R v Chen & Liu - [2023] SADC 10

District Court of South Australia
(Criminal: Application)
R v CHEN & LIU
[2023] SADC 10
Reasons for Ruling of his Honour Judge Stretton
2 February 2023
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The accused are charged with serious drug offending. As a result of several factors, Police allegedly formed a suspicion pursuant to section 52(9) of the Controlled Substances Act 1984 (the Act) that material that would afford evidence of an offence against the Act was in a vehicle being driven by the accused. The vehicle was consequently searched, and a significant quantity of methylamphetamine was located in the glovebox. The accused applied for the exclusion of that evidence at trial on the basis that either Police did not actually hold a suspicion, or if they did it was not reasonably held. It was common ground there was no other legal basis for the search.
HELD: The Police did hold a reasonable suspicion pursuant to section 52(9) of the Controlled Substances Act 1984. Accordingly the search was legal, and the evidence should be admitted at trial.
Controlled Substances Act 1984 (SA) s 52(9), referred to.
George v Rockett (1990) 170 CLR 104; Ruddock v Taylor (2005) 222 CLR 612; R v Rogers (2011) 109 SASR 307; R v Willingham (No2) [2012] SASFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASFC 7; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Golja [2016] SASCFC 61, considered.

R v CHEN & LIU
[2023] SADC 10

The accused are jointly charged with the offence of trafficking in a controlled drug at Woodville Park on 26 January 2021. It is alleged that the controlled drugs were located in their possession when police stopped and searched a hire car in which Ms Liu was the driver, and Mr Chen the passenger.
The Application
The accused Mr Chen has applied for orders that all evidence relating to items seized by police as a consequence of a search of the Nissan Qashqai registration S466 CAW on 26 January 2021 be excluded from evidence.[1]
[1] The formal R39 application to exclude evidence was lodged by counsel for Mr Chen, however Ms Liu supported the application insofar as it applied to her.
The accused submitted that there was no lawful basis for the search of the vehicle at the time the search was conducted.
The accused submitted that at the time officers commenced the search they did not hold the requisite suspicion pursuant to the Controlled Substances Act 1984 (“the Act”) and that as a consequence the evidence was illegally obtained and ought to be excluded as a matter of public policy.
At the hearing of the application, the application was refined. The accused conceded that the stopping of the vehicle was lawful pursuant to applicable traffic legislation. It was common ground that the relevant decision was the decision to search the vehicle, the relevant timing was the time at which the decision was made not the time of the commencement of the search, and the relevant belief was the belief held by the police officer who made the decision.
The Law
Section 52(9) of the Controlled Substances Act 1984 sets out the basis upon which a police officer may search a vehicle under the Act. It provides:
(9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)detain and search the vehicle, vessel or aircraft; and
(c)seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
The law is straightforward. A police officer is an authorised officer under the Act. To search a vehicle pursuant to the Act a police officer must reasonably suspect that any substance or equipment that would afford evidence of an offence against the Act is in the vehicle, and such suspicion must be reasonable in the totality of the circumstances of which the officer is aware. A suspicion is something less than a belief, but more than idle wondering or speculation. The court applies the settled law as set out in a series of Supreme Court and High Court cases.[2]
[2] George v Rockett (1990) 170 CLR 104; Ruddock v Taylor (2005) 222 CLR 612; R v Rogers (2011) 109 SASR 307; R v Willingham (No2) [2012] SASFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASFC 7.
The course of proceedings
Evidence was called from the two police officers who pulled over the vehicle in which the accused were travelling.
Detective Brevet Sergeant Goud (Detective Goud) was the officer who purported to form the requisite belief pursuant to the Act and consequently made the decision to search the vehicle. His evidence was contested by the defence and accordingly he gave evidence on oath and was cross-examined.
Brevet Sergeant Porter was present when Detective Goud made the decision to search, and he participated in the subsequent events. His evidence was not contested and was given by way of two tendered affidavits.
The prosecution tendered four intelligence reports which Detective Goud said formed part of the material upon which he based his suspicion,[3] registration details of a Chrysler Sedan belonging to the accused at the relevant time,[4] and a photograph of the seized drugs pictured together with a positive presumptive test for methylamphetamine.[5] Defence counsel tendered a photograph of a Nissan Qashqai, which was the type of vehicle in which the accused was a passenger when police conducted the search.[6] There were two agreed facts.
[3]     Exhibits VDP1, VDP2, VDP3, VDP5.
[4]     Exhibit VDP4.
[5]     Exhibit VDP6.
[6]     Exhibit VDD7.
The Evidence
Detective Goud gave evidence that he has been a police officer since 2011. He is currently a Detective Brevet Sergeant working in the Serious Organised Crime area. His experience includes time on patrol and in several arms of the Criminal Investigation Branch (CIB).[7]
[7] T14.
In January 2021 he was working in CIB Western Volume Crime, which he explained is a division that predominantly focuses on recidivist offenders, often involving drug-related offending or property and theft matters. Detective Goud gave evidence that he had conducted numerous traffic stops and drug searches over the years. He said that in his experience, people who are stopped for drug and firearms offences will often be more guarded in their interactions with police than those who are simply stopped for a traffic violation.[8]
[8] T15.
Detective Goud gave evidence that he was working the afternoon shift on 26 January 2021 with Brevet Sergeant Porter. At about 8pm they were driving back to the police station from an enquiry and decided to drive past a house in Leslie Street, Woodville that was what police describe as an ‘address of interest’.[9]
[9] T17.
Detective Goud said he was aware that the occupant of that house had recently been arrested for an unrelated matter and explained that it was common in these circumstances for police to do drive-bys of such addresses to gather intelligence in relation to vehicles of interest that may be parked in the vicinity.[10] The occupant of that address was David Piening who was suspected of actively manufacturing and trafficking methamphetamine and GHB and had been arrested earlier that day for attempted murder.[11]
[10] T17.
[11] T18.
Detective Goud gave evidence that as they drove past the address in Leslie Street, his attention was drawn to a white SUV parked on the opposite side of the street to the direction of travel. He observed that this vehicle was parked differently than other vehicles on that street as it was positioned partially up on the verge. He also observed the accused in this matter, whom he recognised from prior encounters, getting into the front passenger seat of that vehicle.
Detective Goud gave evidence that he asked Brevet Sergeant Porter to call their office and speak to a Detective Murdoch as Detective Goud was aware that the accused had been stopped the previous night in a white SUV rental vehicle. Detective Goud was aware that the accused had been the lone occupant of the vehicle on the previous evening and had been found in possession of a piece of paper which had a parcel locker number noted on it. When contacted, Detective Murdoch confirmed that it was the same vehicle.[12] Police intelligence documentation reflecting the events of 25 January 2021, being the day prior to the accused’s arrest, was tendered.[13]
[12] T19.
[13] Exhibit VDP1.
Detective Goud said he knew that the accused had previously been convicted of importing precursors used for the manufacture of a controlled substance and that the accused had also been charged with manufacturing and trafficking controlled substances on another occasion, of which he was ultimately acquitted.
Detective Goud gave evidence that he also knew that the white SUV had been spotted by police the previous evening near the address of a male whose fingerprints had been located on drug manufacturing glassware tendered as evidence in the same trial in which the accused was acquitted of the offences of manufacturing and trafficking controlled substances.[14]
[14] T 21.
Detective Goud gave evidence that he was aware from speaking to the investigating officer in the accused’s previous criminal matters that one of the methods by which the accused had allegedly imported illicit precursors involved the use of parcel lockers in different people’s names. Accordingly, his suspicions were particularly raised when he heard that the accused had been located the night before in a rental vehicle with a parcel locker notation near the address referred to.
Detective Goud gave evidence that he was also aware of an intelligence report dated 21 October 2020 noting a vehicle registered to the accused parked out the front of Mr Piening’s house.
Detective Goud drew some of these elements together, and said:[15]
[15] T24-25.
So I'm fully aware of what vehicle Mr Fu Chen drives which has always been a Chrysler 300 which has been registered to him. Obviously as I explained earlier on, we conduct drive-bys to link vehicles as it potentially could suggest that persons are associating with each other. So when I read this previous street check that Mr Chen was in a rental vehicle and then seeing the rental vehicle the next day that raised my suspicion because it's commonly known that people that are up to badness use rental vehicles, especially if they are aware that police are aware what vehicles they're driving because it's just another way for them to mask themselves moving through Adelaide because when we drive around and we do a registration check, it just comes up as a rental car or it's often registered to a company. So we can't actually identify the driver that way.
…
So this street check report tells me that Mr Chen's vehicle has previously been seen near the premises of Mr Piening.
Detective Goud referred to a further street check report relating to events on 26 December 2020 where the accused’s vehicle was once again located outside Mr Piening’s address, and an intelligence notation that Mr Piening was active with a group called Timbarn who are involved in the manufacture and trafficking of controlled drugs.[16]
[16] T26; Exhibit VDP3.
A document recording the registration details of the accused’s vehicle, a Chrysler sedan, was tendered indicating that vehicle was registered to him for at least a period from 6 October 2020 to 5 January 2021.[17] Police checks made Detective Goud aware that at the relevant time the accused owned both a silver Volkswagen Golf and the black Chrysler.
[17] Exhibit VDP4.
Detective Goud gave evidence that on the strength of this combination of factors, he formed a suspicion pursuant to the Act and decided to stop the white Nissan Qashqai and conduct a search.
Upon activating the police vehicle’s warning lights, Detective Goud noticed that the front passenger briefly leaned forward then sat back.[18] When the car was pulled over Brevet Sergeant Porter reported to Detective Goud that the driver appeared to be quite nervous. The vehicle was searched, and it is alleged that in the front glovebox a blue/green plastic cup containing the methamphetamine was located.[19]
[18] T28.
[19] T29.
In the course of cross‑examination, Detective Goud was asked about his knowledge of the accused’s prior criminal charges of which he was acquitted. He explained that the only thing he knew about that matter was the fact that the accused was charged with numerous drug offences, that either the accused or his fingerprints were located in the drug lab, and that the matter had gone to trial in 2020 but the accused was ultimately acquitted.[20]
[20] T38.
Detective Goud was cross-examined about his recorded observation, subsequent to the decision to stop and search the accused, that he saw the front passenger lean forward and backwards. Defence counsel suggested that it would have been impossible for Detective Goud to make that observation from behind the vehicle the accused was travelling in, which Detective Goud denied. Defence counsel tendered a photograph of the model of car in question which indicates a relatively small rear window.[21]
[21] Exhibit VDD1.
An affidavit dated March 2020 was shown to Detective Goud wherein he is recorded as saying ‘as soon as I activated the lights and sirens, I observed the accused moving around in the front passenger seat and he appeared to be placing an item in the front passenger footwell of the vehicle’. Detective Goud agreed that that had been his observation but that what he was saying in evidence was that the accused moved forward as if to place something in the footwell, but that he did not actually observe that occurring. He explained that his statement had intended to reflect that this was what it looked like the front passenger might have been doing, rather than that this was what he directly observed the accused doing.[22]
[22] T52-53.
Detective Goud also agreed that in an affidavit dated 25 January 2022, he said, ‘the movements of the accused appeared to me that he was placing something near his feet or possibly within the glovebox compartment of the vehicle’.[23] Again, Detective Goud agreed that he did not see that actually happen, responding:
[23] T53.
… no, because it says at the start of the paragraph I observed the accused lean forward with his head going down. It appeared to me the accused was either placing something in the footwell of the area of the vehicle. At no point did I actually see the accused place anything into that area or did I see the accused’s hands.[24]
[24] T53-54.
The defence suggest that these were prior inconsistent statements which should cause the Court to critically assess Detective Goud’s credibility.
Defence counsel asked Detective Goud what led him to suspect that there might be drugs in the vehicle, or anything contrary to the Act as at about 8pm on 26 January 2021. Detective Goud responded:[25]
[25] T57.
A.Because of the note on his street check referring to the parcel locker; knowing that Mr Chen has previously been accused of getting stuff shipped to him in parcel lockers that are not in his name; knowing that Mr - obviously the reason - the street that he was in, my suspicion was that he was potentially collecting something after the arrest of Mr Piening, potentially, that might put him into trouble with the police; and the fact that he was in a rental car, when I know that he's got a Chrysler that he appears to be driving a lot.
Q.What did you think he might have been collecting.
A.Could be anything ... related to glassware, obviously having the previous matter before the court, potentially drugs or precursors.
He agreed that his reasons included that the accused had been sighted by police the night before in the same rental car, and that he knew the accused’s criminal history.
In re-examination Detective Goud repeated that it was a combination of all the factors and information about which he had given evidence including the street checks, the accused’s previous drug convictions and charges, the drug in question being methamphetamine, the discovery of a piece of paper with the number of a parcel locker in light of the fact that the accused had recently been accused (albeit acquitted) of having precursors delivered to parcel lockers, and that the street check relating to 25 January 2021 related to drug cautions.[26]
[26] T59-60.
The affidavits of Brevet Sergeant Porter dated 6 March 2021 and 18 January 2023 were tendered by consent. Brevet Sergeant Porter was not required for cross-examination. In his affidavit dated 6 March 2021 Brevet Sergeant Porter gave evidence that he was on mobile patrol with Detective Goud at around 8pm on Tuesday 26 January 2021. He gave evidence that they planned to drive past the Leslie Street address as the occupant had been arrested and charged with attempted murder that morning. As they were driving past the premises, he heard Detective Goud say, ‘that’s Mr Chen’ and Brevet Sergeant Porter saw the accused getting into a white Nissan Qashqai. Brevet Sergeant Porter did a check confirming that the accused had been stopped in that vehicle the night before and that it was a rental vehicle.
Brevet Sergeant Porter said he played no part in the decision to stop and search the accused however he described the events whereby the vehicle was pulled over and the searches conducted. Brevet Sergeant Porter gave evidence that he located the suspected methamphetamine in the passenger side glovebox of the white SUV.
In his affidavit dated 18 January 2023, Brevet Sergeant Porter gave evidence that as at 26 January 2021 he was aware of a shooting incident which occurred on 21 January 2021 at Woodville North. He gave evidence that on 26 January 2021 when arriving for afternoon shift, he learned that David Piening had been arrested in relation to that matter and that he lived at the Leslie Street, Woodville Park address. He recalled having a conversation with Detective Goud about driving past that address to conduct a check following Piening’s arrest.
Brevet Sergeant Porter gave evidence that Detective Goud recognised the accused as the person getting into the white Nissan Qashqai, and that Detective Goud then commented that he believed this was the vehicle about which he had been speaking to Detective Murdoch earlier that day. Brevet Sergeant Porter rang Detective Murdoch to check, who confirmed that this was the case.
Brevet Sergeant Porter gave evidence that he assumed Detective Goud was pulling the vehicle over in relation to drugs and the possibility of searching the occupants and the vehicle. He did not himself play a part in the relevant decision to pull over the vehicle. Brevet Sergeant Porter said that he knew that Detective Goud had a more extensive knowledge of the accused and the white Nissan SUV than he did.
The following two facts were agreed:[27]
[27] Recorded at T65.
1.That the accused Mr Chen was convicted on 19 December 2012 in the District Court of South Australia of three offences; the first of those being import or export a border-controlled drug or plant; the second being import or export a marketable quantity of a controlled precursor; and thirdly of attempting to commit an offence of import or export a border-controlled drug or plant.
2.That the accused Mr Chen was, on 24 June 2020, acquitted in the District Court of South Australia of the offence of manufacturing a large commercial quantity of a controlled drug and the offence of trafficking in a controlled drug.

No witnesses were called by either accused.
Analysis
The court has been assisted by clear and comprehensive oral and written submissions from counsel. The court has carefully considered all the evidence and all of counsel’s submissions, however, will not repeat them all.
The essence of the accused’s submissions is that Detective Goud did not hold the requisite suspicion pursuant to the Controlled Substances Act 1984 and accordingly there was no legal basis to search the vehicle. Consequently, the accused submits the search was illegal and evidence of the location of the drugs should be excluded from evidence at trial. The accused submits that Detective Goud didn’t actually hold the suspicion he asserted, but even if he did, that such a suspicion did not amount to an objectively reasonable suspicion that ‘any substance or equipment that would afford evidence of an offence against the Act’ was in the vehicle within the meaning of section 52(9). It was common ground that there was no other legal basis to search the vehicle and, as a consequence, it was submitted the evidence was illegally obtained and ought to be excluded as a matter of public policy.
The essence of the prosecution’s submission was that Detective Goud validly held the requisite suspicion, and that it was a reasonable suspicion satisfying the requirements of section 52(9).
The Court has carefully analysed Detective Goud’s evidence. Detective Goud gave two prior statements concerning his observations of the accused in the passenger seat of the white SUV which, as set out earlier in these reasons, were inconsistent with his sworn evidence. The court has considered the evidence in accordance with the well-settled principles relating to prior inconsistent statements. Detective Goud admitted the prior statements. He explained that in his statements he was giving an opinion as to what he thought the accused was doing when he leaned forward, although he could not directly observe those actions. The court after careful consideration accepts that explanation. In the court’s analysis, Detective Goud was taking care in his sworn evidence to restrict his evidence to his actual observations rather than the interpretations he was proffering in his less carefully worded statements. Accordingly, the statements do not adversely affect Detective Goud’s credibility or reliability.
On close analysis, having regard to the totality of the evidence and all of counsels’ submissions, for the purposes of the voir dire, the court finds the evidence of Detective Goud and Brevet Sergeant Porter credible and reliable. The court finds that Detective Goud held the suspicion he said he held, and held it honestly on the grounds he articulated for holding it. In other words, he did suspect material that would afford evidence of an offence against the Act was in the vehicle.
The remaining issue is whether he ‘reasonably suspect(ed)’, or in other words, whether his suspicion was objectively reasonable.[28]
[28] Controlled Substances Act s 52(9)
The officer knew that the accused had a criminal history including convictions for serious illicit drug matters and had more recently faced serious drug charges for which he had been acquitted at trial. He knew that one of the accused’s methodologies used in conjunction with the alleged trafficking of illicit drugs was the use of parcel lockers. He was aware that criminals will often use rental vehicles rather than their own vehicles when they are undertaking criminal activities so that they will not be recognised by police registration checks.
Detective Goud encountered the accused, whom the officer knew owned two vehicles, using a rental vehicle two days in a row, having been found in possession of a parcel locker note the night before, seemingly departing from the house of a person who had significant illicit drug trafficking connections and who had been arrested for attempted murder earlier in the day. Further, the sighting the night before had placed the accused near the premises of a person who was also connected with the accused’s most recent trafficking case.
As with any circumstantial evidence, each individual piece of evidence may have limited weight, but it is the totality of the evidential circumstances that must be assessed. In the Court’s view, the particular combination of factors here immediately raises suspicion. The use of a rental car when he owned two of his own cars, the fact that he and the rental vehicle were located on consecutive days adjacent premises associated with people connected to illicit drugs, the possession of the parcel locker note when that was a prior strategy utilised by the accused for illicit drug activity, the fact that he was pulling away from the house of a person associated with drug offending shortly after they had been arrested for attempted murder, together with all the surrounding facts and circumstances, give rise to a reasonable suspicion that a search of the vehicle would locate material that would afford evidence of an offence against the Act, as articulated in section 52(9) of the Act.
If the Court is wrong about that, such that the matters considered by Detective Goud on an objective analysis were to be assessed as falling short of supporting a reasonable suspicion, the search would be unlawful and a discretion to exclude would arise. In those circumstances the discretion must be exercised in accordance with the well-recognised principles articulated in R v Ireland,[29] Bunning v Cross[30] and numerous subsequent cases.
[29] (1970) 126 CLR 321.
[30] (1978) 141 CLR 54.
In the case at bar, the evidence in question is highly cogent, and its cogency is unaffected by any illegality. The charged offence is a very serious one. There was no failure to understand or apply the law, nor any deliberate or reckless disregard of the requirements of the Act. The police officer concerned was aware of the law, applied his mind to the statutory criteria, and came to an honest view that the criteria for a lawful search of the vehicle had been met. If that view was wrong, it was an honest mistake reflecting an error in the degree of objective factual reasonableness of his honestly held view. In all those circumstances, were in fact that to be the case, the discretion should not be exercised to exclude the evidence.[31]
[31] R v Golja [2016] SASCFC 61.
Conclusion
Detective Goud reasonably suspected that material that would afford evidence of an offence against the Controlled Substances Act 1984 was located in the vehicle occupied by the accused.
Accordingly, the search conducted by police was lawful. The evidence will be admitted at trial.