R v Curren No. DCCRM-96-757 Judgment No. D3659

[1997] SADC 3659

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Ruling of His Honour Judge Robertson

Hearing

12/08/97.

Catchwords

VOIR DIRE Evidence - application to exclude search and seizure of evidentiary material - whether the defendant consented to the search - whether evidence admissible - discretion to exclude - competing public policy considerations - application refused

Materials Considered

• Summary Offences Act 1953, as amended, s68(1)(a) ;
• Controlled Substances Act, 1984 as amended, s52(9) ;
• Regina v Manglesdorf (1995) 66 SASR 60, referred to.
• Bunning v Cross (1977-1978) 141 CLR 54, applied.

Representation

R:
Counsel: MR A. KIMBER - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused PHILLIP JOHN CURREN:
Counsel: MR P. WAYE - Solicitors: WAYE D.P.

DCCRM-96-757

Judgment No. D3659

13 August 1997

(Criminal)

R v CURREN, Phillip John

Judge Robertson

Criminal

The defendant is charged with possessing cannabis for sale contrary to Section 32(1)(e) of the Controlled Substances Act, 1984 (as amended).Particulars of the offence are that on 5 March 1996 at about 2 kilometres west of Bordertown, the defendant knowingly had cannabis, a prohibited substance in his possession for the purpose of selling it to another person, the amount of cannabis being in excess of 2 kilograms. Upon arraignment the defendant pleaded not guilty.

When the trial commenced and before the empanelling of a jury a voir dire hearing was conducted on the application of the defendant.The defendant seeks an order that the finding and seizure of the cannabis in a motor vehicle driven by the defendant be excluded from evidence in the exercise of my discretion. The basis of the application is that the search of the motor vehicle was unlawful in that it was not authorised by Section 68 of the Summary OffencesAct 1953 (as amended) or Section 52(9) of the Controlled Substances Act.

Briefly the circumstances arising from the charge are that on 5 March 1996 the accused was travelling in a "Thrifty" hire care on the Duke's Highway.He was travelling in an easterly direction approaching Bordertown when he was required by the police to enter what has been described as a police checking station situated about 2 kilometres west of Bordertown.At the checking station he was required to undergo a breath test with "Alcotest" apparatus.He was also required by the police to produce his driver's licence.The defendant was also questioned regarding the registration of the motor vehicle which resulted in him producing the rental contract for the hire of the car. A motor vehicle registration check was also made.After all these matters had been completed the inside of the motor vehicle was searched by a police dog trained in the detection of drugs.As a result of the search six large packets containing cannabis were discovered in a suitcase lying on the back seat of the motor vehicle.Following the discovery of the cannabis the defendant was charged with the offence for which he is now standing trial.

None of the facts which I have so far related are in dispute.However, the circumstances and the conversation which the defendant had with Constable Pink relating to the search are in dispute.I do not propose to specifically identify each point of dispute arising from the evidence of the defendant on the one hand and Senior Constable Taylor and First Class Constable Pink on the other.However, there are two areas of dispute which I must resolve and they are:-

* the terms of the conversation between the defendant and Constable Pink which led to the search of the motor vehicle

* whether the boot of the motor vehicle was searched before or after the discovery of the cannabis in the suitcase.

To resolve these two issues I need to consider the evidence of the two police officers and the defendant.There was a substantial difference between Constable Pink and the defendant regarding the conversation between them which led to the search of the motor vehicle.To a large extent Constable Pink's evidence on that subject was substantiated by Senior Constable Taylor. Further, and more significantly, in the video record of interview which was held shortly after that conversation Constable Pink repeated the contents of the conversation and the accused agreed that it was an accurate record of the conversation.Constable Pink had made a hand written record of the conversation at the Bordertown Police Station shortly prior to the video record of interview was undertaken.With regard to the inspection of the boot both police officers said that it occurred after the interior search of the motor vehicle and after the cannabis had been discovered.The defendant said it occurred prior to the police dog searching the interior of the motor vehicle.

I formed the view on observing and listening to the defendant that his memory was unreliable regarding those two events.When giving evidence about the time he alighted from the motor vehicle he was uncertain.He said at one point that the events were about 18 months ago and his "... memory is not spot on".His memory regarding the conversation with Constable Pink contained variations. Significantly his evidence on this differed from that which confirmed in the record of interview as an accurate description of the conversation.

Whilst taking into account the experience the police officers are likely to have in giving evidence they compared more favourably than the defendant in my assessment of their reliability.They appeared to have a more accurate memory of the events.To some extent their evidence is supported by the video record of interview.Senior Constable Taylor's evidence lent support to the evidence of Constable Pink in some vital areas ofhis evidence.With regard to the time when the boot of the motor vehicle was searched both provided similar evidence.It also seems more logical that if the police were to search the vehicle with the assistance of a police dog that they would use the dog for the entire search.There seems no reason why there would be an isolated search of the boot before the police dog arrived at the motor vehicle.

Accordingly, for the reasons I have expressed, I prefer the evidence of the two police officers to that of the defendant on the subject matters of the conversation regarding the search of the vehicle and the time when the boot was searched.As a result of reaching that conclusion I find that the conversation regarding the search of the motor vehicle is as stated by Constable Pink which I set out hereunder:

Constable Pink said:

"Do you have anything illegal in the car, namely, any weapons or drugs"

The defendant said:

"No, there shouldn't be".

Constable Pink said:

"We have a drug dog present and do you have any objection to us searching the vehicle or searching the car".

The defendant said:

"No, no I don't".

Mr Waye, counsel for the defendant,first submitted that the consent of the defendant as evidenced by the conversation I have referred to was not in fact a consent.He submitted that, in the circumstances which confronted the defendant at the time, that he felt he had no option but to consent.Counsel's second submission was that even if there was a "real" consent, the police cannot rely upon it to establish the legitimacy of the search because, absent a warrant to search, the only valid way a search could be undertaken was by the proper exercise of the power provided by Section 68 of the Summary Offences Act or Section 52 of the Controlled Substances Act.Mr Waye further submitted then in either of those circumstances the search was unlawful because on the admission of Constable Pink the pre-requisite for the use of the respective powers was not present at the time of the search.Counsel for the defendant finally submitted that as the search was unlawful that I should exercise my discretion identified in Bunning v Cross (1977-1978) 141 CLR at 54 and exclude from the evidence at the trial the finding and seizure of the cannabis.

Section 68(1)(a) of the Summary Offences Act provides:-

"68 (1) A member of the police force may do any or all of the following things, namely stop, search and detain -

(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that -

(i)there are stolen goods; or

(ii)there is an object, possession of which constitutes an offence; or

(iii)there is evidence of the commission of an indictable offence".

Section 52(9) of the Controlled Substances Act provides:-

"52(9)Where an authorized officer who is a member of the police force suspects on reasonable grounds that a substance that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, he 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;

(b)detain and search the vehicle, vessel or aircraft; and

(c)seize and remove from the vehicle, vessel or aircraft anything that he has reasonable cause to suspect affords evidence of an offence against this Act".

It is not in dispute that at the time Constable pink instigated the search by Senior Constable Taylor and the police dog that he did have "reasonable cause to suspect" as required by Section 68(1)(a) of the Summary Offences Act or that he suspected "on reasonable grounds" as required by Section 52(9) of the Controlled Substances Act.

I turn to the initial submission of Mr Waye, that the consent of the defendant was not a voluntary consent but a consent he felt compelled to give.Inhis evidence the defendant said that he did not want the police to search his vehicle. He said at the time he was very scared.I accept that evidence.The defendant must have been aware that if the police dog searched the vehicle it was highly likely, if not a certainty, that the cannabis would be discovered. The cannabis was stored in a suitcase on the back seat of the motor vehicle. At the time that his consent was sought he was in the presence of at least two uniformed police.Nearby there were other uniformed police.He was within the precincts of a police checking station.He had been subject to coercive requests to undertake a breath test, to produce his licence, to produce material regarding the registration of the motor vehicle.In my view, it follows from all of those circumstances that the accused felt compelled to consent to the search.This conclusion would seem to accord with logic and commonsense.It is hard to understand why the defendant would have consented to the search knowing that it was virtually certain that the cannabis would be discovered unless he felt compelled to do so.

In my opinion, for the consent to be a voluntary consent the police should have informed him that he was not required to give his consent to the search and that if he did not the motor vehicle would not be searched.The defendant would then have two options available to him and could then have made an informed decision.In my view, there is very little doubt that if the defendant had been given both options he would have refused to allow the search to be undertaken.It follows that I find consent given by the defendant was not a consent which the police could rely upon to undertake the search.

If I am wrong in that conclusion and the consent was a voluntary, informed consent then in my opinion the search was lawful.There is nothing in the terms of Section 68 of the Summary Offences Act or Section 52 of the ControlledSubstances Act which suggests that, in the absence of a warrant, the only source of power to search are pursuant to those two provisions.I cannot see that a voluntary informed consent allowing the police to undertake a search is not a legitimate basis for a police search.

Having concluded that the purported consent given by the defendant was not a consent it follows that the search was unlawful.The police cannot rely upon the consent to establish the legitimacy of the search.Further, as I mentioned earlier, it is not disputed that the respective pre-requisites for the use of Section 68 of the Summary Offences Act or Section 52 of the ControlledSubstances Act were not present at the time of search.Having reached that conclusion I now need to turn to the public policy discretion identified in Bunning v Cross (supra)

For this purpose it is necessary to consider the evidence of Constable Pink regarding the search.The checking station was part of a police operation called "Operation Pit Stop".There had been previously four or five similar operations and he had been involved in each one.He said there had been a briefing on this operation before it commenced.He said the checking station was a multi-purpose one.It was established to monitor the traffic going to the Melbourne Grand Prix.Its functions were random breath testing, licence checking, registration checking and drug searches as required.

As a result of his involvement in this operation and other similar operations and from other police information he received over time, Constable Pink had formed an understanding of what he described as a drug courier profile.In other words he had a picture of people who loosely fitted that description.He described the characteristics of that profile.One of the characteristics he mentioned was that a courier often drives a hire car.Constable Pink said that when he approached the defendant's motor vehicle he observed the "Thrifty" hire car sticker on the rear window.Following this he observed other characteristics regarding the defendant which he considered fitted the profile. He said that "... a picture was starting to build in his head and things just didn't look right".He said that it was these characteristics he identified which prompted him to ask the defendant if the police could search the vehicle with the police dog.Constable Pink said that he acted upon the defendant's indication that he consented to an inspection of his motor vehicle.He said that if he had not received the consent he would not have proceeded to have the vehicle searched as he did not consider at that point he had "... reasonable cause to suspect" as required by Section 68(1)(a) of the Summary OffencesAct.

In my view, it is useful to briefly refer to the comments of the High Court in Bunning v Cross (supra) on the terms of the public policy discretion.It will be recalled that the High Court reaffirmed the principle laid down by the High Court in Reg v Ireland (1970) 126 CLR 321.Justices Stephen and Aicken explained the terms of the discretion at pages 74-75:-

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused.It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases.It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case, unlawful or improper conduct).Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called "real evidence", such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on.(My emphasis)

In the exercise of the discretion I am required to weigh up the competing public policy considerations.In Bunning v Cross (supra) Stephen and Aitken JJ provided some guidance regarding the exercise of the discretion.At pages 77 and 78 they said:-

"The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct,much of it hedged about with safeguards for the individual.These safeguards the executive, and, of course, the police forces, should not be free to disregard.Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm.This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignorable part" - per Holmes J. in Olmstead v United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law.On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law".

One matter which Stephen and Aicken JJ said was relevant to the exercise of the discretion was whether the unlawful act of the police was a deliberate or reckless disregard of the law (see Bunning at 78).In my opinion the police search here was not a deliberate or reckless disregard of the law.It was the result of a mistaken belief on the part of Constable Pink.I am of the view that Constable Pink believed that he had obtained the appropriate consent of the defendant.He further believed that such consent permitted the police to lawfully undertake the search.He said in evidence that he thought his question was self explanatory and that the defendant would have been aware that he had a choice.I accept that this was his belief.

A further matter to be taken into account in the exercise of the discretion is that the illegality of the search does not affect the cogency of the evidence obtained in this case.Because of my finding that the illegality was not the result of a deliberate or reckless disregard of the law by the police this issue is relevant (see: Bunning at page 79).

Finally, in the exercise of my discretion I take into account the nature of the offence charged.As Stephen and Aicken JJ said in Bunning at page 80 it is an important factor.The charge is a serious one.This is recognised by the maximum penalty Parliament has provided for such an offence.The maximum penalty is a fine of $50,000 or imprisonment for 10 years or both.The serious nature of an offence of this kind has been recognised by the court of Criminal Appeal in the decision of Regina v Mangelsdorf (1995) 66 SASR 60.

In my view in weighing up the competing public policy considerations the balance of those considerations must come down in favour of the admission of the evidence.Accordingly, the application is refused.