R v Carter - [2020] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARTER
[2020] SADC 27
Reasons for Ruling of His Honour Judge Durrant
23 March 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
1. The accused applied an order that the prosecution not be permitted to lead evidence of items indicative of drug trafficking obtained during a search by Police of a truck he had been driving.
2. Application dismissed.
Heavy Vehicle National Law (South Australia) Act 2013 ss 521, 3(a), 5, Division 6, 26; District Court Criminal Rules r 49; Traffic Act 1961 s 47, Schedule 1, Part 4, Cl 8(3), referred to.
Bunning v Cross (1978) 141 CLR 54; Barker v R (1983) 153 CLR 338; TCN Channel Nine Pty Ltd v Henry Alfred Anning [2002] NSWCA 82 ; Cleland v R (1982) 151 CLR 1, considered.

R v CARTER
[2020] SADC 27
Introduction

Senior Constable Petts is a member of the Heavy Vehicle Enforcement Section of SAPOL. Following a tip-off, he made a roadside stop of a prime mover and anticipated an investigation of contraventions by the owner of the truck under the Heavy Vehicle National Law[1] (HVNL) and the Controlled Substances Act 1984. Instead, Mr Carter was driving and the owner was nowhere to be seen.
[1] The National Heavy Vehicle Law commenced on 10 February 2014 by application of the South Australian Heavy Vehicle Law National Law text, pursuant to s 4 of the Heavy Vehicle National Law (South Australia) Act2013.
SC Petts interrogated Mr Carter’s work diary and an alco test and drug swipe for methylamphetamine was obtained. SC Petts entered the cabin and undertook a search which located plastic resealable bags containing methylamphetamine, scales, two mobile phones and text messages indicative of drug trafficking.
Mr Carter has pleaded not guilty to trafficking in a controlled drug.[2] The prosecution propose to lead evidence of the search at trial.
[2] Section 32(3) of the Controlled Substances Act 1984.
The accused has applied to exclude from the evidence at trial the items found.[3] He says they were unlawfully obtained because SC Petts entered the cabin with the sole intention of searching for drugs and when he had no lawful basis for doing so. He says SC Petts was, in fact, a trespasser. Alternatively, Mr Carter says that even if SC Petts had a dual intent: to unlawfully search for drugs and to lawfully investigate contraventions of the HVNL, the search was infected by the unlawful intent.
[3] District Court Criminal Rules r 49.
It is agreed that there was no basis, when he entered the vehicle, for SC Petts to reasonably suspect an offence under the Controlled Substances Act 1984 sufficient to allow him to search for drugs. The prosecution contends that SC Petts was lawfully entitled to enter the cabin as an authorised officer under the HVNL because he held the requisite reasonable belief to allow a search under that law. [4]
[4] Section 521 of the Heavy Vehicle National Law (South Australia) Act2013.
Mr Carter bears the onus, on the balance of probabilities, of satisfying me that the state of mind of SC Petts when he entered the cabin was as he contends.
If SC Petts, when he entered the cabin, had a reasonable belief that an offence under the HVNL had occurred and entered with the sole intention of investigating such contravention, it is conceded by the defence that the search was lawful and the application should be dismissed.
In the event SC Petts entered the cabin with the sole intention of searching for drugs, it is conceded by the prosecution that he was acting as a trespasser and the application should be granted.
In the event SC Petts entered the cabin with the dual intention of lawfully investigating a contravention of the HVNL and of unlawfully searching for drugs, a dispute arises. The defence says that the law requires, in such case, that the evidence of drug trafficking be excluded or alternatively, that I should exercise my Bunning v Cross discretion to exclude that evidence.[5] The prosecution contends, in such a circumstance, that the entry would have been lawful and the discretion referred to in Bunning v Cross does not arise for consideration and the evidence of drug trafficking cannot be excluded as a matter of law. Alternatively, if it is wrong in that submission as to the law, the prosecution contends that it would not be an appropriate case for the exercise of my discretion to exclude.
[5] Bunning v Cross (1978) 141 CLR 54.
The application to exclude was argued at a voir dire. The application is dismissed and my reasons follow.
Findings of Fact
Only one witness was called, SC Petts. The single issue in dispute was the state of mind of SC Petts when he entered the truck to search.
I make the following findings of fact, on the balance of probabilities and for the purpose of the application.
The Tip Off
On 18 May 2018, SC Petts received a phone call tip off from an anonymous source that the owner of a prime mover truck[6] was a person who should be pulled over[7] because he was a drug user, had recently purchased the vehicle for $90,000 cash and his truck was capable of travelling faster than the heavy vehicle maximum speed limit.[8] Following that phone call, SC Petts undertook some checks on the owner, emailed his fellow members of the Heavy Vehicle Enforcement Section with details of the tip-off and asked them to keep a lookout.[9]
[6]    Registration SB15NK.
[7]    T 31.33-32.10.
[8]    The maximum default speed limit for heavy vehicles is 100 km per hour in South Australia (and nationally).
[9]    Exhibit P3 email of SC Petts dated 18 May 2018.
The supervisor of the Section, Sergeant Foyle, replied all[10] with further information concerning potential contraventions of the HVNL and drug offending by the owner of the truck. The contraventions went to the heart of the objects of the HVNL, which include the establishment of a national scheme to regulate the use of heavy vehicles and promote public safety.[11]
[10] Exhibit P4 email of Sergeant Foyle dated 21 May 2018.
[11] See s 3(a) of the Heavy Vehicle National Law (South Australia) Act2013 and T 89.16-19.
The Sighting
SC Petts sighted the prime mover while driving to work in his civilian vehicle. He continued his journey and after kitting up, he jumped in a patrol car with another officer to see if they could locate the truck.[12]
[12] T 35.13-34.
The Stop and Search
The officers located the truck in a transport depot at Gillman. They waited and pulled the truck over about 400 metres along Wilkins Road.
SC Petts video recorded his interactions with the driver and his subsequent search of the truck.[13] He asked Mr Carter, “How you going mate? I just want to look at your work diary, that’s all”.[14]
[13] Exhibit P1 – CD of body worn camera footage.
[14] Exhibit P1 (00:44).
Mr Carter, as a regulated driver under the HVNL, was required to keep a work diary containing daily sheets in the approved form. [15] Daily sheets must detail, in the time zone of the driver’s place of residence,[16] activities undertaken for that day. A regulated driver must produce to an authorised officer, upon request, their work diary. SC Petts was an authorised officer.[17]
[15] See Division 6 National Heavy Vehicle Law (South Australia) Act 2013.
[16] In this case Eastern Standard Time.
[17] T 31.4-9; s 5 National Heavy Vehicle Law (South Australia) Act 2013.
Mr Carter handed over his work diary. He then got out of the truck and also handed over his driver’s licence.[18] SC Petts realised that the truck was not being driven by the person of interest who had been the subject of the tip-off.
[18] Exhibit P1 (01:20).
SC Petts asked Mr Carter who he worked for. Mr Carter said he worked for his mate, the person of interest. The Senior Constable asked Mr Carter where he was “off to today” and Mr Carter replied he was going to Edinburgh.[19]
[19] Exhibit P1 (01:49).
Two detectives, with experience and expertise in investigations under the HVNL and of drug offences,[20] had been put on standby in the event they were required to assist. SC Petts radioed one of the detectives:
“… correct truck, not the [person of interest] got a different bloke looks like he’ll have similar problems do you just want to let [Sergeant] Darryl [Foyle] know if he wanted to come and download the truck.”
[20] T 73.23-32: T 90.8-19: T 95.10-18.
Sergeant Foyle had expertise and experience, that exceeded that of SC Petts, in downloading speed limit information from the type of truck being driven by Mr Carter.[21] Such downloaded information is regularly obtained by the Section to assist in the consideration of contraventions of the HVNL.[22]
[21] T 60.27 – T 61.20.
[22] T 39.9-25: Exhibit P1 (02:22).
The detective asked, “Do you want us to come down anyway or just hold off until you guys find anything worth looking at?”. SC Petts replied, “Just stand by Mark we’ll call you if we need you.”[23]
[23] Exhibit P1 (03:05).
SC Petts sat in his patrol car and reviewed the work diary. He considered it to be incomplete as there were no activity entries since the recorded start time of 10am (EST) that morning. He considered that the failure by Mr Carter to properly complete the work sheet constituted an offence under the HVNL. He obtained information provided by a safety camera which showed the truck had been on the road earlier than 10am (EST). SC Petts therefore considered that the work sheet was incorrect and that Mr Carter had committed another offence under the HVNL.[24]
[24] Exhibit P1 (0:41).
The other officer at the site had, in the meantime, undertaken a drug swipe.[25] He placed the swipe on the dashboard of the patrol car in front of SC Petts who instructed, “Keep an eye on him [Mr Carter] I’ll just keep working on the book, you just keep working on him”.
[25] Road Traffic Act 1961 s 47 EAA.
The other officer agreed but also announced, “I was just gonna get up and do some fuel receipts and stuff”.[26] Fuel receipts, purchase receipts or consignment or delivery dockets or notes provide helpful data, as to location and time of driving, in the investigation of contraventions of the HVNL.[27] A search for those type of documents by the Heavy Vehicle Enforcement Section is commonplace and consistent with the role and purpose of the Section. It was also commonplace and consistent with the role and purpose of the Section to search mobile phones which may contain directions from employers and pay records. [28] SC Petts told the other officer, “Nah, nah keep obs on him [Carter] till”.[29]
[26] Exhibit P1 (04:13-04:20).
[27] T 44.23-35.
[28] T48.28-T49.4.
[29] T 44.23-35.
SC Petts told Mr Carter that a safety camera had recorded him driving his truck prior to his recorded start time. He asked Mr Carter what he had been doing in Hewitt the previous night, whether he had made a delivery and what he had delivered. He informed Mr Carter that he was going to search the truck.[30]
[30] Exhibit P1 (11:20-13:30).
By the time SC Petts said he was going to search the truck he believed that offences had been committed by Mr Carter under the HVNL. It was his usual practice to only search a vehicle under the HVNL after he had formed such a belief.[31] He believed that the truck was being or had been used to commit those offences or that the vehicle may provide evidence relating to those offences. That belief was founded on the work sheet for that day being incomplete as it did not detail where Mr Carter had been and the discrepancy between the start time recorded on the work sheet and the record of a safety camera showing the truck had been on the road earlier than 10am.
[31] T46.28-36.
SC Petts entered the truck and picked up and examined documentation lying on the console of the cabin. He saw and picked up two mobile phones in the cabin. He looked at the screen of one of the phones and partially saw a message, “that to [him] seemed like it was from a person trying to buy drugs or looking for favours to buy drugs”.[32]
[32] Exhibit P5.
Consideration
The defence submits that SC Petts, “… was always going to search the truck [for drugs] come what may in line with his suspicions from the email or the tip off he had received”.[33]
[33] T49.5-9; T97.1-7.
My factual findings do not support that submission. If SC Petts had that intention when he pulled over the truck, his actions show that he had changed his mind once he realised Mr Carter was the driver.
SC Petts had put the detectives, experienced in the investigation of drug offences, on standby anticipating the person of interest would be driving the truck. When that did not turn out to be the case, SC Petts stood them down. SC Petts did not think the detectives were required in respect of what he then considered to be a routine stop, rather than what he had contemplated might arise if the person of interest had been driving: a “larger scale drug type operation”.[34]
[34] T 95.8-18.
When the other officer in attendance announced he would search the truck, SC Petts told him not to do so. SC Petts continued to focus on his careful examination of the work diary and continued to question Mr Carter concerning his activities as a regulated driver and where he had been and the timing of his journey. The questions which had been put to and the documents which had been sought from Mr Carter by SC Petts had been directed to a consideration of the HVNL.
When SC Petts told his partner to hold off the search of the truck, he had in mind the power of an authorised officer under the HVNL to enter a vehicle for investigation purposes[35] but wanted to complete his consideration of the work diary and talk to Mr Carter further. SC Petts had been aware that a positive drug swipe could not be used to enable a search to be carried out under the Controlled Substances Act 1984.[36] He also maintained a practice that he did not carry out a search under the HVNL until he believed an offence had been committed.
[35] Where the officer reasonably believes the vehicle is being used, or has been used, to commit an offence against the National Heavy Vehicle Law or that the vehicle may provide evidence of an offence against that law: s 521(1)(a) and (b).
[36] Road Traffic Act 1961, Schedule 1, Part 4, Cl 8(3): the results of a drug screening test may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant. While the evidence of SC Petts suggested he did not fully appreciate the prohibition in the Road Traffic Act 1961, his clear understanding was he was not to search vehicles based solely on a drug screen test: T 81.28-35.
The words and actions of SC Petts indicated his interest was the HVNL. He was a member of a section devoted to the enforcement of that law. The tip off which came to him related to a heavy vehicle. The potential presence of drugs, as part of or separate to offending under the HVNL, also was part of the tip but his focus was the driver person of interest and the vehicle and the HVNL. If drugs were involved, that would be a matter for the detectives.[37]
[37] T 65.17-19.
The behaviour and focus of SC Petts was, when he learnt it was Mr Carter driving the truck, consistent with a recalibration to a standard traffic stop. He asked Mr Carter questions about and for documents specific to the HVNL. SC Petts was cautious and thorough in his investigation.
In respect of the person of interest, SC Petts did have in mind that drugs could be present: he had the detectives on standby. It would be artificial to expect SC Petts to not also consider the potential of other offending when he stopped Mr Carter under the HVNL. That is what Police do every day. SC Petts was conscious, as he should have been, of the potential that other offences may have been committed by Mr Carter or may become apparent. His recognition that the text message related to potential drug dealing is an obvious example of that consciousness. That SC Petts was mindful of the potential for drug offending when he stopped Mr Carter does not mean that he had the intention to undertake a search under the Controlled Substances Act 1984, come what may.
On the balance of probabilities, I find that SC Petts, when he entered the truck, held a reasonable belief that an offence or offences under the HVNL had taken place. I further find, on the balance of probabilities, that his sole intention was to carry out a search relating to an investigation of an offence or offences under the HVNL.
His action in entering the truck - to solely search under the HVNL - was therefore lawful. There is no basis to exclude the evidence of potential trafficking of drugs and the application should be dismissed.
I have, as a counter factual, considered - if the concurrent mindfulness of SC Petts in respect of drug offending was in effect a dual purpose for entering the truck- whether the search would have been unlawful.
In Barker v R, Mason J (as he then was) held:
If a person enters for a purpose which is within the scope of his authority his entry is authorised; it is not made unlawful because he enters with another and alien purpose in mind. The performance of acts with a view to the attainment of that alien purpose does not relate back to his entry to so as to endow it with a trespasory character.[38]
[38] Barker v R (1983) 153 CLR 338 at [347].
I accept the submissions of the prosecution that SC Petts could not have been, when he entered the cabin, both a trespasser and not a trespasser.[39] That he entered the vehicle for both the lawful purpose of investigating a contravention of the HVNL and for an unlawful purpose of searching for drugs, does not mean he was a trespasser. Whether SC Petts entered as a trespasser must be ascertained objectively, at the time of entry. [40]His entry was authorised by the HVNL and his entry was lawful.
[39] Ibid at [341] and [352].
[40] Ibid at [353].
Counsel drew my attention to the reasons of Brennan and Deane JJ in Barker v R[41] as potentially constituting a divergence with the position expressed by Mason J quoted above. That potential “divergence” has been averted to by Spigelman J in the New South Wales Court of Appeal[42]. Respectfully, in my view there is no divergence in Barker. Brennan and Deane JJ were concerned with the difficulty of identifying the scope of a limited permission to enter (as arose on the facts in Barker). Their Honours postulated a dual purpose, one lawful but limited and the other unlawful, and that such a case would present a difficulty in the identification of the scope of the permission to enter. There was no demurrer from the proposition of Mason J that where a person enters for a purpose which is within the scope of authority, the entry is authorised and is not made unlawful because the person enters with another and alien purpose in mind.
[41] Ibid at [365].
[42] TCN Channel Nine Pty Ltd v Henry Alfred Anning [2002] NSWCA 82 at [37].
If I am wrong about that and the dual unlawful purpose infects the search such as to enliven my Bunning v Cross discretion, I would decline to exercise the discretion to exclude.
That discretion is based on public policy and arises where the evidence has been obtained unfairly or illegally.[43] In the exercise of that discretion competing public requirements must be considered and weighed against each other. On the one hand, the public need to bring to conviction those who commit crimes. On the other, the public interest in the protection of the individual from unlawful and unfair treatment.
[43] Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1.
The matters relevant to the exercise of the discretion will vary. [44]
[44] Bunning v Cross at [75].

In this case, SC Petts recalibrated his approach to effect a routine stop process when it was apparent Mr Carter was driving. He put the detectives on standby. He carefully examined the work diary and questioned Mr Carter concerning his activities as a regulated driver. He considered he was entering the truck lawfully: he did not enter until he believed an offence had been committed. There was no deliberate disregard for the law and he was not cutting corners. Finally, the evidence is critical to the offending prosecuted.
In those circumstances, the undesirable effect of curial approval, or the encouragement of unlawful acts would have less weight than the desirable goal of bringing a wrongdoer to conviction.
The application to exclude is refused.