premises of the applicant upon a search following the discovery of the applicant in a motor vehicle in circumstances from which it might be inferred that he had possession of a quantity of methylamphetamine. The material referred to demonstrates that the applicant was in the business of dealing in drugs and had a tendency or propensity to sell drugs as part of that business. These facts make it more likely that the applicant was in possession of the drugs, that his intention was to sell the drugs and that any innocent explanation for the possession of the drugs can be rejected.
In my view, the evidence has strong probative value and the permissible use outweighs any impermissible use and can be kept sufficiently separate to remove any appreciable risk of the evidence being used for an improper purpose.
RELEVANCE OF SPECIFIED ITEMS
The possession of the cash is relevant evidence because it tends to demonstrate that the applicant was trafficking in methylamphetamine. Cash is frequently located in the presence of persons trading in expensive drugs either as the proceeds of sales of the drugs or as part of a cash float in relation to trafficking in that drug.
Similarly, the handwritten tick list and photo of the tick list from the mobile phone are relevant evidence. Tick lists are indicia of drug trafficking and can be probative in proving that the author was in the business of drug trading.
The photograph of crystalline substances and pricing for the substances taken from the applicant’s mobile phone has similar probative value in its tendency to show that the applicant had an interest in drugs and was in the business of selling them
In R v Falzon (2018) 264 CLR 361 the High Court said as follows:
Where an accused is found in possession of a prohibited drug and is charged with its possession with intent to sell, proof that the accused was, at the time of possession, engaged in a business of selling drugs or drug trafficking is evidence logically probative of the fact that the accused’s purpose in possessing the drug on that occasion was the purpose of sale. Accordingly, as has been established by a succession of Australian intermediate appellate court decisions, evidence that an accused who is found in possession of a prohibited drug is also found in possession of the accoutrements of a drug trafficking business, such as scales, resealable plastic bags, firearms, a multiplicity of mobile phones or significant quantities of cash, is admissible in proof of the charge. As Gleeson CJ explained in Sultana [6], it is circumstantial evidence which, in conjunction with the fact of possession and, possibly, other evidence, may found an inference that the accused was engaged in the business of selling drugs. And that is so notwithstanding that such evidence may also be indicative of a tendency towards crime.[1]
[1] See para 1 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
CONCLUSION
I am satisfied that the probative value of the evidence admitted for the purposes I have outlined substantially outweighs any prejudicial effect it may have on the applicant.
The evidence tends to demonstrate an interest in methylamphetamine and makes it more likely the applicant possessed the methylamphetamine located at the other location and was carrying on the business of trafficking drugs.