R v Cardy - [2018] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARDY
[2018] SADC 3
Reasons for Decision of Her Honour Judge Davison
30 January 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Rule 49 application to exclude evidence of the search of the defendant's vehicle and handbag.
Held: Application dismissed.
Controlled Substances Act 1984 s 52, s 52(6), s 52(9); Road Traffic Act 1961 s 40(H); Narcotic and Psychotropic Drug Act 1990 s 11, referred to.
R v Nguyen (2013) 117 SASR 432; R v Chehil [2013] 3 SCR 220; R v Romeo (1982) 30 SASR 243, 271; Bunning v Cross (1978) 141 CLR 54, considered.

R v CARDY
[2018] SADC 3
Introduction

Sarah Anne Cardy is charged with the offence of trafficking a controlled drug. It is alleged that on 6 November 2016 at Brompton she trafficked in methamphetamines.
In the early hours of 6 November 2016, the police allegedly located the accused and another woman in a vehicle in Brompton. The police subsequently searched the motor vehicle and a bag was located in the passenger foot-well that is said to belong to the accused. Inside that bag the police allege they located a wallet containing her identification, and a black plastic container in which there were two plastic bags each containing methamphetamine weighing a total of 3.45 grams.
By notice dated 28 August 2017, the accused applied for an order that the prosecution not be permitted to lead evidence nor make reference to the ‘fruits’ of a search of a motor vehicle and handbag occurring at about 3:22 am on Sunday 6 November 2016 at Coglin Street, Brompton. The grounds relied upon in that notice are that the search was unlawful as the police did not hold the requisite suspicion on reasonable grounds that an offence against the Controlled Substances Act 1984 had been committed.
Voir Dire Hearing
A voir dire hearing was held. Evidence was called from Constable Wasley, Brevet Sergeant Yan and Constable Light.
Constable Wasley gave evidence that he was working with Brevet Sergeant Yan in the early hours of 6 November 2016. At that time, they were part of the uniform tactical team who were conducting duties on ‘Operation Waterford’ – an operation to reduce the levels of serious criminal trespass occurring in the areas of Bowden, Brompton and Ridleyton. He was the passenger in an unmarked white Holden station wagon. Whilst stationary on Chief Street at Brompton, he observed a silver Hyundai drive past the police fleet. He could make out that there were at least two occupants in the vehicle and the registration number was VVV 847. He activated the electronic mobile data terminal in the police fleet and ran a registration check. The registration check revealed that the vehicle was unregistered and uninsured. He then informed Brevet Sergeant Yan that he intended to stop the vehicle on that basis. Brevet Sergeant Yan drove the police car south on Chief Street, onto Hawker Street and then onto Coglin Street at Brompton. Whilst doing this, Constable Wasley also initiated a licence enquiry on the police system.
On Coglin Street, the police lights were activated and the Hyundai came to a stop. At that stage, Constable Wasley was utilising his powers pursuant s 40(H) of the Road Traffic Act 1961 to investigate the offences of driving unregistered and uninsured. The police car pulled in behind the Hyundai and Constable Wasley noticed the lights and exhaust still operating. The Hyundai then moved off again. When it stopped once more, Constable Wasley began to exit the police vehicle. However, when he stepped outside the police vehicle, the Hyundai moved off again. Constable Wasley then got back into the police fleet and the Hyundai again came to a stop.
Constable Wasley got out of the vehicle with Brevet Sergeant Yan remaining in the car in an event of a police pursuit. Constable Wasley then approached the Hyundai on the driver’s side and spoke to the driver, asking her to turn off the vehicle. She complied with that. He obtained a driver’s licence. He then recognised the passenger in the car as the accused, Sarah Cardy, as he has had previous dealings with her, including attending at her address and enquiries in relation to her son allegedly breaching his bail. At that stage, he was also aware of her involvement with her former partner, whom he alleged was a member of the Finks Outlaw Motorcycle Gang. He was also aware of her history of possession of controlled drugs, possession of equipment, and a recent conviction for trafficking. He said the nature of the information that he had received was that the accused was involved in selling drugs and collecting debts.[1] He said that he had received this information in September 2016 being about two months prior to the search on 6 November 2016.
[1] VDT 14.
Constable Wasley observed that the accused appeared to be “quite fidgety and I guess awake for 3:20 in the morning”.[2] He also described the manner of her touching the bag as “it almost seemed as if she was trying to put it under the seat, but it wouldn't go there.”[3] This bag was between her feet in the foot-well of the car. He then had a conversation with the driver of the car about the car being unregistered and she provided some paperwork in relation to the motor vehicle. He began examining the paperwork and making notes of the names on the paperwork. During that conversation, both occupants of the car were talking to him and said that they had recently purchased the car together, “that they were not doing anything wrong”.[4] He then returned to the police fleet and conducted licence checks on the driver. At that stage Brevet Sergeant Yan was in the driver’s seat and Constable Wasley assumed that he had remained there during the time he was speaking to the vehicle’s occupants. The licence checks indicated that the driver of the car was disqualified from driving and that she had what he described as “an extensive history which included selling and possessing drugs.”[5]
[2]    VDT 16.
[3]    VDT 16.
[4]    VDT 17.
[5]    VDT 18.
At that time, Constable Wasley formed a suspicion in relation to the vehicle and the accused and determined to search pursuant to s 52 of the Controlled Substances Act 1984.
His suspicions were based upon the time of the day being a Sunday morning at about 3:20 a.m., his knowledge that the accused was a considerable distance from her home in North Haven, the criminal history of both occupants of the motor vehicle including their drug history, and that both occupants appeared nervous when he was speaking to them. He was also aware of an association of the accused and her former partner with outlaw motorcycle gangs. In addition to this, his suspicion was enlivened by the accused’s possession of the bag and the way she was manipulating it, apparently trying to put it under the car seat.
He informed Brevet Sergeant Yan that he intended to search the motor vehicle. Brevet Sergeant Yan then approached Ms Park in relation to her licence disqualification. As a result of forming the view that there was a search required, Constable Wasley sought further assistance from a female police officer who arrived on the scene a very short time later. As part of the search of the motor vehicle he asked the driver to exit, then retrieved her handbag from the seat and began searching. This bag was the same bag from which Ms Park had earlier retrieved the vehicle documents. He did not locate anything of interest in that bag. At that time, the accused was on the passenger side. After the female police officer had arrived, she stood with the accused. Constable Wasley heard the accused say words to the effect of “you can search that if you like” in reference to the bag. Constable Light then conducted the search of the other handbag and located a container that appeared to contain the plastic bags. A number of other police officers arrived. The accused was arrested. Her home was then searched. In the course of that search, a mobile phone, a set of digital scales and numerous empty plastic resealable bags were located.[6]
[6] VDT 23.
When Constable Wasley was first cross-examined, he did not have his notes with him. He subsequently located his notes and cross-examination was continued at a later stage. During the course of the cross-examination, Constable Wasley’s attention was drawn to a statement that he had made in relation to this matter where he said “Cardy appeared to be trying to secrete a bag under her seat. She appeared to be having difficulty doing this as it was too large to fit under the seat”. Constable Wasley agreed that that was correct. He said that the bag appeared too large to fit under the seat. An item was produced to Constable Wasley and subsequently tendered. He agreed that the bag that was produced appeared to be the same or similar to the bag belonging to the accused. That bag became VDD2. He was also challenged in relation to his assertion that the accused’s recent drug history related to a conviction for a drug-related offence that was said to have occurred three years prior to the search of the vehicle. Further, he was challenged in relation to the intelligence that he had relied upon from some two months prior to the search. In re-examination, he was asked about his previous interactions with the accused and said that on other occasions when he had seen her, she did not appear to be under the influence of drugs, however on this particular morning she appeared to be particularly alert. This gave rise to a suspicion that she may have been consuming drugs.[7]
[7] VDT 59.
Brevet Sergeant Sasha Yan gave evidence. He confirmed that he was working with Constable Wasley in the early hours of 6 November 2016. He was driving the unmarked police vehicle. He gave evidence that he observed a light-coloured sedan that drove past his vehicle, that a police check was conducted on its registration and the results of that were that the vehicle was unregistered and uninsured. He was informed of this by Constable Wasley and also independently checked the computer. He then followed the motor vehicle. The police lights were activated for the purpose of conducting a traffic stop and he stopped the police vehicle about 3-4 metres behind the car in Coglin Street. As Constable Wasley stepped out of the vehicle, Brevet Sergeant Yan told him to get back into the car because the subject motor vehicle had driven off again. Constable Wasley then got out of the car once more and Brevet Sergeant Yan advised Police Communications of their location. At that time, the police vehicle was about 3-4 metres behind the subject vehicle. He observed Constable Wasley approach the passenger side of the vehicle. Brevet Sergeant Yan remained in the police vehicle to advise Police Communications about their location. He then took a breathalyser and approached the driver’s door for the purpose for conducting an alcohol test on the driver. At that stage Constable Wasley was, he said, on the footpath. There were further checks conducted in relation to the driver that indicated she was disqualified from driving and he discussed that with her. Other police officers arrived and at that time both occupants of the vehicle were outside the vehicle. He said that Constable Wasley commenced a search of the motor vehicle whilst he was looking after operational safety by standing with the accused and Ms Park who was the driver. He recalls a small black box being located in the vehicle.
Thereafter a tow of the motor vehicle was arranged and the driver was arrested for driving whilst disqualified. In cross-examination, he agreed that there was poor lighting on Coglin Street that night and was unaware as to whether Constable Wasley had used his torch. He agreed that he had not heard Constable Wasley articulate any suspicions that he had in relation to the vehicle.
Constable Light gave evidence. She was on duty with Constable Dunn when they were called to attend a vehicle stop. They arrived in Coglin Street, Brompton and observed a stationary silver Hyundai hatchback. When they arrived, two females were inside the vehicle and both Constable Wasley and Brevet Sergeant Yan was standing on the driver’s side of the vehicle talking to them. She spoke to Constable Wasley soon after her arrival and he informed her that he had a reasonable suspicion to search the two females in the vehicle. She did not go into any detail with him regarding his actual suspicion, but followed his direction to search the vehicle. Both females were asked to vacate the vehicle and stand on the footpath, which they did. She conducted the search of both females, commencing with the driver. After searching them, she searched a handbag. The accused informed her that it was her handbag. It was in the foot-well on the passenger side of the vehicle. In that handbag she located a floral wallet and a black sliding container in addition to a mobile phone. Inside the black container there were two zip lock bags containing a white crystallised substance. After she conducted the search she informed the other police officers of the items located. As a result, the accused was arrested and placed in the rear of the police vehicle in which Constable Light had arrived at the scene. A video interview was then conducted and subsequently there was a search of the accused’s home.
The bag that had been located in the motor vehicle was tendered as VDP3 and photographs were also tendered.
The accused did not give evidence.
Defence Counsel’s Submissions
Mr Aitken made submissions that the evidence of Constable Wasley in relation to his suspicions should not be accepted given the evidence of Brevet Sergeant Yan and Constable Light. He submitted that the evidence of Brevet Sergeant Yan contradicts the evidence of Constable Wasley in that Constable Wasley appeared, to him, to go directly to the passenger side of the vehicle and did not deal with the driver at all. He suggested that I may infer that Constable Wasley had seen the accused in the car and determined to search her without forming the suspicions to which he deposed.
He said that Constable Light relied upon on the assertion by Constable Wasley as to his suspicions, but did not form any suspicions of her own and as such, could not reasonably have searched pursuant to s 52(6) or s 52(9) of the Controlled Substances Act 1984. In addition to this, Mr Aitken drew a distinction between the evidence that had been given by Constable Light, that Constable Wasley told her that he had a reasonable suspicion to search the two females in the vehicle,[8] and her notebook recorded the following: ‘after a conversation with Constable Wasley I was informed that he formed the suspicion that both females needed to be searched’. She confirmed that was what was written in her notebook, although at no stage did she say that they were his exact words and at no stage did she recant on her earlier evidence that he had a reasonable suspicion.
[8] VDT75.
Mr Aitken drew my attention to the content of s 52(6) and s 52(9) of the Controlled Substances Act 1984. The first of those sections being that the authorised officer, who was a police officer, may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act. The power to search the motor vehicle pursuant to s 52(9) is drawn in arguably wider terms that if an authorised officer, who was a police officer, reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, the officer may then do a number of things. The search of the individual was conducted by Constable Light. She searched the accused having heard from Constable Wasley that he had a reasonable suspicion.
Mr Aitken also submitted to me that Constable Wasley should not be accepted as a reliable witness given the evidence of Brevet Sergeant Yan and Constable Light. Mr Aitken criticised the evidence of Constable Wasley and suggested that if the evidence of Brevet Sergeant Yan was to be accepted, and it should be, Constable Wasley did not go to the driver’s side of the car at all as he had said. He suggested that I may infer that Constable Wasley was aware that the accused was in the passenger side of the vehicle and was determined to search the vehicle and her, come what may. He has submitted that I could not accept the evidence of Constable Wasley as truthful and accurate. I do not intend to repeat in these reasons all of Mr Aitken’s arguments, rather I indicate that I have taken them into account.
Prosecution counsel’s submissions
Ms Park addressed on behalf of the prosecution. She submitted that Constable Wasley’s evidence was creditable and reliable and that any inconsistencies are not fatal to an acceptance of his evidence. She urged me to accept that Constable Wasley formed a reasonable suspicion based upon a number of features that he outlined, including the time of night, his knowledge of the accused, her demeanour on that night, her actions in relation to the handbag in the foot-well of the car, his information in relation to her offending and the information in relation to the offending of the driver of the vehicle. She submitted that was sufficient to found a reasonable suspicion on his part and he could seek the assistance of another officer, in particular of a female officer, to undertake the search of the accused who is of course female.
Findings
I accept the evidence of Constable Wasley in relation to the circumstances of the following and stopping of the motor vehicle in which the accused was a passenger. I accept his evidence in relation to his attendance at the driver’s side of the vehicle in the first instance, where he ascertained the name of the driver and the circumstances in which the motor vehicle had been obtained. These details were recorded in his notebook. I found Constable Wasley to be a careful, cogent and thoughtful witness. He was the exhibits officer in relation to the matter. Where he was uncertain in his evidence, he said so. Where his evidence differs to that of Brevet Sergeant Yan, I accept the evidence of Constable Wasley. Brevet Sergeant Yan remained in the police fleet for some time after Constable Wasley had alighted, occupied with other duties.
Whilst there remains a possibility that Constable Wasley initially went to the passenger side of the accused’s vehicle, I do not think anything really turns on this point. In any event, it is most unlikely, in circumstances where a police officer had stopped a vehicle because it was unregistered and uninsured and the vehicle had on a number of occasions moved off after initially stopping, that he would have remained there for any length of time. I accept that Constable Wasley removed the keys from the motor vehicle so that the vehicle could not be moved by the driver. By the time Constable Light attended, both Constable Wasley and Brevet Sergeant Yan were standing by the driver’s side window.
I accept that Constable Wasley saw the accused fiddling with her handbag as if to try and secrete it. Although it is not a large bag, the photos taken after it was seized,[9] show a number of items within it, including a wallet. The space under the passenger seat is not large and the circumstances in which the accused found herself, especially when she realised the police officer was a person with whom she had had previous dealings, are such that this could be so. There is nothing inherently unlikely or implausible about this evidence. The fact that Constable Wasley thought the bag was too large to go under the seat is no more than a conclusion he drew from his observations. Whether it was or not is irrelevant. I reject the argument that Constable Wasley was dishonest in his evidence in relation to this assertion for the reasons I have given.
[9] VDP1.

I do not accept the criticisms that have been made of Constable Wasley by Mr Aitken that he did not form the requisite suspicion. Constable Wasley was able to explain in great detail each of the suspicions he held, and the reason for them.
Constable Wasley was criticised for his lack of notes. Whilst the taking of accurate notes is advisable and good practice, a lack of them is by no means fatal to the acceptance of a witness’s evidence. Constable Wasley became the exhibit officer and took other notes. He began a declaration statement about a month after the incident where he apparently documented his actions and he appeared to have a good recall of events.
To some extent, the evidence of Constable Wasley is supported by the evidence of Constable Light.
I accept that he alighted from the car, went to the driver’s side where he removed the keys and then spoke to the driver in relation to the vehicle, thereby discovering that she was disqualified at that time. These police officers were engaged in a stop of a motor vehicle in relation to traffic offences. The traffic offences were committed by the driver of the vehicle. There is no reason to think that the police officer, being Constable Wasley who first alighted from the police fleet, would have done anything other than go to the driver’s side of the car even if he initially moved towards the passenger side of the vehicle. I accept that at that time, Brevet Sergeant Yan remained seated in the police car and was communicating with Police Communications in respect of their location so that assistance could be provided. In addition to this, given the behaviour of the vehicle stopping and starting, there was a possibility that the vehicle would again try to leave the scene and this may have necessitated Brevet Sergeant Yan following the vehicle.
When Constable Light arrived at the scene, both women were still in the car and the suspicions of Constable Wasley had already been aroused. These suspicions were:
·The time of day being a Sunday morning at 3.20a.m.;
·The accused was fidgety and appeared to be full of energy;
·The accused being a reasonable distance from her home at North Haven;
·The previous dealing he had had with the accused that led to his knowledge of her criminal history, including possession of controlled drugs, possession of equipment and a recent conviction for trafficking;[10]
·His knowledge that the driver of the vehicle also had a history with illicit drugs;
·The accused’s association with a recently deceased full member of the Finks outlaw motor cycle club;
·Recent intelligence that the accused was selling drugs and collecting debts, obtained about 2 months before;
·Her apparent state of intoxication by drugs;
·The accused’s suspicious touching of her handbag in the foot-well of the car as Constable Wasley said:
I couldn’t quite make it out, but it seemed unusual in that she wasn’t putting anything into it or taking anything out. I wasn’t quite sure what she was doing and it almost seemed as if she was trying to put it under the seat, but it wouldn’t go there.[11]
[10] VDT14.
[11] VDT16.
These considerations aroused in Constable Wasley a reasonable suspicion in relation to both the accused and the vehicle. There is nothing unusual about considering that if a person is, as he suspected Ms Cardy was, intoxicated by a drug that they may have that substance on their person or alternatively in the car at that time. This is a natural inference to draw from the circumstances. In addition to this, he was armed with information in relation to Ms Cardy, her associates and intelligence in relation to police matters. All of these suspicions combined lead to more than “mere curiosity, speculation or idle wondering” on his part.
This is addressed in R v Nguyen.[12]
Importantly, s 52(6) and s 52(9) of the CSA 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 CSA 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 much of its utility, to demand material which supports a positive belief in the existence of the relevant facts. [footnotes omitted]
[12] (2013) 117 SASR 432, 22.
The issue of reasonable suspicion was also considered in R v Chehil [2013] 3 SCR 220 at [29]-[35]:
Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.
A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion because it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for a search: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown,at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.
Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident.
However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.S. 1 (1989), at p. 10 (citing Illinois v. Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts”. In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search: see Kang-Brown, at para. 92.
Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant’s submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act.
There is no reason to think, bearing in mind these issues, that Constable Wasley did not and could not have formed a reasonable suspicion in the circumstances that warranted the exercise of his powers pursuant to s 52(6) and s 52(9) of the Controlled Substances Act 1984.
An analysis of the information, observations and considerations of Constable Wasley that I have accepted he had at the time of the searches, leads firmly to the conclusion that he held a reasonable suspicion that is objectively discernible and supported. I am satisfied that Constable Wasley had a reasonable suspicion and that this was objectively correct. The searches are therefore lawful and the items located as a result of the searches were lawfully obtained.
I reject the argument that Constable Light could not lawfully have conducted a search of the accused in the circumstances. I accept that she was, as she said in evidence, told by Constable Wasley that he entertained a reasonable suspicion as to the accused. As Cox J said in R v Romeo,[13] when dealing with an issue of a search pursuant of s 11 of the Narcotic and Psychotropic Drug Act, (although the section speaks in terms of a police officer or an authorised warrant holder conducting the searches in question) there is often a need, and reasonably so, for assistance to be granted that must have been in the contemplation of Parliament, and that right to call for help may reasonably be considered to be implicit in the grant of power itself. As his Honour notes, ‘furthermore a constable always has the right whether the need arises to call upon others to assist him in the exercise of his lawful authority.’ He went on to note that the matter was not fully argued before the court.
[13] (1982) 30 SASR 243, 271.
In the circumstances, I am satisfied that either Constable Light had the requisite suspicion as a result of the conversation with Constable Wasley or that such a state of mind is not necessary for her where Constable Wasley had the necessary state of mind (being a reasonable suspicion in relation to the accused having in her possession a substance or equipment in contravention of the Act and that any substance that would afford evidence of an offence against the Act was in the vehicle) and had sought her assistance as a female officer for the purpose of searching a female suspect and her handbag.
In the event that the search was unlawful as a result of Constable Light conducting it, I have a discretion to admit the evidence if after giving consideration to the principles as outlined in Bunning v Cross[14] I consider that is appropriate.
[14] (1978) 141 CLR 54.
This discretion, has as one of its factors, a consideration of any unfairness to the accused. In the circumstances, it is difficult to see how the police, having engaged a female police officer to conduct the search of a female and her handbag, could result in any unfairness to her. Indeed, it is to the contrary, the police were attempting to provide the accused with some privacy and protection of her modesty. Any unlawfulness was therefore inadvertent. It could not be said to be motivated by mala fides or be malicious. The cogency of the evidence, being the items in the handbag, was unaffected and it is of considerable probative value. I would therefore admit the evidence in the exercise of my discretion.