R v Borg - [2018] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BORG
[2018] SADC 14
Ruling of Her Honour Judge McIntyre
27 February 2018
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused has been charged on information with two counts of trafficking in a controlled drug. The charges arise out of a search of the accused and the accused’s vehicle on 9 July 2016. He has applied under Rule 49 of the District Court Criminal Rules for orders that the evidence of the two searches be excluded from the evidence to be led at trial on the basis that it is said that the search and seizure in each case was unlawful. He further seeks exclusion of the record of interview held on 9 July on the basis that it is said that the interview is tainted by the unlawfulness of the searches that came before it.
Held:
(1) The search of the accused and the accused's vehicle was lawful.
(2) The interview was not tainted by unlawfulness.
(3) Application dismissed.
District Court Criminal Rules R49; Controlled Substances Act. s52; s56(6); s52(9), referred to.
R v Nguyen (2013) 117 SASR 432 at 437; R v Willingham (No.2) [2012] [SASCFC] 104; Bunning v Cross (1978) 141 CLR 54, considered.

R v BORG
[2018] SADC 14

The accused has been charged on information with two counts of trafficking in a controlled drug. The charges arise out of a search of the accused and the accused’s vehicle on 9 July 2016. He has applied under Rule 49 of the District Court Criminal Rules for orders that the evidence of the two searches be excluded from the evidence to be led at trial on the basis that it is said that the search and seizure in each case was unlawful. He further seeks exclusion of the record of interview held on 9 July on the basis that it is said that the interview is tainted by the unlawfulness of the searches that came before it.
For the following reasons I dismiss the application.
Summary of facts
Four police officers gave evidence on the voir dire as did the accused. It is uncontentious that the police attended at an apartment in Sturt Street in the city on Saturday evening 9 July 2016. The police intended to search the premises under the authority of a general search warrant. The police had received information concerning Dylan Borg, the accused’s brother. That information was that Dylan Borg was trafficking in MDMA, that he lived in the apartment with his girlfriend, that he drove a silver/black Mazda 2 and that he was dealing regularly at HQ Complex on Saturday nights. Police conducted further investigations. Those investigations supported the information received by the police. On the basis of this information Detective Brevet Sergeant Guerin, who held the general search warrant[1], said that he had reason to believe that there was evidence of trafficking in a controlled drug at Apartment 305/129 Sturt Street Adelaide. Senior Constable Kepka completed the record of general search warrant use prior to the search[2]. No issue was taken with the use of the general search warrant or the basis for its use during the voir dire.
[1] Exhibit VDP1
[2] Exhibit VDP2
Following a briefing, the police attended at the Sturt Street apartment at about 8.15 pm on Saturday 9 July 2016. No-one answered the door. A short time later the accused came up the lift and went to the apartment. Police had a conversation with him. There is some dispute as to precisely what was said in that conversation outside the apartment but it is uncontentious that the accused told police that he was Dylan Borg’s brother, that he was looking after the premises and that his brother was away. The accused had a key to the apartment and he opened the door for the police. After the accused let the police into the apartment the police searched the accused and his vehicle. Brevet Sergeant Tiller searched the vehicle and Senior Constable Rusak searched the accused. They each say that they did so under the authority of s.52 of the Controlled Substances Act 1984. (“CSA”).
The search of the vehicle yielded the drugs that are the subject of the two trafficking counts. Police found 99 capsules in the centre console of the vehicle. Upon analysis 74 of the capsules contained approximately 5.6 grams of powder with approximately 3.1 grams being MDMA. These drugs are the subject of count 1. The other 25 capsules contained approximately 1.5 grams of powder containing MDA, this is the subject of the count 2. The search of the accused yielded $350 in cash in the accused’s wallet and a mobile telephone. The telephone was subsequently analysed and found to contain material that the prosecution contends relates to drug trafficking.
In the apartment the police found $2,490 in cash on the kitchen bench, $18,100 in cash in the main bedroom and two capsules containing illicit drugs in a spare bedroom. The accused subsequently told police in his interview that the cash located in the kitchen was his but that the cash in the bedroom was his brother’s. The accused’s brother was drug diverted for the two capsules in the spare room.
Evidence
Detective Brevet Sergeant Guerin
Detective Brevet Sergeant Guerin said that he attended the apartment complex at 129 Sturt Street Adelaide with Senior Constable Kepka, Detective Senior Constable Maskall, Senior Constable Rusak and Brevet Sergeant Tiller. On arrival Guerin, Kepka and Tiller went to level 3. They knocked on the door of unit 305. There was no response and they formed the view that no-one was home. The lift came up that level. A male exited the lift with two other police officers Maskall and Rusak. Detective Guerin said that the male came to apartment 305 ahead of the two police officers. Detective Guerin said he had the following conversation:[3]
Q.What was said in that conversation.
A.I said 'What is your name?', and he said 'Joshua Borg'. I said 'We are the police and we are here to conduct a search of the unit.' He said 'It's my brother's unit.', and I said 'Is your brother Dylan?', and he said 'Yes.' I said 'Well Open it up and we'll explain it to you inside'. Yeah.
[3] Tx p8
The accused removed a key from his pocket and opened the front door. Detective Guerin said that as he entered the apartment he saw what appeared to be a large amount of cash sitting out in the open on a kitchen bench. It was mostly $50 notes. He then observed other officers conducting a search of the bedroom, living area and kitchen.
In cross-examination Detective Guerin said that the extent of his conversation with the accused was as relayed in his evidence in chief apart from explaining the general search warrant to the accused. He believed that the accused was the first person inside the apartment followed by the police. He thinks that Tiller and Kepka identified the accused by asking for his driver’s licence and that this occurred near the kitchen island bench inside the apartment. He was not involved in the search of the accused or his car.
Senior Constable Kepka
Senior Constable Kepka gave evidence that he, Detective Guerin and Officer Tiller went to level 3 of the multi-story apartment complex on Sturt Street. He had previously called Senior Constable Rusak and Detective Brevet Sergeant Maskall to attend the scene to assist; they remained downstairs. There was no answer when they knocked on the door of apartment 305. They formed the view that no-one was home. Senior Constable Rusak and Detective Maskall came upstairs via the elevator with a person that he subsequently came to know as the accused Joshua Borg. He recalled Brevet Sergeant Guerin having a conversation with the accused outside the apartment as follows:[4]
A.I remember Thomas Guerin had a conversation with Joshua Borg which Joshua Borg said he's looking after the apartment for his brother Dylan and Thomas Guerin advised him we were going to search the premises under his authority of the general search warrant.
Q.Was that the extent of the conversation that you overheard.
A.No, Tom also said after explaining the general search warrant, he said 'Are we going to find anything inside?', Joshua said 'Probably drugs', he said 'Why is that?', and he said 'That is what my brother does'.
Q.You weren't a party to that conversation.
A.No.
Q.That was just something you overheard.
A.That's correct.
[4] Tx p19
The accused had a key and let them into the apartment. They all entered the apartment. Senior Constable Kepka commenced searching the bedrooms. He was not involved with the search of either the accused or his vehicle. He said that there was a pile of cash located on a kitchen bench and that he observed this when they went into the apartment. He said that it was visible in the middle of the apartment for everyone to see. He was cross-examined about the conversation outside the apartment and he answered as follow:[5]
[5] Tx p22 - 23
Q.How far were you away from Detective Brevet Sergeant Guerin and Joshua Borg when they had that short conversation.
A.Probably about 2 m.
Q.During that conversation, Joshua Borg said his name.
A.I can't remember him saying his name.
Q.But it's during that conversation he said this is his brother's unit and he's come to look after it or he's looking after it.
A.That's correct.
Q.Did you hear Detective Brevet Sergeant Guerin say 'Is your brother Dylan Borg?', or 'Is your brother Dylan?'.
A.I can't remember.
Q.Do you agree he may have said that.
A.He may have.
Q.Joshua Borg's answer was yes.
A.I can't remember, I'm sorry.
Q.Can I suggest this: that Detective Brevet Sergeant Guerin then said 'Open up the apartment' or 'Open it up and we'll explain to you inside'.
A.That may have happened, I can't remember that conversation, that part of it.
Q.You mentioned that you recall Detective Brevet Sergeant Guerin saying something along the lines of 'Are we going to find something inside that you're going to be worried about?'. Can I suggest this: that it was Officer Tiller who asked that question later.
A.I remember it being Thomas Guerin that asked that question.
Q.Do you accept it may have been Officer Tiller or are you pretty sure.
A.I'm pretty sure.
Q.Can I suggest this: when you heard it, it wasn't outside the apartment.
A.It may not have been.
Q.Do you agree you may have heard that being said after you'd entered.
A.It's a possibility.
Q.You certainly never made a note of the conversation you heard between Detective Brevet Sergeant Guerin and Joshua Borg.
A.No, I didn't make a note of it.
Q.Do you agree - this is not a criticism - but during the record of interview you had with Joshua Borg at the house and Grenfell Street, you didn't run through that conversation with him.
A.That's correct, I didn't.
Senior Constable Leon Rusak
Senior Constable Leon Rusak is the officer who searched the accused. He attended the Sturt Street apartment with Detective Maskall. They waited downstairs while Kepka, Tiller and Guerin went upstairs. He became aware that the officers upstairs could not gain access to the unit. There was some discussion about whether they were going to try and access the unit in another way. He and Maskall got in the lift to go upstairs with another man. He had a brief conversation with that man, who subsequently turned out to be the accused. Rusak asked what floor the man was going to; he said he was going to the third floor. Senior Constable Rusak asked him which apartment; the man replied that it was number 3. They accused got out ahead of them and walked to the apartment. He and Maskall followed.
Senior Constable Rusak saw Detective Guerin having a conversation with the man in which he explained his general search warrant. He said that was all he overheard of the conversation with Guerin. He said he also overheard Tiller ask the man whether there were likely to be drugs in the unit. Rusak could not recall exactly what was said but said that the man responded along the lines that there would be drugs in the unit.
The door was then unlocked and they went into the unit. Rusak said that upon entry into the main living area he saw an island bench on the left hand side of the door between the kitchen and the living area and on the bench he noted a pile of cash. He said it was predominantly $50 notes and he guessed that it was about $2,000 to $3,000. He then spoke to the accused and obtained his personal details. Rusak then decided to search the accused utilising his powers under s.52 of the CSA.He said that he did this for a combination of reasons; he was aware of the information that a person or persons residing in the unit were trafficking drugs; he had an unusual conversation with the accused in the lift in which the accused refereed to unit 3 which didn’t exist, there was the preliminary conversation with Tiller upon entry with respect to drugs in the apartment and the large amount of cash that he saw that he saw on the island bench.
He was cross-examined as follows: [6]
[6] Tx p33 – line13-35
Q.Can I suggest this: he said 'I'm going to my brother's place', something along those lines.
A.Again, I can't recall.
Q.He said it was on the third floor, do you agree.
A.He said he was going to level 3.
Q.Level 3.
A.Yes.
Q.Can I suggest this: that that was his use of the number 3, saying level 3 rather than unit 3.
A.No, the exact question was 'What unit are you in?', and he said '3'.
Q.You don't think you might be mistaken about that.
A.No.
Q.You agree you didn't make a note of that in your notes at the time.
A.That's right.
Q.While you're in the lift and before you got to the top, neither of you identified yourself as police officers, did you.
A.No, however, we were wearing police lanyards and our equipment.
Q.And you had a belt on, is that right.
A.And a belt on with our equipment, that's right.
Senior constable Rusak said he was not sure if Brevet Sergeant Tiller’s question about drugs on the premises prior to entry or upon entry to the unit. He did not overhear a conversation regarding a car. He said that the search of the car occurred sometime after he searched the accused.
Brevet Sergeant Neil Tiller
Brevet Sergeant Neil Tiller attended a briefing by Senior Constable Kepka following which they attended at the apartment. He said he, Kepka and Guerin attended at the apartment. They knocked on the door. There was no answer. Then the lift door opened and a man walked towards them carrying a McDonald’s container and a set of keys. Brevet Sergeant Tiller then explained what happened as follows:[7]
[7] Tx p39, line 24 – p40, line 4
QHe's walked towards you, what's occurred from there.
A.So it was explained by the officers that we were there to carry out a search at that address and it was at that point that Joshua said 'I suppose' - or words to the effect of 'I suppose you've come for my brother's drug dealing or drug trafficking', or something along those lines, in relation to drugs essentially and his brother.
Q.Were you involved in that conversation.
A.I just overheard it.
Q.Do you recall who the conversation was with.
A.I believe it was Guerin, because he was explaining the reason why we were present, but I can't be certain.
Q.How is it that you came to decide to explain the reasons for the search to the male that entered.
A.So it was explained that we were there to carry out a search at the address and it was at that point that Joshua explained that his brother was away and that he was looking after the unit for his brother and he used keys to open the door that he had with him.
Tiller said that as he walked into the premises saw a large amount of cash on a benchtop in the kitchen. He said it was in large denominations; $50’s and $20’s. He thought that there was at least $2,000 to $3,000 but he was not party to counting the cash. He then gave evidence as follows: [8]
[8] Tx p41, line 2 – p42, line 14
Q.Once you've come back and seen the cash, what was it that you did next.
A.So based on the information that I had been provided with by Kepka before entering the premises and also seeing the large amounts of cash in the actual unit itself, just strewn on the countertop, I suppose it was the blasé way that Josh mentioned that he was aware that his brother was involved in drug issues and the trafficking, but I - and seeing him with a fast food container that I assumed he had purchased nearby, which the nearest one was on Hindley Street, which is indicative of drug trafficking, I suspected that Joshua was also involved in drug trafficking, so I intended to search his car.
Q.When you made that decision, where was Mr Borg.
A.He had been searched at this time and I believe it was by Rusak, but I can't be a hundred percent certain on that, but he was searched and he was sat on a couch which is directly opposite the kitchen.
Q.At the time did you know what had been located in that search.
A.I did see other cash and I suspected that had come from the search, but I didn't see the search so I couldn't be sure.
Q.How was it that you knew there was a car at the premises.
A.So when Joshua opened the front door to the unit I saw that he had a set of car keys on the same bunch that he opened the front door with and then when I came to speak with him whilst he sat on the couch, right by the side of his fast food takeaway that he was eating was the same set of keys. So I had taken possession of those and asked him a number of questions.
Q.Do you recall what those questions were.
A.I've made a note of these questions and also during the interview that I later conducted with Joshua I asked if they were an accurate version of what was said and he's actually signed my notebook to say they were. So I asked 'Whose is this?', referring to the car keys I picked up from the table, and he referred to me 'Mine', and I said 'Where's it parked?', and he replied 'Outside', and I replied 'I'm going to search it, is there anything in there that would cause you any concern?', and he replied 'Yeah, I've got some MDMA', which I took to mean drugs, and I asked 'Where's that?', and he explained 'In the centre console'.
Q.When was it that you made the decision to search the car.
A.As I've picked up the car keys, I intended to search the car, because I believed Joshua was also involved in drug trafficking.
Tiller then described locating drugs in the accused’s car in the centre console between the front passenger and driver seat as indicated by the accused. He found a large bag containing a large number of tablets. He took some photographs.[9]
[9] Exhibit VDP3
In cross-examination Tiller was asked as follows:[10]
[10] Tx p44, line 15 – p45, line 23
Q.You mentioned overhearing a conversation between Joshua Borg and Officer Guerin.
A.Yes, I believe it was Guerin. I know there was a conversation explaining the presence and the reason why we were there.
Q.Do you recall whether you heard the whole conversation.
A.I think that's difficult for me to say, yeah.
Q.Did you hear Officer Guerin ask Joshua Borg his name.
A.Again, I can't recall.
Q.Officer Guerin told Mr Borg why the police were there.
A.Yes.
Q.That was to conduct a search of the unit.
A.Yes.
Q.Did you hear Joshua Borg tell Officer Guerin it was his brother's unit.
A.Yes, I did, yes.
Q.Did he also say that he was looking after it while his brother was away, did you hear that.
A.I remember him saying that, yes.
Q.Did you hear Officer Guerin ask Mr Borg whether his brother's name was Dylan.
A.I can't recall.
Q.This was just a conversation between Mr Borg and Officer Guerin, wasn't it.
A.Yes, I believe so, but other officers may have spoke with Joshua.
Q.But this conversation we're talking about where Officer Guerin explains that he has a warrant.
A.Yes, that would have been Guerin's explanation of why we were there and the fact he was executing his general search warrant.
Q.Do you recall Officer Guerin saying it was on suspicion of drug trafficking, something along those lines.
A.I think what actually occurred was that there was a conversation between them both but the fact we were there to conduct a search, I don't believe that Guerin mentioned initially the drug element and that's what - when Joshua then turned round and said something along the lines of 'I'm assuming you're here to get the drugs' or something along those lines 'My brother's drugs', or something like that.
Q.Can I suggest this: you may have misheard that and Joshua Borg, in fact, didn't say that.
A.No, no, it was quite clear in the context of what he was saying. He was implying his brother - he was aware his brother was involved in drugs and that we were there to search for the drugs.

Brevet Sergeant Tiller agreed that he did not mention the conversation where the accused implied that his brother was involved in drugs in his declaration of August 2016 nor in his notes. He further agreed that he conducted a video interview with the accused at the City Watch house and during that he put the conversation about the keys in the car to the accused but did not put the conversation that he said words to the effect that his brother was dealing in drugs. He explained this by saying that it was a conversation about his brother and not related to the accused.
Brevet Sergeant Tiller maintained that he saw two amounts of cash prior to searching the car; the cash on the kitchen bench and the cash obtained from the search of the accused. He agreed that at some stage he likely took the accused’s driver’s licence off him. He agreed that it was likely that his notes about the registration of the vehicle and the fact that it was parked outside was information provided to him by the accused. He agreed that he assumed that the accused had been to the McDonald’s on West Terrace but that was not something the accused said to him.
The Accused
The accused, Joshua Borg, said that in July 2016 his brother was living in a block of apartments in Sturt Street. He said that he was vague as to the number of the apartment; he knew his way there but did not know the exact unit number. His brother had gone to Melbourne a matter of hours before he arrived at the apartment. He had been asked to look after his brother’s cat. He did not believe that he had been at the apartment earlier that day. He went to McDonald’s to get some food and then drove to Sturt Street. He noticed two police officers in the foyer. He realised that they were police officers at the time because they were both wearing lanyards and an equipment belt.
They all got in the lift and the police asked where he was going. He believes he said level 3 and may have said apartment 3 as well. He said he then walked to his brother’s apartment and was spoken to by the police. He then gave evidence as follows: [11]
[11] Tx p54, line 17 – p55, line 8
Q.Do you remember the conversation.
A.Yep, so once we've walked out, I don't know if it was officers that were with me or others that were at the door, but one of them turned around and said 'Just the man we need to see' and I just looked a bit shocked, didn't understand why, then they asked if I was Dylan Borg and I said that was my brother and then stated my name.
Q.Did they tell you why they were there and what they wanted to do.
A.Yeah, a short time after, once we got to the door, they gave me a search warrant and told me they were going to come inside.
Q.During that conversation, or any other time before you entered, were you asked about drugs being inside the apartment.
A.Not that I recall, no.
Q.Did you tell any of the officers there were drugs inside.
A.No.
Q.Did you tell them that's what your brother did.
A.No.
Q.Are you sure about that.
A.I'm sure.
Q.What makes you so sure.
A.They just - it just seems like something out of the ordinary to say, I mean that's my brother, I mean whether that was true or not, that's a bit extraordinary to say to the police, 'Yeah, that's what my brother does', I just find that a bit bizarre.
Mr Borg said that he opened the door of the apartment and they all walked inside. He was patted down and all his objects were removed from him. He could not remember having any conversations with the police prior to being patted down. He was then asked what he had been doing and he told them he had come from the drive-thru. He was searched and then an officer spoke to him about searching his car. He said it was clear that the officer was going to search his car because his car keys were in the officer’s hand. The officer asked him if there was anything in the vehicle of concern. He said yes there was MDMA.
The money on the kitchen bench was his but did not say this to police until later when he was formally interviewed. He had left it there from the previous day. He believed it was around $2,000. He left it there because he knew he was going back.
Discussion
A police officer has the authority to detain and search any vehicle or person if they “reasonably suspect” that there is any substance or equipment that would afford evidence of an offence against the CSA. The key issue in this case is whether the police had the requisite reasonable suspicion. This is a matter of a question of fact to be decided on the balance of probabilities. The onus is on the accused to establish on the balance of probabilities that the searches were unlawful.
Both counsel referred to the Court of Criminal Appeal decision in R v Nguyen[12] when discussing the concept of reasonable suspicion where it is said:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. New curiosity, speculation or “idle wondering” about the existence of the fact is not the same as suspicion that it exists.
Importantly, s.56(6) and s.52(9) of the Controlled Substances Act require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the Controlled Substances Act in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power of much of its utility, to demand material which supports the positive belief in the existence of the relevant facts (citations omitted)
[12] (2013) 117 SASR 432, 437
The general approach to be taken when assessing the reasonableness of a police officer’s suspicion is to first ascertain whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable.[13] The suspicion must be entertained at the time the search is undertaken, it must attach to the specific person or vehicle and there must be a rational connection between the supporting material and the suspicion “in the mind of a person thinking reasonably about the information upon which the suspicion is based.”[14]
[13] R v Willingham (No.2) [2012] SASCFC 104
[14] R v Nguyen (2013)117 SASR 432, 437
It is therefore important to consider the material before Brevet Sergeant Tiller and Senior Constable Rusak at the time they each formed their suspicion.
Senior Constable Rusak said he suspected that there might be drugs or indications of drug offences on the accused because of the information he had received from Senior Constable Kepka, the cash that he saw on the kitchen bench, the indication by the accused that there were likely drugs on the premises and the conversation he had with the accused in the lift.
Brevet Sergeant Tiller said that he suspected that there was evidence of drugs in the accused’s car because of the information he had received in the briefing, the cash in unit “strewn on the countertop”, the “blasé” way the accused said his brother was involved in drug issues, and the fast food container which came from McDonalds. Officer Tiller suggested that the nearest McDonalds was on Hindley Street in an area he knows to be connected with drug trafficking.
Defence contends that this was insufficient for either officer to form a reasonable suspicion and even if either officer did entertain that suspicion it was not reasonable. The prosecution on the other hand say that the suspicion needs to be assessed given the knowledge and experience of the two officers concerned, the combination of factors and the context of the police attendance at the premises.
Defence accept that the information the police had was sufficient to exercise a general search warrant to enter the apartment. They had a specific address, they had the name and date of birth of the person of interest and of a female who was said to frequent the premises. They had the make and model of the car that was used and the registration number. This information was known to both Tiller and Rusak.
There was no information about the accused until he attended at the premises. Defence contend that even then the only information the police had was that he was the brother of the person of interest and that the only connection the accused had with the apartment was the possession of the key which he explained. It is said that this is insufficient to form a suspicion.
There is a factual dispute about whether the accused referred to his brother being involved with drugs prior to entry into the flat. Defence invites me to reject the evidence of the police and to accept the evidence of the accused that he did not say anything about drugs. Defence further say that, even if the accused said something along those lines, mere knowledge of his brother’s wrong doing is not a ground for entertaining a reasonable suspicion about the accused without more.
The accused denies saying anything about drugs being in the apartment or his brother drug trafficking. Three officers Rusak, Tiller and Kepka recalled a conversation about drugs outside the apartment. Each gives a slightly different version of what was said but the gist of their evidence was that the accused stated that there were likely to be drugs in the apartment. Two of the officers Tiller and Kepka said that the accused also said words to the effect that his brother dealt in drugs. As to which police officer was involved, Officer Rusak remembers it being Tiller, Tiller says it was Guerin and Kepka said that it was Guerin but that he might be mistaken. Officer Guerin did not give any evidence about a conversation with the accused on the topic of drugs. He said that what he related was the complete conversation. Unfortunately none of the officers made notes about this nor was any conversation of that type put to the accused.
Having carefully considered the evidence I consider that the accused did say that the police were likely to find drugs in the apartment – three police officers gave evidence that he did so. I accept their evidence. I reject the accused’s evidence that he did not say this noting that the accused volunteered a similar response when asked a similar question about his car. I consider it likely that this occurred in the context of the accused’s discussion with Guerin. Guerin’s description of that conversation is very brief. It is clear that more was said than appears in Guerin’s notes; for example it was established in the course of that conversation that the accused had the key and that he was looking after the unit. I am less certain that the accused referred to his brother being involved in drug trafficking – this seems an unusual thing to say in the circumstances albeit two of the officers were definite that he did. In many respects this adds little to the accused volunteering that there were likely to be drugs in the apartment. I will proceed on the basis that the accused did mention that there might be drugs in the apartment but without reference to his brother.
I note the criticism of the manner in which Tiller asked the accused whether there was anything in the car without administering a caution. Whilst admissions made in response to questioning without a caution would not necessarily be admissible it is clear from Tiller’s evidence that he had already formed the suspicion and the intention to search the car and, accordingly, for present purposes I reject the criticism.
I find that both Tiller and Rusak held a genuine suspicion. That suspicion was based on a combination of factors. It was “a working hypothesis” for which there was some supporting material. The factors that each officer identified were, in context, sufficient to engender a suspicion in the minds of the two officers but also in the mind of a person thinking reasonably about that information. The police were executing a GSW in respect of information of drug trafficking involving the accused’s brother and the apartment. The accused attended the apartment with a key. He also told police that he was looking after the apartment for his brother. Given my finding about the conversation the accused was further aware that there might be drugs in the apartment. On entry to the apartment the police noted a large quantity of cash sitting on the kitchen bench. Large amounts of cash are frequently associated with drug trafficking.
The factors identified by Senior Constable Rusak in the light of this information were sufficient to give rise to a reasonable suspicion that a search of the accused might afford evidence of an offence against the CSA. Tiller identified similar factors for his decision to search the accused’s car although the context for his decision also included the results of the search of the accused by Rusak. Again I consider that these matters were sufficient to found a reasonable suspicion that a search of the accused’s vehicle might afford evidence of an offence against the CSA.
In view of those findings the Bunning v Cross[15] discretion does not arise as I have found that the evidence was not obtained by unlawful or improper means. The subsequent interview of the accused is accordingly not tainted by the earlier searches. In those circumstance I dismiss the application.
[15] (1978) CLR 54