R v Connolly

[2024] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v CONNOLLY

[2024] SADC 159

Reasons for Decision of her Honour Judge Matteo 

6 December 2024

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES – PROCEDURE – SEARCHES OF PERSONS, PROPERTY OR PREMISES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

Application to exclude evidence of search of vehicle undertaken by officer of the Department for Correctional Services purporting to exercise powers under s 85B of the Correctional Services Act 1982 (SA).

Applicant is charged with possessing a controlled drug in a correctional institution buffer zone. Applicant’s vehicle searched in prison car park. Applicant claims search was unlawful as there was no reasonably held suspicion justifying the search.

Applicant further claims there was non-compliance with requirements of s 74D of the Summary Offences Act 1953 (SA) concerning interviews with suspects.

Held:

1.      The search of the applicant’s vehicle was not unlawful.

2. There was no obligation upon the DCS officers conversing with the applicant to comply with s 74D.

3.      Application for exclusion of the evidence is refused.

Controlled Substances Act 1984 (SA); Summary Offences Act 1953 (SA); Correctional Services Act 1982 (SA), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398; R v Rockford [2015] SASCFC 51; R v Golja [2017] SASCFC 61; R v Fazio (1977) 69 SASR 54; R v Cluse (2014) 120 SASR 268; R v Armistead [2019] SASCFC 85, considered.

R v CONNOLLY
[2024] SADC 159

Introduction

1. The defendant, Stacey Connolly,[1] (‘the applicant’) is charged with possessing a controlled drug in a correctional institution buffer zone contrary to s 51(2) of the Correctional Services Act 1982 (‘CS Act’).

   [1]     Charged under the name Mark John Connolly.

2. On the morning of Saturday, 22 October 2022, the applicant attended the car park of the Adelaide Women’s Prison (‘AWP’) with the apparent intention of gaining entry into the prison to visit a prisoner.

3. The applicant was screened by a passive alert drug detection dog (‘PADD dog’), after which she was detained and searched by officers of the Department for Correctional Services (‘DCS’) acting pursuant to the powers conferred by s 85B of the CS Act. The applicant’s vehicle was searched pursuant to s 85B(1)(c) leading to the finding of 1.42g of methylamphetamine inside a wallet in a handbag which the applicant admitted ownership of.

4. The applicant applies for an order excluding the evidence of the search of her vehicle on the basis that the search was unlawful as it was not authorised by s 85B(1)(c) of the CS Act. Further, the applicant contends that the DCS officers were required to comply with the provisions of s 74D of the Summary Offences Act 1953 (‘SO Act’) and failed to do so.

5. For the reasons that follow, I find that the search of the applicant’s vehicle was conducted lawfully. I decline to exclude the evidence of the search of the applicant’s vehicle.

6. I decline to exclude the evidence of the applicant’s statements to DCS officers as I do not consider that they are persons to whom the provisions of s 74D of the SO Act apply.

   Evidence on the voir dire

7. The prosecution called four witnesses on the voir dire, namely, Martin Clifton, a DCS intelligence analyst, Daniel Wilson, the DCS searching officer, Gregory Paine, the AWP security manager and Senior Constable Danielle Senior, the SAPOL investigating officer. All witnesses were cross-examined.

   Martin Clifton

   Evidence in chief

8. Martin Clifton is a senior intelligence analyst with the DCS. As at the time of giving evidence he had been in that role for two years. In the previous two year period Mr Clifton worked as an investigator in the DCS investigating prisoner complaints about the conduct of prison officers. He was previously a police officer for 15 years.

9. Mr Clifton explained that the role of an intelligence analyst in the DCS involves protecting security and ensuring good order within South Australian prisons. Drugs present a risk within prisons, and his role encompasses trying to detect their introduction. In Mr Clifton’s experience, drugs can be introduced into prisons via officers, visitors, internal prisoner carriages and over fences.

   Monitoring of prisoner telephone calls

10. One of the ways in which intelligence about drug introductions is gathered is by the monitoring of prisoner telephone calls. Each prisoner has a unique identification number and may make outgoing calls to pre-indicated telephone numbers which, other than legal calls, are recorded. Mr Clifton said that in the course of a week, his section would listen to approximately 80 prisoner telephone calls:[2]

    [T]o identify trends of money being moved around, going to a certain area which then we follow that money trail to try and identify who and when contraband is going to be brought in.

    [2] TX 7-8.

11. Mr Clifton produced a disc containing selected audio recordings of calls made on the prisoner telephone system using the identification numbers of two prisoners, Elizabeth Knight (‘Knight’) and Sheree Hall (‘Hall’), between 12 October 2022 and 19 October 2022.[3] Mr Clifton purported to identify the persons speaking in the calls, a matter about which there was apparently no dispute. Knight was the prisoner speaker in all seven calls, including two calls which were placed from the Hall number. All of the calls were placed to the mobile telephone number of Michael Goodliffe (‘Goodliffe’). Mr Clifton gave evidence that he deduced from previously monitored calls that Goodliffe and Knight were friends.

    [3] Disc of prison calls (Exhibit VDP1); (partial) transcripts of prison calls (Exhibit VDP2); and see TX 23. 

12. Mr Clifton explained that there is a ten-minute delay between the recording and downloading of prisoner telephone calls, therefore he could not be monitoring them exactly live. He said that he made notes of the calls he listened to on a laptop, and that he did not have those notes as he had since had two laptops ‘disintegrate’.[4] His evidence was that he listened to the calls before the visit date (which I interpret to mean 22 October 2022); he could have listened to the calls days after they occurred.

    [4] TX 18.

13. It is convenient to set out the contents of the calls, and Mr Clifton’s evidence about his interpretation of them.

    Call 14476632 – 12 October 2022 at 2.24pm – Knight to Goodliffe

14. At the commencement of the call Knight asks Goodliffe, ‘Did you check it?’ and refers to ‘three hundred’. Goodliffe replies, ‘Yep’, and Knight thanks him.

15. Mr Clifton gave evidence that the reference to checking suggested to him that this call involved a reference to a bank account. He said:[5]

    [T]o me Mr Goodliffe is the banker and there is people putting money from the institutions, pooling money from the institution of the Women’s Prison into Mr Goodliffe’s bank account … [T]his is common in the prison system, in all the prisons.

    Call 14484392 – 13 October 2022 at 2.12pm – Knight to Goodliffe

    [5] TX 11.

16. In this call Knight instructs Goodliffe to write down the name of Sheree Hall and describes her as someone she (Knight) has ‘done a lot of gaol with’. Knight asks Goodliffe to take $200 out of her bank account and do a money order for Hall.

17. Mr Clifton was unaware of a pre-existing relationship between prisoners Knight and Hall. Mr Clifton said of this call that he thought it related to the pooling of money for contraband, or that it related to a debt owed by Knight to Hall.

    Call 14499587 – 15 October 2022 at 9.56am – Hall to Goodliffe

18. This is one of the two calls in which Knight places a call to Goodliffe from Hall’s prisoner telephone number. Mr Clifton suggested that a prisoner might use the telephone number of another prisoner due to a lack of funds or to avoid detection.

19. In this call Knight asks Goodliffe to check his bank for her because she ‘put eight in there’. Mr Clifton suggested that the reference to eight was a reference to $800. He suggested that Knight hesitated before raising the topic of the bank account.

    Call 14504262 – 15 October 2022 at 3.00pm – Hall to Goodliffe

20. This is the second call placed by Knight to Goodliffe from Hall’s prisoner telephone number. Knight says that she is ringing back to see if Goodliffe checked his account, to which Goodliffe confirms that he did. Goodliffe asks what Knight is looking for, to which Knight responds ‘300 bucks … plus um what I put in there the other day’.

21. Mr Clifton suggested that this call involved a reference to Knight using Goodliffe’s account by placing $300 into it, and Goodliffe collecting money. This call suggested to Mr Clifton that Knight was checking that money paid by other prisoners had gone into Goodliffe’s bank account.

    Call 14517594 – 17 October 2022 at 10.26am – Knight to Goodliffe

22. Very early on in this call Goodliffe says, ‘Before you ask, yes yes yes yes’. Knight refers to trying to work her way out of HSU, a reference to the high security unit.[6] Knight asks Goodliffe if he is going to come and see her, to which Goodliffe responds that he will make a booking the next day. He says that he will probably go on Saturday morning. The following exchange occurs:[7]

    [6] TX 15.

    [7] Based on my listening to the call; c.f. transcript (Exhibit VDP2).

Knight:	… I did something. What did I do, I transferred some funds into your bank.
Goodliffe:	Yeah, yeah that’s what I mean, all good yep.
Knight:	Yeah again, yeah so I put three lots across to you but that’s it now.
Goodliffe:	Yep, yep, no worries, cool all good.
Knight:	Okay, so just um, give me a um total later.
Goodliffe:	Yeah.
Knight:	Or something.
Goodliffe:	Yep, yep, no worries. I’ll whack that into your business account.
Knight:	Yeah cool. Have you picked up the white bike yet?

1. Mr Clifton said that he suspected that Goodliffe’s introductory words were intended to prevent Knight from asking more questions about funds or if he had collected any contraband. Mr Clifton explained that it is very difficult to get contraband into the high security unit of a prison, other than by visits. He drew a contrast with a low security unit where prisoners may arrange for contraband to be thrown over a fence. Mr Clifton said that the exchange regarding the possibility of a visit occurring on the Saturday morning was the first time he became aware of a potential risk occurring that weekend, that is, the weekend commencing on Saturday, 22 October 2022. Regarding the content of the call generally, Mr Clifton said:[8]

   It's actually a really, really busy phone call. In there they talk about bike parts etc. I don’t know whether that’s veiled comments for, a lot of it is what’s not said in the phone call which arouses my suspicion, around if you’re going to ask a question about, you just ask it, but because they are very veiled in what they say, or cryptic in what they say, that gets my suspicion.

   Call 14526709 – 18 October 2022 at 10.59am – Knight to Goodliffe

   [8] TX 16.

2. Towards the end of this call Knight asks Goodliffe if he sent ‘that money’ to Sheree (Hall), and he confirms that he did ‘last Friday’. Knight thanks him for doing so. The following exchange then occurs:[9]

   [9] Based on my listening to the call; c.f. transcript (Exhibit VDP2).

Knight:	Oh um so did you check your bank accounts?
Goodliffe:	Yeah.
Knight:	How much, how much was in there?
Goodliffe:	Nine.
Knight:	All up.
Goodliffe:	Yep. That work?
Knight:	Ah, um it should have been, um, oh I’ll have to work it out, it should have been like eleven.
Goodliffe:	Ah, yeah, yep. Unless I missed one. I’ll go back and have another look.
Knight:	Yeah there was three, there should be three lots.
Goodliffe:	Uh yeah there is more than that, but.
Knight:	What is.
Goodliffe:	Yeah.
Knight:	There should be three lots, but anyway have a look and I’ll give you a ring tomorrow.

1. Mr Clifton said of this call that he took it to involve Knight confirming with Goodliffe that money had gone into his account, and questioning of the amount. Mr Clifton surmised that if Knight had made a miscalculation then she would have to check with other prisoners to ensure they had put money into the account. Mr Clifton said that by this point he thought ‘they’ (which I took to mean Knight and Goodliffe) were going to attempt to bring contraband into the prison. As to the involvement of Hall, Mr Clifton said that the fact that Knight appeared concerned about money being sent to Hall suggested that Hall was either owed money by Knight or that Hall was conspiring to bring contraband into the prison ‘with her visitor’.[10]

   Call 14536858 – 19 October 2022 at 2.26 pm – Knight to Goodliffe

   [10] TX 17.

2. This call commences with Knight asking whether Goodliffe has a pen and paper, and proceeding to provide him with a mobile telephone number. Knight says, ‘can you just put in 250 and don’t worry about the 530 today. I won’t push the bike because you got the ute going. But can you put 250 in there please?’ and, further, ‘can you do a total in your account because I put another 100 in there for ya.’

3. Mr Clifton said that he interpreted this call as involving an instruction from Knight to Goodliffe to put $250 into the telephone number provided, which he believed was:[11]

   [A] partner in the community of a prisoner and that money was for – the reason that they had transferred that money was so that she could collect the contraband in the community.

   [11] TX 18.

4. To the extent that there is conversation about a bike and a ute in the call, Mr Clifton said that suggested to him that this was a conversation in code. He considered that Knight asked about the total to ensure money was paid into the account. Mr Clifton said that the mobile telephone number given in the call was identified to a woman named Michelle Rankine, who he described as being ‘quite prolific in the prison system arranging contraband with another prisoner’.[12]

   Visitor of interest list (VDP3)

   [12] TX 18.

5. In relation to prisoner visits which are scheduled to take place on a given weekend, during that week the DCS intelligence section, known as the Corrections Intelligence Unit (‘CIU’),[13] is provided with a list of visitors per institution. Mr Clifton said that list served as a guide to ‘who to listen to just to prevent or identify any people bringing contraband into the prison’.[14] As I understood Mr Clifton’s evidence, once the CIU had identified any such people, they would forward those details to the security manager of the institution concerned, in the form of a visitor of interest list. Specifically, the CIU forward that advice in the form of a notation under a column headed ‘CIU comments’.

   [13] Affidavit of Gregory John Paine 25 March 2024 (Exhibit VDP5) [6]-[7]; alternatively referred to by counsel as ‘central investigation unit’ at TX 20.

   [14] TX 20.

6. Mr Clifton’s role was to ‘rate the threat’ applicable for each visitor in the CIU comments column on the visitor of interest list. The visitor of intertest list would then be forwarded to the security manager of the institution through an administration officer. The visitor of interest list also contains a column for the security manager to add their comments, a matter to which it shall be necessary to return.

7. The visitor of interest list for the AWP for the weekend commencing on Saturday, 22 October 2022 is Exhibit VDP3. Mr Clifton explained that a ‘traffic light’ system of colour-coding is applied to the visitor of interest list such that red denotes an imminent threat (‘we suspect that it’s going to happen in this visit’), yellow denotes a possible threat (‘a previous visit where they’ve attempted to introduce’) and white denotes ‘a possible’.[15]

   [15] TX 21.

8. The relevant portions of the visitor of interest list appear as follows:[16]

   [16] Visitor of interest list Adelaide Women’s Prison - 22 October 2022 (Exhibit VDP3).

Time	Prisoner			Visitor			CIU comments	Security Manager comments
840	#### #	KNIGHT	ELIZABETH	GOODLIFFE	MICHAEL	#### #	IMMINENT THREAT	Security Manager request targeted searching of visitor and vehicle. At no time is this visit to be facilitated even with negative PAD or search indications, Visitor must be refused entry.
840	#### #	HALL	SHEREE	CONNOLLY	MARK	####	IMMINENT THREAT	Security Manager request targeted searching of visitor and vehicle. At no time is this visit to be facilitated even with negative PAD or search indications, Visitor must be refused entry.
840	All details redacted.						POSSIBLE THREAT – Located near influential prisoners likely seeking to introduce contraband

1. Mr Clifton said that he had concerns about Knight and her nominated visitor Goodliffe. As to the Hall/Connolly entry, Mr Clifton said that this proposed visit was given an imminent threat rating for the following reasons:[17]

   The fact that Ms Hall had given Ms Knight her PIN number for her PTS account, the fact that money had gone into her account from Mr Goodliffe and the conversation around the transactions of money I suspect to be for contraband. They were both in high security unit at that time. There is no way that they could get drugs in unless it was through visits.

   [17] TX 21.

2. Mr Clifton said that his suspicion related to any proposed visitor of Hall on 22 October 2022.

   Cross-examination

3. Mr Clifton was cross-examined about his training to become an intelligence analyst. He agreed that his role was in a specialist area, and that intelligence gathering and analysis required expertise. As to his training to undertake the role of a DCS intelligence analyst, Mr Clifton stated that he learned a lot from being a police officer for 15 years. He spent 18 months of that time working as an intelligence officer, at a time when SAPOL operated a more ad hoc system of intelligence gathering than what currently exists. He received basic DCS intelligence training, consisting of one day of training provided by his then-manager, covering extremism and ‘a bit of everything’.[18] The training was by PowerPoint. There are training days for updating skills. Mr Clifton believed, without being certain, that the training he received included examples of ‘gaol talk’, and provided some examples with which he was familiar.

   [18] TX 28.

4. Mr Clifton confirmed that his role is to gather and interpret intelligence concerning visitors, and that he then passes his suspicions ‘up the chain of command’. He agreed that those suspicions are disbursed to others to conduct a search.[19]

   [19] TX 29.

5. Mr Clifton was asked what training he had received in determining what constitutes a reasonable cause to suspect. He had not received any such training in DCS. His training related to his time as a mostly general duties police officer. He said (of a reasonable cause to suspect):[20]

   To me it’s a very simple thing. It’s like passing the pub test. If I’m going to tell you a story you believe that story. There’s enough suspicion raised with the money transactions, I guess it’s the lack of what’s said in the phone calls. It’s using someone else’s PTS accounts. That’s enough suspicion.

   [20] TX 30.

6. Mr Clifton confirmed that he has no notes of listening to the calls in 2022. He cannot tell the dates and times of listening to calls leading to his suspicion concerning the applicant, other than it was ‘leading up to the visit’.[21] He said he would not have listed Connolly or Goodliffe as imminent threats if he did not suspect days before their booked visit that they were bringing in contraband into the prison.

   [21] TX 34.

1. Mr Clifton seemed not to accept the proposition that through the loss of his working notes, the court cannot know what facts he relied upon in arriving at his suspicion. He said:[22]

   The facts that I listened to the phone calls, as I said, it’s not on the person it’s the content of phone calls or lack of content what was in the phone calls.

   [22] TX 35.

2. As to the two calls in which Knight spoke to Goodliffe on Hall’s prisoner telephone number on 15 October 2022, Mr Clifton agreed that those calls piqued his interest. He agreed they contained no mention of Hall.

3. Mr Clifton suggested that it was unlawful or in breach of prison regulations for a prisoner to use another prisoner’s telephone number. He was unaware of whether there was any consequence for Knight and/or Hall for doing so as that is up to the security manager. Mr Clifton agreed that there may be numerous non-sinister explanations for a prisoner using another prisoner’s phone number. He accepted, consistent with his evidence-in-chief, the possibility that Knight used Hall’s number due to insufficient credit on her own account, however, he suggested this was unlikely given the amount of money Goodliffe appeared to be holding on Knight’s behalf.

4. Mr Clifton agreed that Knight appeared to be running a business outside of the prison which involved bikes of some type. Prisoners can transfer money from inside gaol to external accounts. Mr Clifton did not know if he could access Knight’s prisoner account to determine the quantum of funds available to her. He agreed that he could have asked someone whether he could have done that, and that he did not do so. When asked whether this would have been better than simply asserting his belief about the matter, Mr Clifton stated:[23]

   In my experience with the way that the prisoners operate, and that’s in all different institutions, there are prisoners that pool their money together, there’s a banker that they pool the money to and they have different people collecting contraband on the outside and that’s not just from the women’s prison, that’s from all institutions.

   [23] TX 38.

5. Regarding call 14504262, Mr Clifton disagreed with the proposition that there was nothing inherently suspicious about talk about a money order. He said, ‘[t]he amount of money from the money order on top of the other money that’s going into the account, yes, I believe that there is.’[24]

   [24] TX 39.

6. Mr Clifton did not believe that Goodliffe had been investigated or charged in relation to his alleged activities as a ‘banker’ involved in conspiring to introduce contraband into a prison. He agreed that the information known to DCS would have led to Goodliffe being banned from visits by DCS, however, he suggested that no ban took place due to the time frame between identifying Goodliffe’s role and the visit date. Goodliffe’s presumed role as a banker led to his imminent threat status for the purpose of the visitor of interest list. The site security manager determines how the visitor is to be dealt with. 

7. Contraband can include weapons, drugs, mobile phones, alcohol and sharp objects. In relation to the booked visits by Goodliffe and Connolly, Mr Clifton had no particular suspicion as to what contraband was to be introduced into the prison. He was not sure whether Connolly’s proposed visit of Hall was a non-contact visit. He said that that information sometimes changes, and that he is not privy to that information if it does change. The nature of the visit (contact or non-contact), he said, was up to the security manager at the prison.

8. Prisoners in the HSU have non-contact visits involving a physical shield. He did not know if such visits were supervised by a guard. He did not know if contact visits were allowed in HSU. He could not disagree with the proposition that Connolly was visiting Hall for a non-contact visit. At all events, he did not agree that the form of the visit was a relevant consideration to the formation of his suspicion.

9. Mr Clifton said that he formed his suspicion leading up to the visit, on the day before. He was unable to recall a precise date or time. The visitor of interest list (VDP3) is emailed to the prison on a Friday afternoon. Implicit in the witness’s answers, his suspicion was formed before VDP3 was emailed to the prison with his comments included in the CIU comments column.

10. As to the imminent threat assessment on VDP3, Mr Clifton said that Connolly and Goodliffe ‘were the ones that were in possession of the [contraband] with the money that’s been moved around’.[25] Mr Clifton explained that it was not Connolly who was deemed to be an imminent threat, but the person visiting the prisoner Hall. In response to a question about when he formed the suspicion which was reflected as an imminent threat classification in VDP3, Mr Clifton said:[26]

    … [I]t was a series of events from the 15^th [of October 2022] through to the day of the visit and before the visit with the telephone conversation between Ms Knight. It was the money moving around between different accounts. It was the collection of money which in my opinion is for the purposes of contraband community to be brought into the prison.

    [25] TX47.

    [26] TX 48-49.

11. Regarding call 14536858, Mr Clifton agreed that Knight requested a parcel pick-up from the post office. Mr Clifton agreed that there was no mention of Connolly in that call, or any other.

12. Mr Clifton agreed that there was no reference in his affidavits or evidence of a possible connection between Goodliffe and Connolly. Other than the reference in call 14484392 to Knight having ‘done a lot of gaol’ with Hall, Mr Clifton had not been provided with information from prison staff about suspicious meetings between them.

13. Mr Clifton disagreed that he did not hold a reasonable suspicion concerning Hall and her visitor Connolly.

    Daniel Wilson

    Evidence in chief

14. Daniel Wilson is a dog handler in the DCS Operational Security Unit (‘OSU’).  At the time of giving evidence he had been in that role for four years.  Mr Wilson is one of nine dog handlers who work at correctional institutions across the state.  Their role is to conduct search operations at correctional facilities to detect, and prevent the introduction of, contraband, including drugs.  Mr Wilson received specific training to perform the role of a dog handler.

15. Mr Wilson said that where dog handlers are present to manage prisoner visits, every visitor entering a prison will be screened by a PADD dog.  Depending on the particular institution, once a prisoner passes through a metal detector, it is possible that the supervisor will select the prisoner for an ‘iron scan’ for drugs.

16. Mr Wilson estimated that as at October 2022, the AWP would receive approximately 40 or 50 visitors across a weekend.

    Visitor email (VDP4)

17. At 9:58 pm on Friday, 21 October 2022, Gregory Paine, the security manager at the AWP, sent an email to a number of recipients on distribution lists, which included Mr Wilson.  An email of this type would be sent out every Friday afternoon to advise of ‘threats that will be entering institutions across the State’.[27]  The email attached the visitor of interest list containing the proposed Connolly/Hall visit. Mr Wilson said that the characterisation of ‘imminent threat’ meant that it took priority over any other visitor in the list.

    [27] TX 63.

18. On Saturday, 22 October 2022, on account of the advice concerning two imminent threats, OSU set up in the carpark of the AWP with the intention that every visitor or person coming onto the prison grounds was to be screened by a PADD dog.  Mr Wilson was working with two other dog handlers, Ms Maroz and Mr Jones.

19. Mr Wilson said at the time OSU arrived at the carpark, the applicant had already signed in and left the grounds.  He said that she came back in her black Nissan Dualis vehicle, which she parked.  Mr Jones conversed with the applicant and Ms Maroz ‘ran her PADD dog’, or screened her, which gave a positive indication.  Mr Wilson said that a screening involved the dog going ‘quite quickly past the individual’, whereas a search involved ‘physical searching’ of an area.[28]

    [28] TX 71.

20. Ms Maroz indicated to Mr Wilson and Mr Jones that her dog had made an indication in relation to the applicant, which led Jones to conduct a ‘pat search’ (of clothing, with permission) while Wilson commenced a search of her vehicle.  Wilson explained the reason he searched the vehicle as follows:[29]

    So Mrs Moraz (sic) told us that her dog had indicated on Ms Connolly and under that email that we received, Ms Connolly was detained which yeah led me to start the search.

    [29] TX 71.

21. Mr Wilson explained that he understood that he was authorised to detain and search a visitor to a prison by s 85B of the CS Act. Specifically, in respect of the applicant, he understood that he had been instructed to search her by the security manager, Mr Paine.

22. In undertaking the vehicle search, consistent with his usual practice, Mr Wilson asked the applicant if there were any sharps in the car that may hurt them.  The applicant said that there may be something in her wallet.  Mr Wilson opened the passenger side door of the vehicle and located a black handbag, which the applicant confirmed to be hers.  It contained a Quiksilver wallet inside of which was money and two bags of what appeared to be methylamphetamine and a further clear bag.  Mr Wilson photographed the suspected drugs and placed them into an evidence bag which he retained for provision to police.  Mr Jones contacted police.

    Cross-examination

23. Mr Wilson gave evidence that he was involved in a search of Goodliffe’s person and vehicle, but that nothing of interest was located.  His search of Goodliffe involved, in effect, following an instruction based on the suspicion of another.  He said that they work with the intelligence department, who do all of the groundwork, and they just execute the search.

24. In regard to the visitor of interest list, he only knew the names of Goodliffe and the applicant from that document.  He was not provided with any information about them, beyond the imminent threat classification.  Sometimes he is provided with intelligence information about visitors, but not on this occasion.

25. Mr Wilson said that he had not received specific training in relation to specifics of s 85B. He has been trained regarding reasonable cause to suspect. Mr Wilson did have an understanding of the notion of a buffer zone, and of an offence under s 51 of the CS Act. He was aware that the introduction of drugs into a prison constitutes a major indictable offence.

26. Mr Wilson accepted that he operates under a chain of command whereby he is instructed to search individuals based upon the suspicion of another. He has not been trained in relation to s 74D of the SO Act. He said that Mr Jones had a notebook and appeared to be writing things down when he spoke to the applicant, but clarified that they are not police and ‘never go really in depth’.[30]

    [30] TX 80.

27. Mr Wilson was cross-examined about the applicant’s detention, which he agreed meant that her liberty had been interfered with.  A person who is detained is usually told, ‘you’re detained under s 85B for the purpose of a search.  Do you consent to a pat search?’  Where the person declines, that is left for SAPOL.  He did not recall whether the applicant asked for her phone at some point; it is common for a person to be informed that they cannot have their phone until later.

28. Mr Wilson drew a distinction between detention and arrest, with the latter being effected by police. He believed himself to be exercising a power of detention.

29. Mr Wilson said that conversations with the applicant were not recorded, and that they are not permitted to record members of the public.

30. When the applicant was PADD screened, the dog did not give a full indication by sitting, it just indicated. A sit down response is generally an indication of drugs on the person.  He said, ‘if we only worked off sit responses, we’d never find any drugs.’[31] No drugs were located during the pat search of the applicant conducted by Mr Jones.

    [31] TX 86.

31. Mr Wilson said that the lack of sit indication by the dog and no finding of drugs on the applicant did not affect his suspicion in relation to searching the applicant’s vehicle, as he was pretty confident of the possibility of a finding based on the work done by the intelligence officer, Mr Clifton.

32. Mr Wilson said that, hypothetically, if a visitor was not to be refused entry (according to the visitor of interest list), the dog did not give a sit indication and nothing was found on them, if they had a suspicion the visitor may have something on them, they would liaise with the officer in charge of the prison about granting or refusing entry.  He said, ‘we don’t sort of make that call.’[32]

    [32] TX 89.

    Danielle Senior

33. Senior Constable Senior is a member of South Australia Police.  On 22 October 2022 she attended at the AWP following a briefing from her superior officer that a person had been located with a suspected controlled drug.

34. On arrival, DCS staff showed her the bags which were located as a result of the search of the applicant’s vehicle.  Senior Constable Senior had a conversation with the applicant which was recorded by a hand-held video camera. Senior Constable Senior subsequently placed the applicant under arrest and informed her of her rights as an arrested person.

    Gregory Paine

35. The prosecution tendered an affidavit of Gregory Paine, security manager at the AWP, made on 25 March 2024, and Mr Paine gave evidence. 

36. Attached to the affidavit of Mr Paine (exhibit VDP5) is a copy of the instrument of delegation dated 23 May 2022 by which the CE of the DCS delegates certain of his powers, functions, duties and responsibilities under the CS Act to employees of the DCS who from time to time hold the positions described in column 3 of the schedule to the instrument of delegation, which includes security managers.

37. The schedule describes the power vested by s 85B as follows:

    Chief Executive may cause a limited contact search to be conducted on any person and their possessions entering a correctional institution and may remove them from the institution or detain them while awaiting a police officer to attend.

38. Mr Paine provides in his affidavit that as the security manager and through this delegation it is his responsibility to ‘organise searching requirements of prisoners and visitors’.[33]

    [33] Affidavit of Gregory John Paine dated 25 March 2024 (Exhibit VDP5) paragraph [5].

39. Mr Paine deposes that as security manager he is provided with a visitor of interest list each week by the DCS intelligence unit. 

40. On Friday 21 October 2022 Mr Paine received the visitor of interest list from the intelligence unit which included two imminent visitor threats for the upcoming weekend, one of those being in respect of the applicant who was scheduled to visit prisoner Hall at 8:40 am on Saturday, 22 October 2022.  Mr Paine confirmed that he included the comments in the security manager comments column of the visitor of interest list, exhibit VDP3, and then emailed the list with instructions to the manager of OSU to enable their responsible searching members to be advised.  Mr Paine deposed that the imminent threat advice from the CIU gave him reasonable grounds for suspecting that the applicant was going to introduce contraband into the prison and would be in possession of a prohibited items.

    Evidence in chief

41. Mr Paine has been the security manager at the AWP since 2020 and has acted in the role numerous times since 2014.  He has been employed within the DCS for 24 years including in security coordinator and security manager roles. 

42. Mr Paine gave evidence that he understood that the power which he was delegated under s 85B was to undertake searching of a visitor entering the institution where they have reasonable grounds for suspecting that the visitor may be attempting to introduce contraband. He explained that reasonable grounds are ‘where DCS staff had sufficient information either through intelligence or through observation’.[34]  Mr Paine explained that the security manager comments in the visitor of interest list (VDP3) are based upon information provided by the CIU.  He said that it was not his role to enquire into actions undertaken by the CIU, but to act on the information provided.  He took the classification of imminent threat to mean that contraband was to be brought in at the next attendance.  He said that the security manager comments are standardised according to the threat classification.  He said that he trusted the rating given by the CIU because it is their role to undertake investigations and make recommendations and he had no grounds for doubting the intelligence that had been provided.

    Cross-examination

    [34] TX 101.

43. Mr Paine made it clear that he acts upon the intelligence unit recommendation but that the classification is provided by the intelligence unit.

44. Mr Paine agreed with the proposition that for the purpose of the preparation of the visitor of interest list it was Mr Clifton’s role to determine whether or not there was sufficient grounds to make out reasonable cause to suspect to conduct searches under s 85B of the CS Act.  He said that from his perspective as the security manager the information in the form of the threat assessment provided by the CIU is sufficient to constitute reasonable grounds to conduct a search.  He confirmed that he would simply authorise the search utilising his delegation based on an indication by the CIU was that there was reasonable cause to suspect. By way of example Mr Paine confirmed that in relation to the entry concerning Goodliffe he was not provided with any details or specifics as to the nature of the threat said to have been posed by him. 

45. Mr Paine did not recall anyone in the CIU informing him of a suspicion that Goodliffe was deeply involved in organising the introduction of contraband into the AWP.  That is information of a type that he would expect to be provided with as security manager of the prison.  A person involved in such conduct would likely be banned as a visitor to the prison for at least 12 months.

46. Mr Paine did not know off the top of his head whether he had ever been informed of the specifics of the nature of the imminent threat that the applicant was assessed to pose to the prison.  As to whether he would expect to receive the information about a suspicion held by the intelligence team that Goodliffe and Connolly were somehow involved in the organised importation of contraband, Mr Paine said that whilst he would expect to receive information about that, there are times when he does not receive such information as it may be a matter that CIU is managing with the police corrections unit.  The Director of CIU decides what information sharing is to take place.

47. Mr Paine was asked about training provided to DCS officers in relation to searching and conversing with visitors to the prison.  He said that there is no training regarding the recording of conversations as they are not able to record conversations with visitors and they do not have recording technology.  Where a search transpires, staff are required to complete an employee report form.  As to the detention of visitors Mr Paine said this is managed by DCS supervisors who have statements that they are required to read as part of the detention process, but they had no means of recording interview or discussions that take place as part of a detention. 

48. Mr Paine explained the reason why he relies on the CIU comments in the visitor of interest list for the purpose of instructing staff to conduct searches in certain circumstances as follows:[35]

    A.Because the CIU has the means to obtain intelligence through a range of sources that - which I do not. So they have the means to monitor prisoner telephones, they have the means to monitor mail coming in and out of the institution, all of which I do not have access to. We have a dedicated team to actually provide that level of support to security managers and general managers of the institutions. For a security manager to spend that amount of time going through, for the women's prison with around about 256 prisoners coming in, to go through all of that information, I don't have the time to actually do that level of work. Hence, an intelligence team is established to actually do that, not just for my institution, but for all of the DCS institutions as well.

    [35] TX 115.

    Submissions of the parties

1. At essence, the defendant submits that Mr Clifton did not hold a reasonable suspicion such as to authorise the search of the applicant’s vehicle which led to the finding of the controlled substance the subject of the charge. The defence submits that s 85B of the CS Act requires an individual, in this case Mr Clifton, to subjectively hold a suspicion and, further, for that suspicion to be reasonably held. The defence argument focuses on the reasonableness of the suspicion held by Mr Clifton.

2. The defence submits that the contents of the telephone calls were such that there could be no rational connection between them and the suspicion held.  In particular the defence points to the fact that none of the calls involved the applicant or her intended visit subject, Hall, and further, that there is no reference to the applicant in any of the calls.  The defence points to the lack of investigation into the persons concerned, the failure to check any prison accounts and the apparent failure to report up and take action with respect to Goodliffe as the suspected banker in the introduction of contraband into the prison as detracting from the reasonableness of the conclusions drawn from the phone calls alone.  The defence criticises what it says is a lack of proper training, expertise and understanding of the notion of what constitutes a reasonable suspicion on the part of Mr Clifton. 

3. The defence submits that there was a failure of compliance on the part of Officer Wilson with s 74D of the SO Act. The defence submits that any officer conversing with the applicant at the time she was detained under s 85B of the CS Act was investigating an offence for the purposes of s 74D of the SO Act. The searching of a vehicle, the defence submits, must necessarily involve an investigation and, the argument goes on, by allowing DCS officers to have search powers, the CS Act is authorising them to investigate offences.

4. The prosecution submits that s 85B of the CS Act provides for search powers to be exercised by DCS officers on the basis of an entirely objective test of whether reasonable grounds to suspect exist. The prosecution submits that on a proper construction of the provision those grounds must exist at the time that the power is exercised, however, there is no specific requirement that suspicion be held by a particular individual.

5. On the prosecution case, Mr Clifton formed a suspicion which was reasonable, he conveyed that suspicion to the prison security manager, Mr Paine, who was delegated to exercise the powers of the Chief Executive, and Paine issued an instruction to the searching officers.  The prosecution submits that the direction to search, ultimately passed down the chain of command, was lawful as it was predicated upon the existence of objectively reasonable grounds to suspect.

6. The prosecution submits that s 74D of the SO Act did not apply to DCS officers conversing with the applicant incidental to their detention of her and searching of her vehicle.

   Legality of vehicle search per s 85B of the Correctional Services Act 1982

7. The applicant’s application is for exclusion of “the ‘fruits’ of a search of the applicant’s vehicle taking place at the Adelaide Women’s Prison on 22 October 2022”.[36] The issue immediately arising for consideration is whether the search of the Nissan Dualis vehicle undertaken by Mr Wilson was authorised by law.

   [36] Interlocutory application – 28 February 2024, order 1.

8. Although Mr Wilson’s evidence was not explicit on this topic, I took his evidence to be that he searched the vehicle pursuant to a power conferred by s 85B of the CS Act. I so took his evidence because he nominated that provision as giving him the power ‘to detain and search’[37] and because he described commencing the vehicle search once the defendant was detained.[38]

   [37] TX 70.

   [38] TX 71.

9. I set out the terms of s 85B in their entirety:

   85B—Power of search and arrest of non-prisoners

   (1)     The CE may—

   (a)     cause any person who enters a correctional institution to submit, subject to the person's consent, to a limited contact search, and to having his or her possessions searched, for the presence of prohibited items; or

   (b)     if there are reasonable grounds for suspecting that a person entering or in the institution is in possession of a prohibited item, cause the person and his or her possessions to be detained and searched; or

   (c)     if there are reasonable grounds for suspecting that a vehicle entering or in the institution is carrying a prohibited item, cause the vehicle to be detained and searched.

   (2)If a person does not consent to a limited contact search, the CE may cause the person to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose.

   (3)Failure of a person to consent to a limited contact search does not of itself constitute grounds for suspecting that the person is in possession of a prohibited item.

   (4)     The following provisions apply to a limited contact search:

   (a)     the person cannot be required to remove any clothing or to open his or her mouth, and nothing may be introduced into an orifice of the person's body;

   (b)     any direct contact with the person's flesh that is necessary for the purpose of the search must be minimal and within the bounds of propriety;

   (c)     the person may be required to adopt certain postures or to do anything else reasonably necessary for the purposes of the search and, if the person does not comply with such a requirement, the CE may cause the person to be removed from the institution, using only such force as is reasonably necessary for the purpose;

   (d)     the search must be carried out expeditiously and undue humiliation of the person must be avoided.

   (5)     The following provisions apply to a search under subsection (1)(b):

   (a)     the person may be required—

   (i)to remove his or her outer clothing (including footwear and headwear) but no other clothing; or

   (ii)to open his or her mouth (but force cannot be applied to open the person's mouth); or

   (iii)to adopt certain postures; or

   (iv)to submit to being frisked; or

   (v)to do anything else reasonably necessary for the purposes of the search,

   and, if the person does not comply with such a requirement, the CE may cause the person to be removed from the institution, using only such force as is reasonably necessary for the purpose;

   (b)     nothing may be introduced into an orifice (including the mouth) of the person's body;

   (c)     at least 2 persons, apart from the person being searched, must be present at all times during the search;

   (d)     the search must be carried out expeditiously and undue humiliation of the person must be avoided.

   (6)     The following provisions apply to a search under subsection (1)(c):

   (a)     the driver of the vehicle may be required to do anything reasonably necessary for the purposes of the search;

   (b)     if the driver does not comply with a requirement made under paragraph (a), the CE may cause the driver and the vehicle to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose.

   (7)If a prohibited item is found as a result of a search under this section, or a person fails to comply with a requirement lawfully made for the purposes of a search under this section—

   (a)     the CE may cause the person or the driver of the vehicle, as the case may be, to be handed over into the custody of a police officer as soon as reasonably practicable and to be kept in detention until that happens; and

   (b)     the item may be kept as evidence of an offence or otherwise dealt with in the same manner as a prohibited item under section 33A may be dealt with.

   (8)If the officer or employee who carries out a search of a person under this section suspects on reasonable grounds that a prohibited item may be concealed on or in the person's body, the CE may cause the person to be handed over into the custody of a police officer as soon as reasonably practicable and to be kept in detention until that happens.

   (9)On a person being detained under subsection (7) or (8), the CE must immediately cause a police officer to be notified.

   (10)Despite the preceding provisions of this section, if a person or vehicle may be detained under this section for the purposes of being searched, the CE may, instead, cause the person or vehicle to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose.

   (11)The annual report submitted under this Act by the CE in respect of a financial year must include the following particulars:

   (a)     the number of persons detained under subsection (7) during the year and the duration of each such detention; and

   (b)     the number of persons detained under subsection (8) during the year and the duration of each such detention.

   (12)This section does not apply to a person who is a prisoner in the correctional institution.

   (13)   In this section—

   prohibited item means an item—

   (a) that is a prohibited item for the purposes of section 51; and

   (b)     permission for the introduction of which into the correctional institution has not been given by the CE.

   (14)To avoid doubt, a reference in this section to a correctional institution includes a reference to all of the land identified in a proclamation under section 18(1) relating to the institution.

10. As a starting point, s 85B(1) confers functions in the form of powers upon the CE (meaning the person holding or acting in the position of Chief Executive of the Department for Correctional Services).[39]

    [39] CS Act s 4(1).

11. By s 7(2) of the Act, the CE may delegate to any officer or employee of the Department, any of the powers, functions, duties or responsibilities vested in, imposed on or delegated to, the CE under the Act (or any other Act).

12. In this case, the CE’s powers, functions, duties and responsibilities have been delegated to Mr Paine as an employee of the Department holding the position of security manager at the AWP.  No issue is taken with respect to the legality or validity of this delegation.

13. Section 85B(1)(a) provides that the CE (or his/her delegate) may cause a person who enters a correctional institution to submit, subject to the person’s consent, to a limited contact search, and to having his/her possessions searched for the presence of prohibited items. The power to conduct a limited contact search or a search of possessions in respect of a person entering a correctional institution is conditional only on the person providing consent. If a person does not consent to a limited contact search, the CE (or his/her delegate) may, by s 85B(2), refuse the person entry to the institution or remove them using reasonable force.

14. Sections 85B(1)(b) and (c) provide for powers which are conditioned differently; both are conditioned on the existence of reasonable grounds for suspecting something.

15. Section 85B(1)(b) provides that the CE (or his/her delegate) may cause a person entering or in an institution and his or her possessions to be detained and searched if there are reasonable grounds for suspecting that the person is in possession of a prohibited item.

16. Section 85B(1)(c) provides that the CE (or his/her delegate) may cause a vehicle entering or in an institution to be detained and searched if there are reasonable grounds for suspecting that the vehicle is carrying a prohibited item.

17. There is nothing in the words of s 85B(1)(b) or (c) which requires a particular person to hold a subjective belief or state of mind before exercising the power to detain and search.

18. I consider that the powers to detain and search under s 85B(1)(b) and (c) are conditioned upon the existence of reasonable grounds for suspecting that a person is in possession of, or a vehicle is carrying (as the case may be), a prohibited item, at the time the powers to detain and search are exercised. This involves a wholly objective enquiry about a state of affairs existing at a point in time, being the time when the CE (or his/her delegate) causes the detention and search.

19. This interpretation is consistent with the statutory context within which the provision is enacted, and the evident purpose of the provision.

20. The CS Act is an Act to provide for the establishment and management of prisons and other correctional institutions, and for other purposes.

21. The primary object of the Act is the promotion of community safety (s 3(1)). Other objectives of the Act include to provide mechanisms for the establishment and proper administration of correctional institutions (s 3(2)(a)) and to provide for the safe and secure management of prisoners held in correctional institutions in the State (s 3(2)(b)). The CE and others involved in the administration of the Act are to be guided in the exercise of their functions by principles which include that in exercising powers under the Act, the paramount consideration must be the safety of the community (s 3(3)(a)).

22. The Act regulates all matters concerning the custody of prisoners and the management of correctional institutions (prisons).

23. The Act creates specific criminal offences by prisoners (ss 49, 49A) and persons other than prisoners (s 51). The offence with which the applicant is charged is an example of an offence that is plainly intended to discourage and mitigate the risk of conduct which might be preparatory for, or productive of, the introduction of contraband into prisons. It is an unassailable proposition that controlled drugs and other prohibited items in prisons represent a risk to prisoners, prison staff and the safety of the community more broadly. That is the statutory context in which s 85B is enacted.

24. Section 85B empowers the CE to cause certain actions to be taken with respect to persons and property which might otherwise constitute an unlawful detention, assault or tortious interference with property.

25. Importantly, civil liberties which are abrogated by the exercise of powers under s 85B are in the context of persons seeking entry into a facility which is and must be subject to prohibitions and restrictions.

26. The requirements for consent and reasonable grounds for suspicion, on which the exercise of the powers are conditioned, act as a restraint upon indiscriminate or unnecessary interference with individual liberties.

27. The powers to refuse entry where consent is not given (s 85B(2)) or where there is non-compliance with a vehicle search requirement (s 85B(6)(b)), and to remove a person or a vehicle from the institution by use of reasonable force             (s 85B(2), (5)(a), (6)(b)) for non-compliance, indicate Parliament’s apparent intention to elevate the importance of the integrity and security of a prison above individual liberties such as freedom of movement. The entitlement to refuse entry and to effect removal is so broad that it may be exercised where there has been a detention and search yielding no prohibited items (s 85(b)(10)).

28. The CE (or his/her delegate) may cause certain actions to be taken in order to prevent the introduction or presence of prohibited items in correctional institutions. The word ‘cause’ is used throughout s 85B to indicate that which the CE may or must do. To ‘cause’ means ‘to be the cause of; bring about’.[40] I agree with the Director of Public Prosecutions’ submission that s 85B is drafted in a way as to give effect to a legislative intention that the CE be able to ‘put in place procedures that best enable the gathering of intelligence and causing searches to occur on regular and frequent basis’.[41]

    [40]   Macquarie Dictionary (online) ‘cause’.

    [41]   TX 140.

29. Had Parliament intended for an individual to hold a state of mind before exercising the power of detention and or search, Parliament could have made that clear as it has done, for example, in s 52.

30. The text, context and evident purpose of s 85B support the conclusion that the powers of detention and search under s 85B(1)(b) and (c) are conditioned upon the existence of objectively reasonable grounds for suspecting the possession or carrying of a prohibited item at the time the CE (or his/her delegate) causes a search to be made.

31. It is implicit in the evidence that Mr Paine could direct persons in the position of Mr Wilson, as a member of the OSU, to perform actions in furtherance of maintaining safety and security within the prison.  There has been no suggestion to the contrary. 

32. On the evidence before me, the chain of operational command which operated at the AWP in relation to prisoner visits as at October 2022 was as follows: the security manager (Paine) would receive a security rating/assessment from the CIU, on the basis of which the security manager would issue comments taking the form of an instruction to OSU staff in the visitor of interest list as to how the visitor was to be dealt with in the event of seeking entry to the prison. The security rating/assessment was the product of an evaluation by a CIU member (Clifton) of the existence of reasonable grounds for suspecting that the visitor would be in possession of, or carrying, a prohibited item at the time of seeking entry to the prison.

33. On the facts of this matter, Mr Jones caused the applicant to be detained and searched (under s 85B(1)(b)) and Mr Wilson caused the applicant’s vehicle to be detained and searched (under s 85B(1)(c)). Subject to the existence of reasonable grounds for suspecting, Mr Jones could only cause the applicant to be detained as she was a person entering or in the institution. Likewise, subject to the existence of reasonable grounds for suspecting, Mr Wilson could only cause the applicant’s vehicle to be searched as it was in the institution.

34. Whatever subjective state of mind Mr Clifton or Mr Paine had reached, neither was in a position to cause the applicant or her vehicle to be detained and searched until she or it entered the institution. This tends to provide a practical example of the operational utility of the legislature not tying a prerequisite subjective suspicion to an individual exercising a power.

    Was there a reasonable suspicion?

35. In this case, the question of lawfulness of the search of the applicant’s vehicle falls to be determined by reference to the question of whether, on the morning of 22 October 2022 when the applicant’s vehicle entered or was in the AWP, there were reasonable grounds for suspecting that it was carrying a prohibited item.  In this case, that question is to be determined by reference to the sufficiency and cogency of the material known to, and considered by, Mr Clifton in making his security assessment of the applicant posing an imminent threat in the visitor of interest list on 21 October 2022.

36. The issue is whether at the time of Mr Wilson’s search of the Nissan Dualis vehicle which, on the evidence before me was entering or in the institution, there were reasonable grounds to suspect that it was carrying a prohibited item. That question must be determined by reference to the identity of the driver and sole occupant of the vehicle at the time, who was the applicant. The applicant was booked for a visit with the prisoner Hall and was the subject of a CIU security assessment that she posed an imminent threat. Mr Wilson was subject to instruction from the prison security manager that the applicant be refused entry, and further, that she and her vehicle be searched. In this case the security manager’s instruction, based upon the CIU security assessment of imminent threat was informed by the subjective suspicion arrived at by Mr Clifton the day before. The legality of the search of the vehicle turns on the question of the reasonableness of that suspicion which, through operation of the procedural chain of command, purportedly activated Mr Wilson’s power under s 85B(1)(c) to detain and search the vehicle.

37. The Full Court in R v Nguyen[42] addressed what constitutes a reasonable suspicion in the context of a police officer reasonably suspecting a matter for the purpose of a search of a person or a vehicle under ss 52(6) or (9) of the Controlled Substances Act 1984 (SA).

    [42] (2013) 117 SASR 432, [21]-[22].

1. The recorded prisoner telephone calls which informed Mr Clifton’s suspicion took place in the week and a half prior to the scheduled visit. The defence criticism that neither the applicant nor the prisoner Hall were participants in the calls, and the significance of that fact, must be evaluated within the overall context of the calls, including that two of them were placed from Hall’s prisoner telephone account and that Hall was specifically mentioned in two of them.

2. Call 14484392 is significant and represents a linchpin between Knight as the person discussing and issuing the instruction with respect to money and the prisoner Hall.  At the very least it provided evidence of an association between Knight and Hall.  Specifically, it stood as an instruction from Knight to Goodliffe to prepare a $200 money order for Hall using money from Knight’s account.  While it is true that there is nothing inherently lawful or nefarious about the arrangement of a money order, the context here involves an exchange of funds between two prisoners, what might be seen as a not insubstantial amount of money and facilitation by a person (Goodliffe) who is otherwise demonstrably involved in checking finances for the requesting prisoner (Knight).  It is to be noted that this call occurred approximately 24 hours after a call in which Knight had requested that Goodliffe ‘check it’, which Goodliffe agreed to (‘I will do it now’) and Knight made reference to $300.  I pause to observe that in call 14476632 that much of the conversation which concerned checking and the reference to $300 was conducted in an efficient manner with minimal use of explicit language such as to give rise to the possibility of the parties attempting to communicate in a covert manner.

3. In relation to calls 14499587 and 14504262, being the calls placed by Knight to Goodliffe on Hall’s prisoner telephone account, while there is nothing inherently indicative of illegality or planning for illegality by the use of another prisoner’s telephone account, again it is the context which is important in evaluating the significance of this having occurred.  By the time of the placement of these calls Knight had been recently communicating with Goodliffe in relation to funds including specifically for the apparent benefit of Hall.  At the least the use of Hall’s prisoner telephone account by Knight twice on 15 October 2022 strengthened the evidence of an association between them and was capable of supporting an inference that their association involved a degree of mutual collaboration. 

4. On 15 October 2022, Knight asked Goodliffe in two calls some approximately five hours apart whether he had checked his bank account.  This suggests a level of interest, if not urgency, on Knight’s part.  In call 14499587, Knight asserted that she ‘put 8 in there’ and in call 14504262, she referred to ‘$300 bucks’ being in addition to what she ‘put in there the other day’.  The conversations on this topic may be characterised as minimal and truncated.  I pause to observe that by this point there is a reasonable amount of evidence that over a period of days the prisoner Knight is communicating with the man Goodliffe in a semi-coded manner with reference to figures that can reasonably be equated to dollar amounts and the checking of an account.  I accept Mr Clifton’s evidence that it is a phenomenon known to the DCS Intelligence Unit that the introduction of contraband into prisons can be facilitated by individuals outside of prisons who perform the role of a ‘banker’ who manages funds which are pooled by prisoners to make payment for the contraband. 

5. On 17 October 2022, in call 14517594, Knight again makes reference to transferring funds to Goodliffe and again that much of the conversation is conducted with minimal spoken detail.  Importantly in this call and immediately preceding the statement about the transfer of funds, Goodliffe talks about visiting Knight on the upcoming Saturday morning.  On Mr Clifton’s evidence, and in my view, objectively reasonably, there was a suspicion of Goodliffe attending at the prison in connection with the introduction of contraband given the recent repeated and partly covert conversation concerning monies.

6. The following day on 18 October 2022 at the conclusion of call 14526709 Knight asked Goodliffe if he sent ‘that money to Sharee’, which Goodliffe confirmed that he did.  Knight followed on immediately with a further enquiry of Goodliffe as to whether he had checked his bank accounts, how much was in there and whether it would ‘work’.  Goodliffe made a reference to the figure 9 and Knight said that ‘there should be three lots’ and it should have been 11.  Again there is a lack of clear open dialogue on this topic and the totality of the conversation evidently relates to a reconciliation of funds to which Goodliffe apparently has access and Knight apparently has information.

7. In circumstances where Goodliffe had the day before flagged a visit to Knight, there was evidence of an association between Knight and Hall, Knight was enquiring about the provision of funds by Goodliffe to Hall and Hall had a prebooked visitor for the coming Saturday morning, in my view there were objectively reasonable grounds for suspecting that the person visiting Hall would be in possession of a prohibited item or that a prohibited item would be carried in a vehicle associated with that person entering the prison.  It is appropriate to add to those considerations that Hall was in a high security unit at the time which meant, on the evidence of Mr Clifton which I accept on this topic, that there was no realistic way of her receiving contraband unless it was through a visit. 

   Credibility of Clifton

8. On my construction of s 85B(1) of the CS Act it was not necessary for Mr Clifton or any particular individual to hold a suspicion in order to activate the powers of detention and search contained in that section. However, on the evidence before me, Mr Clifton claimed to have held such a suspicion and, given the way in which the procedural chain of command operated, that suspicion in effect stood as the reasonable grounds for suspecting that the applicant was in possession of a prohibited item or that her vehicle was carrying a prohibited item.

9. In this matter Mr Clifton is really the vessel through which the grounds for suspicion at the relevant time are known, and the reasonableness of the suspicion involves an objective evaluation.  The defence challenged the expertise, credibility and reliability of Mr Clifton.  On my analysis it is not readily apparent how a want of expertise or lack of credibility and/or reliability on the part of Mr Clifton could affect the lawfulness of the search of the applicant’s vehicle that was undertaken by Mr Wilson pursuant to the instruction that followed through the chain of command.

10. Almost the entirety of the information which informed Mr Clifton’s state of suspicion and security threat rating, and which on my analysis informs the objective grounds for suspicion, from recorded telephone calls.  That evidence is before me.  Mr Clifton gave evidence that he listened to those calls before completing the visitor of interest list and he was not explicitly challenged about not having done so.

11. To the extent that criticisms were advanced by the defence concerning Mr Clifton’s expertise, credibility and reliability, I do not consider it necessary to resolve those matters as I do not need to resolve the matter of the genuineness of any suspicion held by him.  If I am wrong about that, I record that I accept that Mr Clifton did genuinely hold a suspicion that the applicant as the nominated visitor to the prisoner Hall on 22 October 2022 may have sought to introduce contraband into the prison.  I consider that Mr Clifton was able to articulate his suspicions by reference to the telephone calls, such as I have already set out earlier in these reasons, and by way of explanation for his application of the imminent threat rating to the visit of interest list. 

12. Dealing briefly with the specific criticisms which were made regarding Mr Clifton’s evidence, I consider it only minimally significant that Mr Clifton gave limited evidence on the topic of his training and experience in the area of intelligence gathering analysis.  Ultimately on my interpretation of the telephone calls which informed Mr Clifton’s state of suspicion, it is not apparent that any form of specialised knowledge was, or was needed to be, brought to bear in interpreting the nature, content and input of the conversations being had.  To the extent that Mr Clifton gave what might be regarded as specialised evidence about the difficulty of introducing contraband into a high security unit and the phenomenon of a banker, this would seem to me to be in the category of knowledge obtained by special experience.[43] There was no challenge to Mr Clifton’s evidence on either of these topics.

    [43]   R v Fazio (1977) 69 SASR 54; R v Cluse (2014) 120 SASR 268.

13. As to the criticism which was advanced about Mr Clifton’s understanding of what constitutes reasonable cause to suspect which was made by reference to his ‘pub test’ answer (set out in paragraph 37 above), whilst I agree that Mr Clifton’s answer on this topic was inelegant and may even be described as somewhat clumsy, I did not doubt that he held an understanding of the requirement for any suspicion leading to an imminent threat rating to be a reasonable one.

14. Plainly enough, the witness was pre-empting questioning about the sufficiency of his suspicion. It was an inelegant answer and, in a respect (‘If I’m going to tell you a story you believe that story’), confusing. However, by providing the specifics of the money transactions, veiled language and use of another prisoner telephone account, and linking those to ‘enough suspicion’, I think the witness was articulating a basic understanding of the requirement for a link between information and suspicion/thought process. Viewed in that way, the pub test and story references are not uninterpretable or demonstrative of an erroneous understanding. I allow for an interpretation that the witness was introducing the notion of a link between information and suspicion.

15. At a broad level I accept the defence’s criticism of Mr Clifton for the loss of his original notes/running sheet documenting when he listened to particular calls and what he noted in respect of their content. However, as the calls themselves are recorded, and the fact of the recording is a matter which is squarely within the professional knowledge of the witness, I fail to see how the absence of those notes gives rise to a real forensic disadvantage to the defendant, particularly where on my construction of s 85B(1) there is no requirement for Mr Clifton to have genuinely held a particular suspicion.

16. Finally I am not persuaded that the failure of Mr Clifton to take specific action with respect to his suspicion about Goodliffe forming the role of banker in a planned contraband introduction evidenced a lack of diligence on his part for the reasons that he performed his role which was in respect of Goodliffe to provide an imminent threat security rating on the visitor of interest list and any further consequential action is a matter for the security manager at the institution.  Further I note the evidence of Mr Paine that information sharing by the CIU is a matter determined by the director of that unit.

17. I find that the search of the applicant’s vehicle on 22 October 2022 was conducted lawfully in accordance with s 85B(1)(c) of the CS Act.

    The public policy discretion

18. If I am incorrect in my assessment of the lawfulness of the search of the applicant’s vehicle, I would not exercise the discretion to exclude the evidence on public policy grounds.[44]

    [44] Bunning v Cross (1978) 141 CLR 54.

19. In the context of police officers exercising statutory powers, the Court of Appeal has emphasised the importance of officers paying close attention to the conditions on which the exercise of their powers depend, and has been prepared to exercise the discretion to exclude evidence where it has deemed it necessary to do so “to censure the excesses of power” by which evidence is obtained to better secure compliance with the limitations and the exercise of such powers.[45]

    [45] R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398; R v Rockford [2015] SASCFC 51.

20. The exercise of the discretion involves the weighing of competing public interest considerations which Stanley J described in R v Golja:[46]

    The discretion is enlivened by unlawful or improper police conduct.  Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations.  Those considerations focus on competing aspects of the public interest.  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 frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the imitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power. 

    [46] [2017] SASCFC 61, [35].

21. In Bunning v Cross, Stephen and Aickin JJ identify five considerations which had to be weighed in the exercise of the public policy discretion, these being:[47]

    1.Whether the unlawfulness was deliberate or reckless on the one hand or the product of mistaken belief on the other;

    2.Whether the unlawfulness effects the cogency of the evidence obtained;

    3.The ease with which the law might have been complied with;

    4.The nature of the offence;

    5.Whether it was the intention of the legislature to narrowly restrict the [police] in the exercise of the power conferred.

    [47] Bunning v Cross (1978) 141 CLR 54, [78]-[80] (Stephen & Aickin JJ); R v Armistead [2019] SASCFC 85, [104] (Hinton J, Kelly and Stanley JJ agreeing).

22. The offence is serious and exclusion of the evidence would end the prosecution case.  If there was unlawfulness in the form of a want of a reasonable suspicion, it did not effect the cogency of the evidence obtained. 

23. Mr Wilson acted on instructions from the security manager of the institution supported by a CIU security threat rating of imminent threat which was provided to him and his colleagues in writing and in advance of performing his security related duties on the morning of 22 October 2022. On the evidence before me Mr Wilson and his colleagues complied with the requirements of s 85B concerning the limited contact search, detention and personal searching of the applicant and with respect to the notification of police about the detention of the applicant and custody of the prohibited item which was found. In no sense could it be said that Mr Wilson deliberately or knowingly acted in an unlawful manner or in a manner which exceeded his powers under s 85B.

24. Any encroachment upon the applicant’s civil liberties, in particular the right to freedom from interference with her vehicle and its contents, must be evaluated within the context of her seeking entry into a correctional institution which is subject to broad controls which are largely to be determined and enforced by the CE (or his/her delegate) under the statutory regime of the CS Act.  The fact that the CE (or his/her delegate) may refuse entry to a person who does not consent to a limited contact search or who does not comply with the requirements for a search of their person or their vehicle, and that they may be removed from the institution by use of reasonable force, indicates an intention of the legislature to restrict the liberties of persons seeking to gain access into prisons and a concomitant intention to confer broad powers upon the CE and persons working in prisons to restrict the entry of persons and items presenting a risk to security.

25. Taking all of those matters into account I would not exercise the discretion to exclude the evidence of the search of the applicant’s vehicle.

    Alleged non-compliance with s 74D of the Summary Offences Act 1953

26. Section 74D of the SO Act is concerned with the obligations of an “investigating officer” to record interviews with suspects. Section 74C provides that investigating officer means:

    (a)        a police officer;

    (ab) an investigator under the Independent Commission Against Corruption Act 2012; or

    (b)     a person authorised under an Act to investigate offence and arrest   suspected offenders.

27. The applicant submits that Mr Wilson was a person authorised under the CS Act to investigate offences and arrest suspected offenders and is therefore an investigating officer to whom the obligation contained in s 74D applies.

28. The applicant’s argument as I understand it is that as s 85B refers to a power of search and arrest of non-prisoners, and as searching necessarily involves investigating, it follows that Mr Wilson and those in his position are authorised under the CS Act to investigate offences and arrest suspected offenders. I do not accept the applicant’s argument.

29. As a preliminary matter the appearance of the word ‘arrest’ in the heading of s 85B is not determinative and cannot stand in place of the actual words of the provision. As set out above s 85B(1)(b) empowers the CE (or his/her delegate) to cause a person to be detained and searched in specified circumstances. The term ‘detain’ is to be contrasted with the term ‘apprehend’ which is used in s 52. An officer who exercises the power of apprehension under s 52 is commanded to return a prisoner forthwith to a correctional institution and to take a non-prisoner forthwith to the nearest police station. By contrast, where a person is detained under s 85B, that detention may be finite (for the purpose of facilitating a search) or may result in the person being handed over to the custody of a police officer.

30. Sub-sections (7) and (8) of s 85B provide for a person to be kept in detention in certain circumstances until they can be ‘handed over into the custody of a police officer’, and sub-s (9) provides that where a person is so detained, the CE must immediately cause a police officer to be notified. The provisions of s 85B in their totality provide for the detention of a person in a temporary situation and pending their handover to police. A police officer has a power of arrest conferred by s 75 of the SO Act.

31. Importantly the definition of investigating officer means a person authorised under an Act to investigate offences and arrest suspected offenders. A search conducted under s 85B of the CS Act may yield evidence of the commission of an offence or it may not. Section 51 of the CS Act criminalises conduct by persons other than prisoners, including the possession of controlled drugs or other prohibited items in a correctional institution buffer zone and the introduction into a correctional institution or possession of certain items. Whilst the exercise of powers under s 85B may yield evidence of the commission of such an offence, it does not follow that it authorises DCS officers to investigate such offences because one evident purpose of the power is to keep prohibited items out of prisons, as is demonstrated by the refusal of entry provisions.

32. I do not consider that Mr Wilson was an investigating officer to whom s 74D of the SO Act applied. Had that provision have applied to him it can only have related to the conversation which he had with the applicant about sharps in the car in which she said ‘there may be something in her wallet’ and her confirmation of the handbag in the vehicle being hers. To the extent that the application is for exclusion of evidence of that conversation or those conversations due to a failure of compliance with s 74D of the SO Act there is no basis on which to exclude it or them from the evidence in the trial.

1. Orders

   1.The application for the exclusion of evidence of the search of the applicant’s vehicle is refused.

   2.The application for exclusion of evidence of the applicant’s statements to DCS officers is refused.