R v C, CJ - [2018] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, CJ
[2018] SADC 76
Reasons for Ruling of His Honour Judge Beazley
17 July 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application to exclude evidence of the fruits of the search of the accused, and that of the search of residential premises at Brompton by the Police on 18 January 2017 (the subject premises). Police alerted about a home invasion at Ridleyton – two officers tasked to attend at Ridleyton premises, two other police officers tasked to check streets in Brompton area - the latter two observed the accused near the front door of the subject premises shortly thereafter – they suspected that the accused had committed the offence at Ridleyton – Police entered the front yard of the subject premises without a warrant – they ‘detained’ the accused while they continued to investigate – they conducted a search of the person of the accused, and of the area where he was initially positioned – they seized some property including a ‘beanie’, a mask, cash in the sum of $170.00 and some black gloves – consideration of the lawfulness of the entry onto the subject premises; and of the searches, whether responses by the accused were allegedly obtained in breach of the Summary Offences Act - whether evidence of the police officers as to their suspicions ought to be rejected - whether the suspicions were reasonable - whether search of the accused's person was unlawful - whether the search of the land was unlawful - whether the police breached s 74D and s 79A of the Summary Offences Act - whether the evidence obtained by the police ought to be excluded.
HELD: The evidence of the police officer who conducted the searches was credible - there was a reasonable suspicion held by him to justify the search of the accused - the search of the accused was lawful pursuant to s 68 of the Summary Offences Act. In conducting a search of the subject premises and for failing to give the accused his rights under the Act, the Police officers acted unlawfully – However in the proper exercise of the discretion under Bunning v Cross the evidence will be admitted in the trial – the application by the accused to exclude the evidence is refused.
District Court Rules 2014 r 49(1)(e)(h); Summary Offences Act 1953 (SA) s 68; s 74D; s 75; s 78; s 79A and s 81, referred to.
Coco v The Queen (1994) 179 CLR 427; Halliday v Nevill (1984) 155 CLR 1; Kuru v New South Wales (2008) 236 CLR 1; Bennett v Police [2016] SASC 139; R v Golja [2017] SASCFC 61; Pollard v The Queen (1992) 176 CLR 177; R v Rockford [2015] SASCFC 51; R v Nguyen [2013] 117 SASR 432; Bunning v Cross (1978) 141 CLR 54; R v White [2014] SADC 33; R v Turner & Williams (1987) unrep. Cox J; R v Armistead [2017] SADC 63; R v Webb & Hay (1992) 59 SASR 563; New South Wales v Riley [2003] NSWCA 208; Coleman v Zanker (1992) 58 SASR 7; Police v Williams [2014] SASC 117; R v Willingham (No.2) [2012] SASCFC 104; George v Rockett (1990) 170 CLR 104; Wilson & Morrison v R [1994] SASC 5 4554; R v Rogers [2011] 109 SASR 307; R v Frantzis (1996) 66 SASR 558; Ridgeway v The Queen [1995] HCA 66; Christie v Leachinski [1947] AC 573; Plenty v Dillon [1991] HCA 5; Police v Dafov [2008] 102 SASR 8; Police v Moukachar [2010] 107 SASR 540 at [13]-[15]; R v Fazio (1997) 69 SASR 54; Bain v The Police [2011] 112 SASR 10 at [26]-[31]; Ercegovic v Higgins (1987) 45 SASR 189; R v Nguyen [2016] SASCFC 96; Police v Edwards [2017] SASC 289; R v Dolan (1992) 58 SASR 501; R v Rondo [2011] NSWCAA 540; R v Hunt [2014] NTSC 19; R v Chapman [2001] 79 SASR 342; R v White [2016] SASC 33; R v Eggen & Eggen-Zeytoun [2016] SASC 26; Michaelis v Police (1999) SASC 102, considered.

R v C, CJ
[2018] SADC 76
Introduction

CJC (‘the accused’) is charged on Information with one count of aggravated serious criminal trespass in a place of residence, and one count of aggravated robbery.
It is not in dispute that a male person entered a residence at Ridleyton at about 2.00am on 18 January 2017, and obtained cash in the sum of $170 in consequence of a robbery with the use of a knife. At about 2.20am the accused was observed by two police officers to be present on the front porch of a residence at Coglin Street Brompton.
The police ‘detained’ the accused for about 30 minutes on those premises by directing him to cease moving about, while they made some investigations. They asked the accused some questions as to where he had been; why he was present on the Brompton premises at 2.20am; and what were the names of any of the residents at the Brompton premises.
Later a police officer asked him to turn out his pockets; and when he did, the police officer seized $170 in cash, and what was later referred to as a ‘black mask’, with some white on it. They also searched the porch area of the premises and seized a ‘beanie’ and some BMX type gloves.
The accused asserts that his ‘detention’ constituted an ‘arrest’; that the arrest was unlawful; that the respective personal and property searches were unlawful; and that the failures of the police to give him his ‘rights’ under s 79A of the Summary Offences Act; and to provide an audio visual record under s 74D should also lead to the fruits of the searches being excluded in the proper exercise of the public policy discretion.[1]
[1] Bunning v Cross (1978) 141 CLR 54; R v Nguyen [2013] 117 SASR 423; R v Golja [2017] SASCFC 61 and Pollard v The Queen (1992) 176 CLR 177.
The accused further asserts that in the event that the Court concludes that there was any unlawful conduct by the police, all of the evidence obtained from the respective searches ought to be excluded. See R v Rondo [2001] NSWCCA 540; and R v Eggen & Eggen-Zeytoun [2016] SADC 26.
Application by the accused
The accused filed an application pursuant to Rule 49 of the District Court Criminal Rules 2014, for various matters to be determined on a voir dire.
I directed that a voir dire take place before the commencement of the trial on the subject charges.
In an amended application, dated 6 July 2018, the accused sought the following orders:
That the arrest of the accused was unlawful.
That the evidence obtained as a result of the search of the accused and the search of the premises at Coglin Street Brompton on 18 January 2017 be excluded.
That the photographs and evidence of Brevet Sergeant Steven Gresch be excluded.
That the evidence of Senior Constable Bruce Lawton and ‘all sniffer dog evidence’ be excluded.
In support of the application the accused detailed the following grounds:
·The police had no reasonable cause to suspect the accused of having committed an offence;
·The police failed to comply with their Christie v Leachinsky obligations;
·The police failed to comply with s 79A of the Summary Offences Act 1953;
·The police had no lawful authority to enter and search the property at 84 Coglin Street Brompton;
·The provenance of the photographs of Brevet Sergeant Gresch is not established, and the police officer who took them is not being called to give evidence;
·The ‘sniffer dog evidence’ is not a permissible area of expert evidence, or alternatively, the prejudicial effect outweighs probative value.
In addition, during the hearing, the accused submitted that the fruits of the search had been unlawfully obtained because the police had detained the accused for about 30 minutes before he was formally arrested, and was asked questions in breach of s 74D of the Act.
Brief Overview
The principal issue at trial will be the identification of the male person who committed the robbery at Paget Street Ridleyton at about 2.00am on 18 January 2017.
The occupier of the Ridleyton premises had telephoned the police prior to the robbery, at about 2.02am, to inform them that an intruder was on his premises. The police immediately tasked Constables Worner and Zaknic to attend at those premises.
At some time prior to 2.11am, Constables Anthony Worner and Antony Zaknic, entered Paget Street in their vehicle. Both police officers gave evidence of their respective unobstructed view of a male person crossing from the Ridleyton premises in a northerly direction to Burroughs Street.
Both police officers gave evidence of information which had been provided to them by the occupier of the subject premises from time to time. There was a dispute as to the times at which they had been given that information by the occupier, and the times when they had conveyed any of the information to any other officers over the police communications system.
The question of the timing of information is significant as the lawfulness of the police action is limited to their knowledge at the time. See R v Frantzis (1996) 66 SASR 558.
By about 2.15am police communications had proceeded to establish a cordon covering streets to the north of the Ridleyton residence. In one of the police vehicles assigned to be part of the cordon were Brevet Sergeant Richard Miller and Constable Julianne Matthews.
At about 2.20am they observed the accused in a position near to the front door of a house at Coglin Street Brompton. Those officers parked their vehicle with lights illuminated outside that address. There was a ‘dispute’ between Brevet Sergeant Miller, and Constable Matthews as to whether the accused was crouched or standing on the front porch; and as to whether the accused came over to the side of the police vehicle, or whether he remained on the porch, where he was spoken to by Brevet Sergeant Miller.
In my opinion nothing turns upon that ‘dispute’, as I will later explain.
Both police officers gave evidence of their observations of the accused, and in particular his demeanour.
It was not in dispute that, between about 2.20am and 2.55am, the accused was directed by Brevet Sergeant Miller and Constable Matthews to sit down while those police officers continued their investigations. At some time Mr Miller directed the accused to empty his pockets. The accused did comply with that direction. Mr Miller also searched the area in which the accused had been standing when he was first sighted by the police officers.
The search of the accused’s person produced $170, in cash, being three $50 notes, one $10 note and two $5 notes; and a black face mask with a white skull imprint. The search of the property produced a pair of black BMX type gloves; a dark ‘beanie’ and a red torch, amongst other items.
The accused’s case is that the police engaged in effectively a ‘bona fide’, checking any person who may be in the locality without holding a reasonable suspicion about the accused in the hope of finding some incriminating evidence. See R v Chapman [2001] 79 SASR 342; R v White [2016] SASC 33; and Police v Bain [2011] SASC 228.
The evidence on the voir dire
In the course of the voir dire the prosecution called four witnesses each of whom had been involved in the investigation of the charges brought against the accused.
They were respectively Brevet Sergeant Richard Miller; and Constables Julianne Matthews; Anthony Worner and Antony Zaknic.
In addition the Court was provided with the relevant declarations; the various exhibits which were tendered, including the relevant SA Police Communication Log;[2] and the disc of the log voice recordings;[3] an aide memoire of the transcript of those recordings; an unsigned record of a recent statement of the complainant; photographs of the accused at the time of his arrest; [4] and a map of the surrounding area, identifying Paget Street and Coglin Street.[5]
[2]    VD Ex D1.
[3]    VD Ex D2.
[4]    VD Ex D4.
[5]    VD Ex D5.
The accused did not give evidence, nor did he call any witnesses on the voir dire.
Synopsis of the oral evidence
·Constable Worner
On 18 January 2017, he was on general patrol duties with Constable Zaknic. He explained that just after 2.00am, they were tasked to attend at Paget Street at Ridleyton in consequence of a person on the premises. About 40 metres from that address he observed a male person to leave the front of Paget Street, and cross to Burroughs Street in a northerly direction. He described him as being of medium build, 170 to 175cms tall, with darkish clothing apart from his pants being grey. He was wearing a t-shirt with something under it. His hair was ‘boofy on top’.
Before they had a chance to speak to the victim, they gave a brief, and vague description of that male person over the police communications at about 2.11am. A now retired police officer was appointed to fix a cordon and conversations between relevant officers were recorded on the communications log.
Arrangements were made to employ a sniffer dog to search the area from Burroughs Street.
The victim of the offending appeared on the balcony overlooking the street concerned that the offender may still be in the house. Constable Zaknic spoke to him. He learnt that a robbery had just occurred, but at that time, the description of the intruder was also vague, with mention of a black hooded jumper.
Later Constable Worner started to take a statement from the victim. He was interrupted by Senior Constable Miller communicating that he had observed a male person at the door of the Coglin Street at premises.
Constable Worner said that before he left to join Mr Miller at Coglin Street, he had completed most of the statement from the victim. When he arrived at Coglin Street he observed the person whom he now knows as the accused. He identified him as being the same male he had seen crossing from the house at Paget Street.
Mr Miller told him that in consequence of a search, he had discovered a face mask; black gloves, a quantity of cash amounting to $170 in denominations of three $50 notes, one $10 note and two $5 notes. Constable Worner said that this was consistent with what the victim had told him before he left to go to Coglin Street.
He noticed the accused pacing back and forth, quiet agitated, and very sweaty. He said the accused became abusive towards the police; fidgety; could not stand still; and was out of breath.
He said that he formally arrested the accused just after Constable Matthews had pointed to the ground to tell the accused to sit down. At that time the accused had swiped at her hand. He said that after the arrest he went back to the victim’s house to complete the statement and to collect Constable Zaknic.
He did not give the accused his arrest rights because it wasn’t appropriate to do it due to his abusive behaviour and swearing. He said that about 3.15am he had spoken to the charge Sergeant, and that once the accused had calmed down he provided him with his arrest rights.
Constable Worner was cross-examined at length. He described the hair of the person that he observed, as being ‘fluffy on top’ like a ‘mini afro’. He said that when he saw the accused at Coglin Street he had lots of sweat, indeed dripping sweat. He said that when he returned to the victim after the arrest, he only had a few ‘extra bits of the statement to complete, and it took no more than 5 – 10 minutes to finish’.
He said that before the accused had been stopped, he spoke to the victim on the balcony and he started to get more information that might be beneficial to the patrols. He said, from memory, that the victim had told him that the male person had been wearing a beanie or similar on his head; was wearing a mask that covered his face which was black and had a white marking across it, and that he was wearing gloves and dark clothing.
He said that he had been a police officer for some 8 years. He said that at the time Mr Miller and Ms Matthews had stopped the accused, it was about 2.24am from the communications log.
Some of the matters attributed to him on the communications log were subsequently established to have been made in fact by Constable Zaknic. He could not recall when he was first told by the victim that the male had a knife.
He said there was no one else walking around the area in an agitated and sweaty condition. He added that that night the police had swarmed over that area, and that Paget Street and Coglin Street were about 300 metres apart.
He accepted, in cross-examination, that he could not recall the exact time when it was that the victim had told him the denominations of the $170 cash. He denied having commenced the statement with the victim until after the accused had been arrested at 3.00am.
He said that he recorded the entry of 2.35am in his notes.
He agreed that he had arrested the accused by about 3.00am. He denied commencing the victim’s statement only at 3.06am. He denied telling anyone that the male person he had observed was wearing a black hooded jumper.
He had taken from the Coglin Street premises various items to show to the victim who was in the police vehicle. Those items included the pair of sunglasses which the victim said was not his, and therefore must have been the property of the occupier at the Brompton premises.
·Constable Matthews
She said that she and Mr Miller were tasked at about 2.10am to attend the Brompton area. They were aware of the allegation that a home invasion had taken place. They were tasked to attempt to find the person who had been mentioned on the police communications log.
It was Mr Miller who had first noticed a person at the front door of that house. She opened her window and called the accused to the car. He had light coloured skin, was stocky or of a medium build with a long sleeved t-shirt. She checked his identification. She said that initially he was co-operative. However she thought he was sweaty, nervous, out of breath and a little bit erratic. She was suspicious about him being at this door at 2.00am. She told the accused to stay still because she was concerned that he was about to run away. She thought that she had been with the accused for about 15 minutes before Constable Worner arrived. She said the accused became agitated, and as she put her arm up, the accused flicked it away. He was then placed under arrest. She said she had formed the suspicion that he may have been connected with the Paget Street robbery, because he was sweaty, nervous, out of breath and in relative close proximity to the house where the robbery had occurred. She was satisfied that she had reasonable suspicion to detain him.
When cross-examined she admitted that whenever he attempted to walk away, she directed him to remain seated. She said at no time was he given any arrest rights because he was aggressive and because of his demeanour. She assumed that the accused must have overheard a discussion between Mr Worner and Mr Miller, as to arresting him, as he then became even more aggressive and abusive.
·Brevet Sergeant Richard Miller
He said that he and Constable Matthews were tasked at about 2.10am on 18 January 2017 to patrol streets surrounding Paget Street following the report of a person being disturbed at his house. They arrived quickly into the Brompton area and began to search. He started to receive a very brief description of a male over the police intercom. It was in respect of a person who had been seen to decamp the Paget Street premises. In Coglin Street their police vehicle had roof mounted forward and side lights illuminated. He saw a person, whom he described as being crouched on the front porch. He said that the male was facing away from them, ‘crouching down in the vicinity of the front door’.
He saw the accused first. Constable Matthews hadn’t seen him at that stage. They both called out to the person who didn’t respond. He said that he was surprised because the level of illumination from the police vehicle ensured that their presence would have been obvious. It wasn’t until he, Mr Miller, actually approached him that the accused stood up and turned to face him. Mr Miller observed the accused to be out of breath and sweating profusely. He asked him what he was doing there and the accused said that he had run there to visit a friend. He was however unable to identify any person who he alleged was living at the house.

He said the conversation with him occurred on the front porch and at that time the accused was continually moving or attempting to move to the front yard. He tried to get him to sit down on a number of occasions as did Ms Matthews. His concern was that the accused would attempt to decamp. The accused only stayed still for a short period and then seemed to move towards the driveway entrance. He said that he suspected him of being the offender from the Paget Street robbery.
He said that he explained to the accused that he was investigating an offence nearby and that he believed or suspected that the accused was the suspect.
He said that he employed s 68 of the Summary Offences Act to detain and search the accused. He suspected the accused at that time because of his close proximity to the robbery, and his demeanour.
He said that the accused was out of breath, and this was consistent with him having been involved in activity, which he assumed was running from the scene of the robbery. His behaviour at the time indicated he was not happy talking to the police and wanted to get away. He suspected that the accused would have on his person, evidence of the commission of the robbery.
He said that he asked the accused to accompany him to the police vehicle on the street so that he could be searched. He gave him a ‘pat down’ to make sure he didn’t have weapons on him, and once satisfied, he asked him to turn his pockets out. He appeared to do that and the items, which included $170 in cash, were eventually placed on the boot of the vehicle.
He said that despite being told to remove items from his pocket the accused did not remove the black piece of cloth which was still in his pocket. When he finally produced it, further examination of the black piece of cloth disclosed the face mask with a white skull printed on it.
Mr Miller said that he then searched the immediate area where he had seen the accused crouching down. He located a red torch, black gloves and ‘a beanie’; amongst goods belonging to the occupier. He said that he believed that he had tacit consent to enter the property and remain until the occupier asked them to leave. He said that he entered through the driveway which was not fenced.
He had been unable to raise the occupier and no one had asked him to leave.
He said that a few minutes later, Constable Worner attended. At that stage the accused was formally arrested. He said that he and Constable Matthews took the accused to the police station in the police vehicle.
He said he thought that the accused had already been given his rights by Mr Worner, and there was no facility to record anything on audio visual at that point. He didn’t engage in conversation.
When cross-examined, he repeated that he had asked the accused to explain his presence on the property and had attempted to corroborate the story by trying to speak to the occupants of the house. He said the accused couldn’t name people who lived at the house. No person in the house came to the door.
He conceded that at an early stage, he had suspected that the accused was involved, in the robbery, or that at least he may have some evidence of it on his person. He conceded that once he had formed that view, he was obliged pursuant to s 74D of the Summary Offences Act to record any discussions.
He said he didn’t do so; because it was impractical and because he gave the accused the benefit of the doubt in order to check out his version of the events. He agreed that if the accused had attempted to leave he would have formally arrested him. He agreed that the accused was kept for about 30 minutes while inquiries were undertaken. He agreed that he did not tell him that he was under arrest but did tell him that he needed to make further enquiries.
He said that the search occurred just before Constable Worner arrived with more detailed information. He said that until then other information was coming over the police ‘Comms’, bit by bit. He wanted to make sure that the accused was the right person before he arrested him.
He said that he was attempting to find out what the accused was doing there at 2.00am. He said that in light of his demeanour; his explanation for having run to Coglin Street and his inability to name the occupants, he had reasonable suspicion to search and detain him under s 68 of the Act.
He maintained that Coglin Street and Paget Street were in close proximity. He denied that the accused was being co-operative.
When Constable Worner had arrived, he had been shown the skull face mask and the cash and other items. He accepted that if a person was detained then he was arrested in a de facto sense. He distinguished this from a formal arrest. He agreed that if someone was detained then they ought to be given their s 79A rights.
He explained that the nature of police work is that they conduct inquiries with people. Despite them being suspects at that point, police may prevent them leaving while they conduct inquiries. He regarded this as no different to stopping a motor cyclist on the side of the road while you examine the vehicle, repeating ‘You are conducting enquiries’.
He agreed that he had no general search warrant nor did he have the authority of the occupier to search the premises. He denied having heard any discussion over communications that he should not go searching people’s yard. When it was put to him that it was the law that he should not go searching yards, he said he would not know why ‘Comms’ would say that, because ‘it is not their call’. He denied that it was unlawful to go searching in those circumstances. He repeated that he understood that police officers have a tacit consent to enter land which remains until the consent is withdrawn by the occupier.
·Constable Antony Zaknic
His evidence was brief. He did not take a detailed statement from the victim, nor did he attend at Coglin Street.
Submissions of counsel
·The accused
Counsel for the accused Mrs Shaw QC, in her written and oral submissions, highlighted which she described as conflicts between the evidence of Constable Matthews and that of Brevet Sergeant Miller with respect to the behaviour of the accused. She concentrated upon the information available to those two officers during the period that the accused was ‘detained’ by them at Coglin Street. She submitted that the suspicion by Mr Miller was based upon his evidence that he saw the accused crouching down in the front porch of the house, and that he was sweating profusely and out of breath.
This was to be contrasted with the evidence of Ms Matthews to the effect that he was standing near the door, and that when called, he had immediately walked over to the police vehicle where he provided his personal details, and an explanation for being there. She submitted that they did not have reasonable cause to suspect the accused of anything; let alone to detain him.
She submitted that both officers had conceded that the accused was not told that he was under arrest. She submitted that once the decision had been made to detain the accused, they were obliged to tell the accused that he was under arrest; to tell him the nature of the offence; to give him his rights under s 79A; and to refrain from interviewing him unless in accordance with s 74D of the Act.
She submitted that the police officers misunderstood the test under s 68 of the Act. Accordingly she said, the police officers had failed to comply with any of the relevant provisions of the Act. It was not one sole breach, but a breach of each and all of the protections against arrest; apprehension; searching and interviewing.
Mrs Shaw submitted that in light of these fundamental breaches the Court should exercise its discretion to exclude the evidence obtained from the unlawful searches. She repeated that this trial will involve the issue of identification as the principal issue. She submitted that the officers had failed to make any investigation of the occupier of the premises; and had failed to make any investigation with respect to the items which were recovered during the searches including the items which belonged to the occupier. She submitted that the victim may have had his memory tarnished by what materials were presented to him. This placed the accused in jeopardy of ‘contaminated evidence’, in consequence of the denial of his rights under the Act.
She submitted that the recent case law from the Court of Criminal Appeal, as expressed in R v Rockford, is that the Courts must not ‘make hollow the need for police to comply with the provisions to protect citizens. Otherwise the very purpose of the provisions would then be undermined’.
She submitted that the police officers had no authority to remain on the premises at Coglin Street. Even if there were an implied licence to enter the premises to speak to the owner, there was no implied licence to remain on it, nor to conduct a search.
She submitted that had s 79A and s 74D been complied with, an independent person would have been able to verify what occurred on the search, and indeed provide evidence as to whether in fact the accused was sweating profusely.
She submitted that it was ‘blatantly unlawful’ to detain a person so that inquiries could be conducted without giving him his s 79A rights.
She submitted that it was open to conclude that a senior officer had told the police officers that it would be wrong in law for them to search such premises. She submitted that in light of the various breaches by the police officers, coupled with the limited information which had been provided to them from the Comms records, there was simply no basis for the police to detain the accused or proceed to search him. In light of what she submitted were the number of illegalities, the Court ought to exclude the fruits of the search.
·The prosecution
Counsel for the prosecution Mr Stratton-Smith submitted that the Court ought to conclude that all four police witnesses were honest, and reliable, and had done their best to recall the events of that night. There was no evidence that any of them had intentionally exceeded their lawful authority. He submitted that the Court ought to take into account what Constable Worner described as the investigation being ‘hot’ and ‘fast moving’.
He submitted that Brevet Sergeant Miller had correctly identified the stop, search and detain power which he had employed. He submitted that the entry onto the Coglin Street property was lawful, pursuant to that tacit consent of the occupier.
He submitted that nothing turns upon whether the accused walked up to the car where Constable Matthews was sitting or whether Brevet Sergeant Miller had approached the accused on the front porch. He submitted that the two police officers had been made aware that there had been a home invasion at Paget Street; and that they were to set up a cordon in the nearby area to see if they could apprehend the male person observed at Paget Street.
Constable Matthews had given evidence that when she observed the accused at the front door of the Coglin Street house at 2.00am, he appeared to her to be out of breath and sweating and that he was nervous. He submitted that those observations were enough for her to think ‘have you just been running? I think so’. He said that she was aware that Coglin Street was close to Paget Street, and that it was not a coincidence that they had seen the accused at the house.
Mr Stratton-Smith submitted that there were sufficient grounds for them to reasonably suspect that the accused had, on his person, stolen goods, or the evidence of the commission of an indictable offence.
The fact that they decided to await further information, did not take away from their reasonable suspicions. These were based upon their observations at that time of the accused being seen on the front porch of premises at 2.00am in the morning; not being able to identify any person who lived at the premises; that he was sweating and out of breath; and was within about 300 metres of a robbery which had taken place. He submitted that, if anything, the police were prepared to give the accused the benefit of the doubt while they continued their investigations. He submitted that nothing turns upon the police not giving the s 79A rights at the time of his formal arrest because of the struggle by the accused, and his demeanour.
He submitted there was no breach of any of the sections of the Act contrary to the submissions of Mrs Shaw. He submitted that in any event even if there were breaches the Court ought to find that the police officers had acted diligently, and honestly and any such breach was of a technical nature and unintended. Further it did not affect the cogency of the evidence.
·Reply by the accused
Mrs Shaw referred to the fact that the person identified by the Comms record was ‘an aboriginal person’. She said that there was in fact a significant walking distance between the two premises. She again highlighted the distinction between an implied right to enter the property, and any implied right to conduct a search of the property. She repeated her submission that the police officers did not, at the time they detained the accused, have reasonable cause to suspect that he had committed any offence, nor that he had on his person any incriminating evidence in respect of the Paget Street robbery.
The principles of Law
I turn first to the power of the police to conduct a search of an individual under s 68 of the Summary Offences Act 1953 (SA).
That section provides:
Section 68:
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)    there are stolen goods; or
(ii)    there is an object, possession of which constitutes an offence; or
(iii)     there is evidence of the commission of an indictable offence;
(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. (my emphasis)
(2)     In this section—
stolen goods includes goods obtained by the commission of an offence.
The section has been considered by the Supreme Court in a number of decisions, including those in R v Rogers[6]; R v Frantzis[7]; and R v Willingham (No 2)[8].
[6] [2011] 109 SASR 307, [17]-[18], [21]-[22].
[7] (1996) 66 SASR 558.
[8] [2012] SASCFC 104.
In R v Frantzis[9] the Court of Criminal Appeal discussed the test of reasonable suspicion under s 68, saying:
That the level of reasonable suspicion must exist at the time the member of the police force conducts the search.
It said that the power to search and detain is for the purpose of enabling a police officer to investigate the possibility that an offence has been committed.
It is not necessary that the police officers have knowledge of the commission of an offence, or the particulars of the commission of an offence. Nor does the police officer have to suspect that [an individual] need necessarily have committed any particular offence.
The section is designed to be an aid in the investigation of the commission of an offence, and hence it is enough that the police officer has reasonable cause to suspect that there is [on the person] any of the matters mentioned in s 68(1). It is dangerous to draw too close an analogy between the meaning of ‘with reasonable cause to suspect’ in s 68 and its meaning in relation to other provisions involving more significant erosions upon civil liberties, for example in relation to the power to arrest without a warrant under s 75 of the Act.
In my opinion there is no true analogy. The power to arrest in s 75 must be founded upon a suspicion of having committed, or being about to commit a specific offence, and the arrested person must be told the offence for which he is being arrested … Power to search stands differently. It is designed to enable a police officer to investigate the possibility that an offence has been committed. Its purpose is quite different from s 75. There may be many circumstances in which a police officer will reasonably suspect that the search of a person will disclose stolen goods … without having any information as to the existence of any specific property or the commission of a specific offence.
If the power to search did not apply to persons who were acting suspiciously unless the police officer already knew or suspected the presence of specific goods or the commission of a specific offence, police work would be considerably, and I think unreasonably, constrained. Mrs Shaw was unable to cite any authority to suspect her proposition that s 68 should be interpreted in such a restricted manner. I think that the words in s 68 embrace a non-specific suspicion as to the matters mentioned in that section. I see no reason for restricting the natural meaning of the words, and to do so, would in my opinion unreasonably hamper the police in their work of criminal investigation.
[9] (1996) 66 SASR 558.
The Court concluded by saying that if the search was otherwise found to be illegal, it would have been within the proper exercise of the court’s discretion to refuse to exclude the evidence. It said ‘the police officers were acting reasonably and sensibly. If there was any illegality it could only have been of a technical and not of a wilful or malicious nature. Further the evidence obtained was important in respect of a serious criminal charge.
In Bain v The Police [2011] 112 SASR 10 it was sufficient that a licence check had described the appellant as a ‘drug user dependent’, to justify a search of a motor vehicle which in turn produced jewellery rather than drugs. Not only was it sufficient to justify a reasonable suspicion, but also the search and questioning while it proceeded was held to be lawful. The Court held that the discretion should not be exercised to exclude the evidence because if there was any unlawfulness by the police it was not deliberate and the quality of the evidence found was not affected by the officer’s conduct.
In R v Rogers, Duggan J dealt with the question of reasonableness of a police officer’s suspicion for the purpose of a search saying at [17]-[21] that:
The police officer walked over to the Falcon and had a conversation with the accused. He said in evidence that the accused appeared erratic. He was sweating and appeared very nervous. The police officer said in evidence that the accused’s nervous agitation was “totally out of the ordinary when compared with the usual behaviour of persons whose vehicles are stopped”. (my emphasis)
…
Brevet Sergeant Allen drew two important inferences from the accused’s behaviour. He believed the behaviour may have been due to drugs and that the acute nervousness suggested the accused had something to hide. He said in evidence that he has considerable experience in assessing whether persons are affected by drugs.
When the police officer went back to his vehicle at the time of this stop, he was given information about the accused over the police radio. The conversations were recorded. It is apparent that the police officer from the Port Augusta Police Station to whom he spoke was consulting police records at the time of the discussion over the radio.
Bryce, I’ve just stopped a car I’m west of Olary it’s a member of the Gypsy Jokers, he’s an older fella though but he’s very, very nervous and sweating about something when he probably shouldn’t be. He’s going directly to Adelaide on the Barrier Highway that’s what I’ve ascertained off him, I’m just wondering whether you could start making your way north and I’m still behind him heading towards Mannahill and we’ll stop and do a vehicle search … I’ve got a reasonable suspicion with this chap, he’s sweating like it’s a million degrees, he’s raving his head off there’s something up, he’s very nervous about something so I’m going to go with what I, with my suspicion and just wait for Sergeant Anderson to meet me.
In George v Rockett,[10] the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam:[11]
[10] (1990) 170 CLR 104 at 115.
[11] [1970] AC 942 at 948.
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”
The Court went on to draw a distinction between suspicion and belief:[12]
[12] (1990) 170 CLR 104 at 115.
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:[13]
[13] (1966) 115 CLR 266 at 303.
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor.[14] His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:[15]
According to the plain meaning of the words there is therefore a clear distinction between things that are “suspected” of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
McHugh J also quoted from the judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield and Carter[16] where their Honours said:[17]
Suspicion lives in the consciousness of uncertainty.
Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
A suspicion may be based upon a number of considerations, some of which are more significant than others. In my view, the information which the witness received in relation to the accused’s possible involvement with a motorcycle gang was not an irrelevant factor for the witness to take into account. Obviously, it would be insufficient, by itself, to ground a relevant suspicion.
As to the previous drug matter, it was revealed during the hearing of this application that the accused had been charged with possessing cannabis, but that the charge had been withdrawn. The information which was relayed over the police radio was open to the interpretation that the accused had committed a drug offence. In my view, it was reasonable for the police officer to assume that the information was coming from a reliable source while a check of police records was being made. I am of the opinion that he acted reasonably in giving the information some weight in forming his opinion.
As I have said, however, the major factors in forming the suspicion arose out of the accused’s behaviour and demeanour. In my view, these matters were sufficient in themselves to give rise to a reasonable suspicion within the meaning of s 52(9) of the Act. The accused’s appearance was consistent with the effects of a drug and the extremely nervous appearance of the accused suggested to the police that the accused had something to hide. (my emphasis)
[14] (2005) 222 CLR 612 at [75].
[15] [1925] SASR 286 at 291.
[16] [1927] SASR 192.
[17] [1927] SASR 192 at 196.

In R v Fazio[18] the Court of Criminal Appeal concluded that the observations by a police officer of the accused being ‘nervous’; wishing to leave; with his speech shaky and him ‘starting to sweat’, was sufficient to give rise to a reasonable suspicion. The subsequent search was accordingly lawful.
[18] (1997) 69 SASR 54. See also Police v Edwards [2007] SASC 289.
In R v Willingham (No 2), supra, the Court of Criminal Appeal said that the questions to be asked are first, whether the police officers 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. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
·The effect of the accused being detained for 30 minutes
As is plain from R v Frantzis, supra, if the police had reasonable cause to suspect him of being connected to the robbery they also had reasonable cause to detain him, under s 68 of the Act.
The accused was detained for about 30 minutes before he was formally arrested. It was plain to the police officers that he wanted to leave and was seen to pace up and down on numerous occasions. He was directed to sit down and remain. At issue is whether this went beyond the power in s 68, and constituted a de facto arrest for the purposes of ss 75, 78 and 79A of the Summary Offences Act.
The question is whether the actions of police in telling him to stay would of itself have induced a reasonable person in the position of the accused to suppose that he was not free to leave.
In the case of R v Turner & Williams[19] Cox J referred to what constituted ‘apprehended’ pursuant to s 79A. In that case His Honour noted that the accused was told on more than one occasion to stop where he was and that on one occasion he was restrained physically by the police officer putting a hand on his shoulder. While there was no violence and no great force, His Honour concluded that the physical restraint coupled with the words being used amounted to a restraint or apprehension.
[19] Unreported Decision of Cox J (1987).
In Webb v Hay[20], the Court was concerned with the admissibility of answers which had been given by Webb to the police and the failure to caution him at an early stage. In that case Webb had not been informed of his rights as required by s 79A for about 1.5 hours until his formal arrest. The Court said that in applying the rules governing police investigations it is necessary for a Court to keep in mind that the police are called upon to make decisions in the field as the events unfold. The question however for the Courts to decide is as to whether the continued request for the accused to sit down of itself constitutes a de facto arrest of the accused which required the police to give the rights required in s 79A of the Act.
[20] (1992) 59 SASR 563.
In the subject case the accused was not formally arrested until about 30 minutes after being detained. He was not physically restrained.
It would have been plain to the accused that he had not at that time been arrested.
He continued to move up and down. I accept in any event that by the time that Constable Worner arrived he was fully aware of the significance of the black mask, the beanie and denominations of the $170.
It is plain that at that time Constable Worner had reasonable grounds to arrest the accused for the subject offending. It is important to note that unlike the case of Webb the DPP was not seeking to tender any evidence of admissions made by the accused. The evidence which is being sought to be tendered by the DPP, is the evidence of what was found on his person when he was initially detained under s 68 of the Act; and what was found on the search of the property.
The accused submits that his de facto arrest in consequence of being detained at Coglin Street for about 30 minutes was unlawful. Finally the accused submits that the police had no lawful authority to search the accused or the property at Coglin Street or seize property located on that private property. This raises the question of whether there was an implied licence, or tacit approval for the police to enter the premises.
Findings and discussion
The evidence of the witnesses must be placed in context. Brevet Sergeant Miller and Constable Matthews had been tasked to search streets near the scene of a home invasion at Paget Street. They had a brief and vague description of a male who had been seen at the front of the Paget Street premises.
I do not accept the accused’s submission that there was a significant dispute between the evidence of Mr Miller on the one hand and that of Ms Matthews on the other. The front porch at the Coglin Street premises is a short distance from the road. I have no doubt that Mr Miller was the first to observe the accused. I accept that he observed the accused crouching down. He told Ms Matthews who had not seen him at that time.
I accept that the accused did not move until Mr Miller exited the police car and walked into the property. Only then did the accused move towards the police vehicle where a check of his identity was made.
Mr Miller was no longer in the police force when he gave his evidence. I have no hesitation in accepting the truth and reliability of his evidence.
Mr Miller and Constable Worner gave evidence without the benefit of their notes, although they were given copies of pages of those notes during cross-examination. I was favourably impressed by the evidence of each of those witnesses.
After making his observations of the demeanour and behaviour of the accused and eliciting from him what he said he was doing at the Coglin Street premises, I accept that Mr Miller attempted to raise the occupants of that home without success.
What followed was that the accused was being watched by Ms Matthews while enquiries were made over the police Comm. The accused was told to sit still, which he did reluctantly before moving about again.
I have no doubt that Brevet Sergeant Miller had reasonable cause to detain and search the accused at about 2.20am on 18 January 2017 at Coglin Street, pursuant to s 68 of the Act. Consistent with the dicta in R v Fantzis, supra, he had knowledge of the commission of an indictable offence committed at Paget Street shortly before he made his observations of the accused. The Coglin Street premises were a short distance away. The accused was observed to be out of breath, sweating profusely. He was nervous and could not identify by name any occupant of the Coglin Street residence. He was outside the home at 2.00am.
In my opinion this alone was sufficient for Brevet Sergeant Miller to detain him and to conduct a search of his person.
Consistent with the dicta in R v Frantzis this search and detaining was for the purpose of investigation. I do not need to consider whether the police officers were able to arrest him under s 75 of the Act at that time.
I repeat that the observations of the police were more than sufficient to give rise to the power to detain and search the accused under s 68 of the Act.
I have no doubt that the police were entitled at law to enter the property at Coglin Street to speak to the accused. At the time of entry Brevet Sergeant Miller had tacit approval to enter the property.[21] I do not need to consider whether the tacit approval was limited to approaching the front door of the house. See Police v Williams [2014] SASC 177 at [276]. The accused was searched on the street by the police vehicle.
[21] Bennett v Police [2016] SASC 139; and Police v Williams [2014] SASC 177.
In my opinion the search of the person of the accused was lawful.
I turn to the question of the search of the property at Coglin Street.
Section 68 does not apply to a search of property. I accept that Mr Miller genuinely believed that the tacit approval to enter continued until it was removed by the occupier. The principles are well settled.
The case law generally involves the arrest of an individual on private property.
An unauthorised entry or remaining on private property is a trespass. The right of a person in possession to exclude others from those premises is a fundamental common law right.
A police officer who remains on private property without the leave of the person in possession commits a trespass unless the entry or the remaining is authorised or excused by law.
I accept the evidence of Brevet Sergeant Miller that the entrance to the premises was not locked, and there was no other indication that entry by visitors was forbidden. Further he attempted to make contact with the occupier without success. I have already found that his entry on to the property was with tacit approval. Further the tacit approval continued at the time the accused was searched.
The difference with the search of the property is that the search of the front porch involved the search of the occupier’s goods. The tacit approval could only be for a purpose that does not interfere with the occupier’s possession of the real or personal property.[22]
[22] Police v Williams [2014] SASC 177 at [278]-[279].
In my opinion by searching the property including the property of the occupier on the front porch Brevet Sergeant Miller was then acting unlawfully – albeit unwittingly.
I turn to the question whether the accused had been arrested in a de facto sense as he had been detained for about 30 minutes.
I have referred to the dicta of Cox J in R v Turner & Williams. In the subject case the position is not as clear as it was in that case. I am prepared to accept that at least for part of the 30 minutes the accused had been arrested in effectively a de facto sense.
On balance the police had been in a position to move from the investigatory stage.
The two police officers believed that they had reasonable cause to arrest the accused, even before Constable Worner had returned. Accordingly it was incumbent upon them after the initial searches to caution the accused in the usual way and give him his rights under s 79A. See R v Dolan (1992) 58 SASR 501.
Unlike the case of Turner & Williams however the failure to give s 79A rights and any audio visual record could not have adversely affected the accused. The accused’s circumstances are far removed from those of the accused in the Turner & Williams matter. The accused ought to have been given his s 79A rights. He was not. There was no interrogation of the accused until they arrived at the police station. There is a balancing exercise between not acquiescing in behaviour which cuts corners in terms of proper police procedure, and circumstances where there is no conscious disregard for the law. The fruits of the searches are materially cogent for the purposes of the charging of the accused.
In Police v Williams[23] Peek J reached a different conclusion highlighting the necessity to prevent judicial disapproval appearing hollow and insincere. In that case however the evidence of identification was of little value. The Court said that the discretion to exclude evidence is enlivened by the unlawful or improper police conduct. Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations. While the Court must be careful to protect the citizen from the abuse of police powers the Court must also be careful to ensure that the public interest in seeing the guilty convicted is not to be frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power nor the result of some systematic misunderstanding by police about the limits of that power.
[23] [2014] SASC 117.
I am of the opinion that there was no conscious impropriety by either Brevet Sergeant Miller nor Constable Matthews. They had attended pursuant to a call by police to look for a suspect within that confined area. This case involves serious offending by some person involving a home invasion and aggravated robbery. There is strong public interest in the detection and prosecution of persons responsible for such offending. Both officers honestly believed that they were acting lawfully at all times. Their respective errors involved detaining the accused after the powers in s 68 had been exhausted. The accused had only been under their detention for a total of 30 minutes. The accused was lawfully arrested at the end of that 30 minutes.
In this case, in my opinion, the administration of justice would not be demeaned by the admission of the evidence procured by the searches even though the search of the land was unlawful.
Conclusion
The accused did not give evidence on the voir dire, and no evidence was called on his behalf. I am conscious that in making findings on credit those findings relate solely to the question the exclusion of evidence, and do not touch upon whether the prosecution will be able to prove its case beyond reasonable doubt.
I have concluded that the initial detaining of the accused and the search of his person was lawful under s 68 of the Act. I do not accept that the initial questions as to what he was doing at Coglin Street, and where he had come from, breached s 74D of the Act. They were part of the investigations permitted in s 68. As Vanstone J noted in the case of Police v Moukachar [2010] 107 SASR 540 at [13]-[15], and affirmed by the Court of Criminal Appeal in R v Dam & Nguyen [2015] SASCFC 131 at [25].
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A, 74AB is to provide sanctions in the circumstances prescribed against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any one of those sections in order to ask the designated questions or any other questions. However there is no obligation to answer such questions unless one of those sections or some other statutory provision obliges the individual to answer. In my opinion this is so even if there was technically an impropriety or a failure to comply with s 74A of the Act.
This case does not involve an ongoing series of questions being asked of the accused. I accept that there was no conscious impropriety by Brevet Sergeant Miller. I have found that later he was a trespasser during the search of the property. I have found that his continued detention of the accused probably constituted a de facto arrest. Accordingly he was obliged to give the accused his rights under s79A. The question which remains is whether any tainted evidence should nonetheless be admitted in the exercise of my discretion pursuant to the principles expressed in Bunning v Cross.
I am of course conscious of the ‘high public policy’ identified by the High Court in Pollard v The Queen; and affirmed in R v Rockford, supra. It undoubtedly favours the exclusion of evidence unlawfully obtained by police. In this case there was an authorised purpose for the police to speak to the accused pursuant to s 68 of the Act. This is not a case where an accused person made various admissions which would not have been made save for the failure to give him his rights. Further in this case the failure to have an audio visual record of the search did not in my opinion affect the quality of the evidence produced by the search. The police officers did not deliberately flout the law.
In Coleman v Zanker, the police officers who approached cars at night had no reason to suspect that the accused had committed or was intending to commit any offence. Justice Olssen concluded that the process did not fall within s 68 and because the police officers had exceeded their authority by embarking upon an unlawful and an unauthorised search they couldn’t be heard to complain about the evidence being excluded pursuant to Bunning v Cross.
In R v Nguyen [2013] 117 SASR 432 the police had stopped a vehicle approaching premises in respect of which they were maintaining surveillance. The police had no suspicion about the car or its occupants. The suspicions centred upon the house. In those circumstances it was held the police did not have a reasonable suspicion authorising a search.
By contrast I have found that the entry by the police onto the land at Coglin Street was lawful, but that by remaining on the property for a period of 30 minutes, and conducting a search which also involved the occupier’s property, the police became trespassers.
Recently in R v Golja [2017] SASCFC 61 at [33]-[35] the Court of Criminal Appeal detailed various factors relevant as to the Judge’s discretion namely:
·The nature of the offence charged;
·The probative value of the evidence sought to be excluded;
·Whether the conduct of the police was deliberate or resulted from a mistake or misunderstanding of their obligations;
·The ease with which the police might have complied with the law;
·The legislative intension if any, in relation to the law that is said to have been infringed;
·Whether the conduct was encouraged or tolerated by those in higher authority in the police force.
On the facts of the subject case the two offences the subject of the information are serious offences. The evidence sought to be excluded was that obtained from the searches namely the cash, the mask, the beanie and the gloves which are highly probative of the charge in that it is evidence probative of identification.
I have no doubt that Brevet Sergeant Miller did his best to make his presence known to the occupants of the house. There was no response from anyone at the house and there was no specific revocation of the implied right to enter. I accept that the police officers genuinely but wrongly believed that they were not committing a trespass in those circumstances. I am satisfied that the officers did not consciously behave in a deliberately unlawful manner.
The failure to give the accused his rights under s 79A was placed on two bases by the accused. Firstly having detained him from 2.20am for a period of 30 minutes those rights ought to have been given. Secondly following the physical arrest he was not immediately given his rights under s 79A. Nothing turned upon the latter time because at that stage I accept that the accused was angry, and abusive and it was not practical to give those rights until he was taken to the police station. As to the failure to give rights during the period which he was detained for 30 minutes before the arrest I accept that Brevet Sergeant Miller even at that stage was waiting to see whether further information would be provided by Constable Worner. I am satisfied again that the officers did not consciously behave in a deliberately unlawful manner.
The conduct of the police did not affect the cogency of the evidence which was obtained on the search.
There can be no suggestion that in some way the breaches including failure to give rights was encouraged by those in higher authority or that their erroneous understanding of their rights to enter was shared by upper echelons of the force. I accept that the high public policy generally favours the exclusion of evidence procured by unlawful conduct.
In my opinion the behaviour of the police officers in this case was not one of defiance of the legislation nor calculated to disregard their obligations as referred to Bunning v Cross. This was a case where the two police officers had honestly but mistakenly believed that they had the right to remain on the property after doing all they could to establish contact with the occupier.

The subject case is far removed from those considered in R v Rockford, supra. In my opinion the police acted reasonably and sensibly. They had been conscious of the accused’s position.
Had they chosen to arrest the accused earlier and given him his rights under s 79A, the accused’s position would not have been altered.
The overwhelming balance as referred to in Bunning v Cross lies in favour of admitting the evidence of the fruits of the searches. The application for the exclusion of the evidence is accordingly refused.