R v D, J E - [2017] SADC 83

District Court of South Australia
(Criminal)
R v D, J E
[2017] SADC 83
Ruling of His Honour Judge Beazley (ex tempore)
20 July 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Ruling as to admissibility of evidence of a search of an accused at a Tavern - Police conducting a 'walk through' of the licensed hotel premises - the accused was observed to walk from toilets before being approached by a police officer - 21 TFMPP tablets, a syringe, cash in the sum of $850, and a mobile phone located in the accused's pockets - whether police reasonably suspected that the accused had in his possession any substance in breach of the Controlled Substances Act - whether police should have warned the accused before asking him for the mobile telephone PIN - whether the evidence obtained from the search of the accused ought be excluded - whether the evidence obtained from search of the mobile phone ought be excluded in the exercise of the courts discretion - subsequently the police searched the accused's house and motor vehicle - whether the evidence obtained from the search of the house and motor vehicle ought be excluded.
Held: Police did reasonably suspect that the accused did have possession of illicit drugs - and the fruits of the search at the Tavern admitted - however the fruits of the search of the mobile phone excluded in the exercise of the discretion.
Controlled Substances Act (1984) s 32(3); s 52(b); Summary Offences Act (1953) ss 67; 74 and 74A, referred to.
R v Rogers (2011) SASC 40; Pollard v R (1992) 176 CLR 177; George v Rockett (1990) HCA 26; R v Rondo [2001] NSWCCA 540; R v Hunt [2014] NTSC 19; Ridgeway v R (1995) 184 CLR 19; Chehil v The Queen [2013] 3 SCR 220; Parker v Comptroller of Customs [2009] 83 ALJR 494; R v Ioannidis [2015] SASCFC 158; R v Nguyen (2015) SASCFC 7; R v Rochford (2015) 122 SASR 391; R v Nguyen (2013) 117 SASR 432; Gilham v R [2007] NSWCCA 323; R v Eggen & Eggen-Zeytoun [2016] SADC 26; Michaelis v Police (1999) SASC 102; R v Dennis (unreported decision - Court of Criminal Appeal) delivered 8/12/03, per King CJ; Millhouse & Olsson JJ; R v Chapman (2001) 79 SASR 342; R v White (2014) SASC 33; Police v Bain (2011) SASC 228; R v Nguyen [2016] SASCFC 96; R v Dam & Nguyen [2015] SASCFC 131; Police v Moukachar (2010) SASC 199; R v Dolan (1992) 58 SASR 501, considered.

R v D, J E
[2017] SADC 83
Introduction

In this case J E D (‘the accused’) is charged with the offence of trafficking in a controlled drug in a prescribed area contrary to s 32(2a) of the Controlled Substances Act.
Mr Adams appeared as counsel for the DPP. Mr Weir appeared as counsel for the accused.
·The formal application
The accused, by application dated 18 July 2017, brought pursuant to rule 49 of the District Court Criminal Rules 2014, seeks, amongst other things, an order excluding all of the evidence at trial arising out of searches of the accused, his motor vehicle and his home, by the police on 9 August 2015. The grounds of the application were that the police did not possess the requisite reasonable suspicion at the time of the search of the accused and that, accordingly, the search was unlawful or improperly carried out.
If the application was successful then it was arguable that any potential evidence arising out of the later search of the accused's vehicle and home is also tainted. See R v Rondo [2001] NSWCCA 540 and R v Eggen & Eggen-Zeytoun [2016] SADC 26.
The accused's application came very late in the piece. This was not the fault of counsel, Mr Weir. In any event it came on, essentially, in a rather haphazard way. The application sought that the time be extended because it was late and in breach of those Rules.
That application for an extension of time on that issue was not opposed by the DPP, and was granted.
I acceded to the joint application for a voir dire.
·The oral application
During the addresses Mr Weir sought an order that the contents of the accused's mobile phone ought also be excluded for a reason which had not been raised in the application. The submission was that the police had failed to caution the accused notwithstanding that they had reasonable cause to believe that the accused had committed the offence of being in possession of a controlled drug.
In consequence of the failure to caution, it was asserted that the accused had provided his PIN number for his mobile phone. The accused deposed that he believed he had to provide it. The access to his mobile phone provided the police with the evidence to charge the accused with trafficking in a controlled drug.
That complaint that the police had failed to warn the accused, and that the accused had believed that he had to provide the PIN number, was the ground for the exclusion of that evidence.
On this issue of the failure to warn an accused I referred the parties to the respective case of Michaelis v Police (1999) SASC 102; and R v Dennis, an unreported decision of the Court of Criminal Appeal delivered on 8 December 1993 by the former King CJ with whom Millhouse and Olsson JJ agreed.
The submission did take counsel for the DPP by surprise. I permitted him an adjournment to consider his position. Ultimately he explained that he did not wish to make any submissions in relation to this issue. Accordingly, despite the lateness of the matter, I am obliged to consider and rule on that oral application as well in the interests of justice.
The prosecution case
The prosecution case at trial will be that on 9 August 2015, the police attended at a licensed premises, the West End Tavern, at about 8.15 p.m. One of them, Constable Michael Hardy, deposed that he observed the accused leave the toilets and walk past him.
The accused's case is that the police engaged in effectively a ‘bona fide’, effectively checking patrons without holding any suspicion about them in the hope of finding some incriminating material. See the respective decisions in of R v Chapman (2001) 79 SASR 342, The Queen v White (2014) SADC 33 and The Police v Bain (2011) SASC 228.
The evidence
During the search of the accused, the police uncovered a film tube which contained 21 TFMPP tablets, a syringe, some cannabis and a pipe, a wallet with $800 in cash and a mobile phone.
The prosecution called, as a witness, the now Senior Constable Michael Hardy. The accused gave evidence. During cross-examination of Senior Constable Hardy counsel for the accused tendered a short video of Senior Constable Hardy first approaching the accused and having a discussion with him followed by the search of the accused. Another short video of part of the interview by another police officer, Constable Crichton, was also tendered during cross-examination.
Neither party required Senior Constable Crichton to give evidence. Senior Constable Hardy deposed that he had attended with Constable Crichton while on uniform mobile patrol at about 8.15 p.m. at the West End Tavern in Hindley Street. He described conducting a general walk through the hotel to see who was there. He said he knew from previous experience that the West End Tavern had persons of interest to the police. He was asked specifically about his observations of the accused:
QWhere did you first see the accused.
AWhen he exited the toilet.
QHow did the accused appear.
AHe appeared to me to be under the influence of drugs or alcohol.
QDid you notice anything else about the accused at that time.
AJust when he walked past?
QYes.
ANot really, I approached him to have a chat.'
He said, before he was directed to his notes, that he did not engage with the accused straightaway. He said subsequently that the first thing he looked at was the accused’s eyes and could tell from his experience that they seemed to struggle to focus on anything. He said that the accused appeared fidgety and not wanting to interact with police.
He said that he thought that the accused appeared nervous and he asked the accused how he was. He said it was during that chat that he formed the view that the accused was under the influence of drugs or appeared to be. He said 'He had a dry mouth, the pupils, once he came back there was no colour in the eyes. His mouth was dry and it looked like he was chewing something, although there was nothing in the mouth'. He said that the accused’s hands were in his pockets, and that Senior Constable Hardy had noticed the top of a syringe.
He said that while he was speaking with the accused he asked if he had taken any drugs and the accused said he had. He then said to him that he believed that he may be in possession of further drugs and that he would search him pursuant to s 52 of the Controlled Substances Act. He said that the accused was, at first, not very happy about it, which he said added to his belief there may be something there. So he explained to the accused he was going to search him and said he expected to find drugs.
He said that during the search a black plastic film roll was produced and it had some bags containing tablets which he believed to be ecstasy. He said the cash and the wallet and the mobile phone were also placed on the stool. He said he had a conversation with Constable Crichton and relayed what he had found but thought that the search had been completed by the time he spoke to Mr Crichton. He could not recall whether he checked the mobile phone at the time or whether it was later or whether Constable Crichton had done so.
When cross-examined he acknowledged doing the walk-throughs regularly in quite a few premises. He said it was common practice to conduct such a walk-through because it is good for patrons to identify police officers in the licensing area. He said that he did not have a body cam but agreed that he was looking for people in possession of drugs that night.
He could not recall how long he had been there with Mr Crichton before the accused walked out of the toilets. He said he had been speaking to other patrons of the premises, some of whom he asked for their particulars. He said the West End Tavern was frequented by the homeless in the CBD and he did not always ask people to produce their licences.
He agreed that when the accused walked out of the men's toilets he almost immediately bumped into Mr Hardy and effectively he engaged with the accused immediately. He said he had a general conversation and did not go straight into getting the details but it all happened very quickly, within a short space of time. When asked again he said he could not recall how quickly it was that he asked him for his particulars but said that he would have obtained his name before he asked him as part of the process to empty the contents of his pockets onto a stool. He said that he only asked him to empty his pockets as he told him he would be searching him under s 52 of the Controlled Substances Act. He said he based his request, having formed a reasonable suspicion in his mind in consequence of the demeanour which he later referred to as 'appearance' of the accused as a person affected by drugs and one who had admitted to him that he had consumed drugs. He said the pupils were enlarged and he appeared fidgety and again the mouth was dry. He said he could not recall smelling alcohol and that influenced him into believing that his appearance was caused by drug taking.
He said the accused appeared to be under the influence of drugs and 'If I see someone I believe to be under the influence I ask them whether they're on drugs because there's no harm in asking'. He said it was clear from his experience that somebody, especially with ecstasy, presented in that same manner. He said he formed the opinion there may be some more drugs and he was going to search him.
He said he saw the syringe when he asked him if he had anything on him that he should not have. But he did explain that his suspicions to do the search were based only on his appearance and demeanour and the response, rather than the syringe.
He was cross-examined about his notes which, among other things, said 'Searched s.52 CSA black plastic cylinder containing three bags believed to be of ecstasy, a smaller bag of cannabis, a pipe, a hollowed-out battery, a used syringe and the wallet containing $800 in cash'. He said that the accused was arrested for trafficking and unlawful possession and subsequently his car and home address were searched.
He said that he does not have an independent memory now of when he saw the top of the syringe out of the accused's pocket, although he thought he would have at the time he made his notes. He denied the suggestion to him that he did not make any observations of a syringe until after the pockets were emptied. He said the three factors which caused him to have reasonable suspicion were the demeanour, the syringe and the answer to the question 'Have you taken drugs?'.
Senior Constable Hardy could not recall who asked the accused about the PIN number on his mobile phone but agreed he may have done so. He was then shown a videotape from the hotel and he agreed that he did appear to look at the accused's mobile phone and that, in those circumstances, he must have asked for the PIN number.
When the video appeared to show a man quietly and calmly sitting on the stool, he said that when he first started the accused appeared to be swaying like he did not want to stand still but thought he was more casual subsequently. He confirmed that he must have asked for the PIN number. He could not recall if he said to the accused that he was not obliged to provide the PIN number. He denied the assertion that he was going to search the accused in any event, even without having looked at his appearance.
The accused gave evidence that he had borrowed $1,000 from a friend before having bad luck on the pokies and was chasing $1,600 which he needed to deposit in an ATM. He said he only had $850 left and decided to try the pokies at the West End Tavern. He said that he had owned a floor sanding company for about 20 years and that earlier that night he stopped at The Hope Inn on Port Road and lost $150. He said he had to go to bingo that started at 6 o'clock, although his partner did not want to go. He said there were various shows at the Edinburgh Castle hotel and said he was tired and tossing up whether to go.
He agreed that he was in possession of the 21 TFMPP tablets which he described as 'a rip off of ecstasy tablets'. He said he got them from a friend. He said his relationship with his partner was over and he did not want to leave the tablets in his house so he took them with him in the work van. He said after bingo he had gone to the van. He then took the drugs and marijuana with him. Again he said he was really tired, tossing up whether to go to the show or not because he had ‘seen a million shows before’. He said if he decided to go there he would have consumed a couple of those pills.
He said he had been taking those tablets for years. He also said he was addicted to amphetamines and had been for two years prior to 9 August 2015. He said he was carrying the syringe because if he decided to use amphetamines that night he would use the syringe. In his own words he described himself as 'being pretty knackered', having been out all Saturday night. He had consumed four tablets on that occasion. He said that at the Tavern he had only one beer and no tablets before speaking to the police.
He accepted that Constable Hardy had asked him a question about drugs. However he said his answer was 'No, I haven't taken it'. He agreed that he looked tired. He had looked in the mirror in the toilet, freshened it with water, his eyes were tiny. He said police were interrogating people everywhere, ‘it was bizarre, they had notepads’. He said the police officer ‘pounced on him within a microsecond of coming out of the toilets’, and he forced him to give him identification. He pulled out his pockets and asked him to give the PIN number for his mobile phone. He gave it because he was taught to obey police and thought he had to. He believed from the video that Mr Hardy was talking to him before the pockets were emptied.
The accused was asked about the question of drugs and repeated that he had not taken any drugs. He said that was his answer. He denied that the police officer had referred to the search being under the Controlled Substances Act, but subsequently he conceded that it may have been said. He said that he believed he did not have a choice, 'There was no asking me if I could, no-one asked me for permission, and he just demanded it'. He said he was patted down afterwards because the police officer obviously saw or felt the syringe. He agreed that he did not tell the police officer about the syringe being in his pants.
He also gave some evidence about messages on the phone indicating where he got his pills from He referred to a person called Jimmy. He was asked in cross-examination why he did not hide the pills at home. He said that he was in a hurry to go to bingo. He said that on occasions he went out on Saturday night he would discretely put his tablet in his mouth and swallow it, in answer to the question whether he would consume it in the toilet. He denied that the police officer had sufficient time to consider whether he looked tired, felt tired or was looking rundown.
The legal principles
I will very briefly deal with the law before turning to the findings. The police powers are well-known and set out in respect of s 52 of the Controlled Substances Act.
Under s 52(6): 'An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of the Act.'
Under the Liquor Licensing Act, s 124 permits a police officer to remove a person or prevent the entry of a person into licensed premises if the person is intoxicated or behaving in an offensive or disorderly manner. Section 76 of the Summary Offences Act permits a police officer to enter licensed premises if requested by the licensee to remove any person on the premises. Section 74A of the Summary Offences Act permits a police officer, who has reasonable cause to suspect an offence having occurred or about to occur, to request details of the name of the individual and also to require the person to produce his licence or other identification.
A 'reasonable suspicion' has been discussed by the Court of Criminal Appeal in a number of recent cases.
In the case of R v Nguyen (2016) SASCFC 96, the Court of Criminal Appeal explained:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists in the context of an investigation of the truth of that fact is a working hypothesis for which there is some supporting material. There must be a reasonable connection between the supporting material and the suspicion. Mere curiosity, speculation or idle wondering about the existence of a fact is not the same as a suspicion.
It was said that s 52(6) requires more than one's reasonable suspicion that a drug might be found, they require a reasonable suspicion that the appellant has rather than may have a substance in his possession and a reasonable suspicion that the substance is, as I say, for these purposes, an illicit drug.

Earlier in R v Dam and Nguyen (2015) SASCFC 131 at 25 the court reaffirmed the position as follows: 'A police officer, like any other member of the community, is entitled to ask another person questions. He does not need any statutory authority or even a reasonable suspicion to do so.'
The court appeared the dicta of Vanstone J in the case of Police v Moukachar (2010) SASC 199 as follows: 'A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. A police officer does not need to bring himself within the circumstances addressed in sections such as those to which I have already referred to ask designated questions or other questions. However, there is no obligation to answer such questions unless one of those questions obliges the individual to answer.'
In the case of Bain v Police (2011) SASC 228, White J said at [18]: 'A police officer is not, of course, entitled to mislead a person who is the subject of the exercise of police powers as to the nature or extent of those powers or as to the person's obligation in relation to such powers. Conduct of that kind would be reprehensible and may give rise to an occasion for the Bunning v Cross discretion. There was no misleading here nor did he believe that there was some misleading conduct. There is no basis for the submission’.
The court in that case considered the police officer was entitled to ask the questions.
‘Reasonable suspicion’ was also discussed by the High Court in George v Rockett (1990) HCA 66. It highlighted the difference between proof beyond reasonable doubt, and suspicion.
Findings
I turn to the findings in the case. Senior Constable Hardy presented as a relatively young police officer who was initially somewhat nervous in the witness box. I infer that he was handicapped by the delay of two years since the date of the arrest. I infer that he had only been informed of the need to give evidence in the last couple of days, as was the first notice anyone had of the application to exclude. He had to rely upon his notes to refresh his memory. I observed him while giving evidence. He was clearly surprised about the CCTV film. However, when compared to his evidence the film in my view was not inconsistent with his evidence before he saw the film.
In my opinion, he was an honest witness recalling as best he could the events of the night of 9 August 2015. I did not discern any embellishment by him at all. He made it clear even before the CCTV that his contact with the accused occurred quickly, immediately after he left the toilet. He said it was almost immediately that he reached his reasonable belief based upon the accused's demeanour, his appearance and his answer to the question whether he used drugs. His evidence was plausible. As in the case of R v Dam & Nguyen it is inherently unlikely that the police officer would have even approached the accused. He did not know him.
The accused is a somewhat complex person. I have no doubt that he genuinely believes that he was improperly stopped and searched. I do not find that he was deliberately telling untruths. It is a question of reliability. I have no doubt that he did appear, and would have appeared to any reasonable person to be affected. On his own evidence he said he had been on a bender the night before and that he had been rundown for some time. In fact, in his interview with the police subsequently at about line 79: 'I may have a drug problem at the moment, I'll deal with it. My family are trying to get me - take a break from work so I go to rehab so I bloody, you know, get cleaned up'.
Further at line 83: 'You know, I have been using too much. A vicious cycle'. That is what he said to the police immediately at the time when interviewed by Constable Crichton.
On his evidence, as I say, he had been on a bender the night before, had been rundown for some time. He used four tablets the night before, on his own account. He could easily have left the tablets in the vehicle, he did not. He admitted he intended to use some of it if he went to the later shows. I do not need to determine if he took one that night or not. It is a question of whether the officer looking at him could draw the reasonable conclusion that he appeared to be affected by drugs. I am satisfied that while the accused was certainly not untruthful at all, he had unwittingly reconstructed some of the events that night. I cannot really rely upon his evidence where it conflicts with Senior Constable Hardy on those important matters.
There is no doubt the event occurred quickly. Immediately after he exited the toilet, he walked past Mr Hardy and was called back immediately. The officer did speak with the accused before doing the search. That is confirmed by the film but it is also confirmed by the accused who admitted that the officer had asked him whether he had taken drugs. He gave a different answer to what the officer did but the fact of the matter is the conversation took place. As an aside it is also a rather odd thing to ask if the person presented normally, no problem at all, odd for him to have asked the question 'Are you affected by drugs’?
The accused had taken drugs, on his own account, the night before. He was in possession of drugs. He was tired and effectively rundown. In my opinion, it is more likely than not that that is what he did say to the police officer but, in any event, I do not need to draw any conclusion about that because his appearance was such as to give rise to that reasonable view, in my opinion, that he was affected by drugs. I accept that after the initial shock he did calm down.
At times the accused did engage in some, reconstruction and slight embellishment. He gave evidence of an occasion at about p.50 when talking about the police, he said he came out of the toilet and it appeared to be, in his words, 'The twilight zone. Police everywhere taking details of people'. He referred to an occasion apparently at the Britannia Hotel, dozens of police being there effectively dragging people out of a pokie room. I am not being critical but he genuinely believes he had been treated badly.
The evidence of Mr Hardy is crucial to all of this. He had never met the accused before. He did not know him from a bar of soap. It is not one of those cases where someone has heard someone has some drug offending history, heard whispers and decides to ‘shake down the person’. Mr Hardy said he had experience assessing whether people have had drugs. He believed the accused did have drugs and had something to hide. In R v Rogers (2011) SASC 40 Duggan J faced similar circumstances. He had to consider the experience of police officer as to demeanour. If the demeanour was suggestive of drugs being used or taken, his Honour found it was a sufficient basis for concluding there was a reasonable suspicion. In that case the reasonable suspicion was also based on information given to him by police officers interstate. As it turned out, the information was wrong.
His Honour said: 'Notwithstanding that question, the question remains whether the officer gave a reasonable basis as to a reasonable suspicion based upon the material. In my opinion, his assessment of the demeanour of the accused was sufficient to constitute reasonable suspicion'.
That is consistent with what has been said by the Court of Criminal Appeal in Gibson v Ellis (1992) when King CJ pointed out: 'The fact of the apparent intoxication of a driver would be sufficient or the appearance of it would be sufficient to justify an inspection'. That case was confirmed more recently by the Court of Criminal Appeal in The Queen v Marafioti (2014) SACFC 8. The question of discretion was discussed in a number of cases where similar matters have arisen. See Ireland v The Queen 126 CLR 321 and Bunning v Cross, supra.
In my opinion, the police officer did have reasonable cause to suspect the accused because of his observations on that occasion. They were enough to sustain a reasonable suspicion that the accused had in his possession a controlled drug, even without the answer about having consumed a drug.
Accordingly, I don't need to turn my mind to the question whether to exercise my discretion to exclude the evidence in the event that it had been an unlawful search. I have already noted R v Rogers, Duggan J said that ‘even if I found matters upon which the police officers rely in forming a suspicion did not provide grounds for a reasonable suspicion I would not have exercised my discretion to exclude the evidence of the search. The officers' actions in that case, as I found here, were not of a wilful or malicious nature and the evidence was of considerable probative value in relation to the charge’.
Now, in those circumstances I conclude that the evidence which was obtained following the physical search of the accused by the police is admissible. I find that the police officer did have the necessary reasonable suspicion to form that view.
There is however one issue which I now consider, and that involves the mobile phone.
This matter has caused me a great deal of difficulty. Mr Weir submitted from the time the police formed the reasonable suspicion and obtained the other material, that is to say the drugs, the pipe, the other items, and the money, then the police, at that stage, had more than sufficient material to charge the accused with the offence of trafficking in a controlled drug. They had the 21 tablets and also the $800 in cash.
What then followed was the question of the mobile phone. The accused was not warned that he did not need to give the PIN number. He was not given the usual warning required at that stage to his rights, that he could remain silent. In my view, he ought to have been told at that time there was no need to say anything, and he was not required, to furnish the PIN number.
That failure led to what may be said to be some inculpatory evidence. It was suggested from the bar table that the police, having seized the phone could not extract information from it without the PIN. There is no evidence to that effect. I ignore it. In my opinion at that time, that is before they had access to the phone, the police had sufficient to charge him with the more serious offence and, therefore, ought to have given him the warning.
Now, there must obviously a degree of leeway given to the police in those circumstances. The police might have formed the view at the time 'We have got the money and the drugs, all we might have charged him with is one of simple possession'.
Ultimately it depends upon whether the police were in the investigative stage.
In the case of Michaelis v The Police Martin J dealt with a situation somewhat similar situation. At para.15 of his reasons he said: 'It is submitted that the conversation between the applicant and the police officer should not have been admitted into evidence, given that the police officer had reasonable cause to believe the applicant was in possession of stolen property at the time McManus attended at the premises. It was said that McManus, holding that suspicion, had to caution the applicant immediately and identify the specific offence that he was then investigating’.
In that particular case, however, there had been a series of discussions between the police officer and the accused. In fact, the accused was being more than helpful in every respect. The police officer gave evidence that he did not consider the applicant was a suspect. He insisted there was no obligation upon him when telling the applicant of his intention to search to advise the applicant he did not have to answer any questions and he maintained that.
Counsel for the applicant in that case had argued that because the police officer did have reasonable cause to believe that the applicant was in possession of stolen material, it was incumbent upon him then and there to caution the applicant in the usual way and referred to the case of R v Dolan (1992) 58 SASR 501. The court in that case said, however, that there was no need for the caution to be given because of the unusual nature of the charge, where there was an onus of proof on the accused. Martin J said:
The charge of unlawful possession was dealt with under s 71 of the Summary Offences Act, that had a reverse onus, the accused had to prove things under that section.
Martin J then said: 'At the outset of the events at the applicant's premises the police were conducting an investigation. The investigation had not reached a point where there would be a charge. He was endeavouring to ascertain the facts. The investigation had not passed from an investigatory stage to an accusatory stage as in the case of Denis v The Queen. The court concluded there was no evidence the applicant was treated unfairly. The applicant displayed a good knowledge of his rights. In any event, he went out of his way to give the police all the assistance they wanted. Because of that his Honour concluded that there was no failure to give the appropriate warning’.
In that case of Denis, the question again involved a delayed caution. The facts are, very similar. It involved two police officers attending at the Arkaba Hotel at Fullarton. The police officers went outside with the accused, who had $195 in cash and 14 white capsules containing methamphetamine. The defendant voluntarily answered the police officers questions. He admitted that the tablets were ecstasy. He explained that he had received the tablets from a man called Michael at a gym and he agreed to accompany the police officers back to Adelaide. It was not until they left the Arkaba Hotel that the decision to arrest the appellant was taken. He was then given his rights not to answer.
At the trial objection was taken to the admission of all of the statements made by the appellant about the drugs, how he got them, where he had got them. It was said he was induced to make a confession to the police by being told certain things. There was a voir dire. The judge was asked to exercise his discretion to excuse the evidence on the grounds he was treated unfairly.
The court in that case said in relation to Dolan, the test is whether the police had sufficient evidence to found a reasonable suspicion that the suspect had committed the offence with which they are investigating. At that point the investigation passes from being at the investigatory to the accusatory stage and questioning the suspect beyond that point is designed to strengthen the evidentiary charge. It held that it could not reasonably and fairly be said that the police officers had reached a stage, at that stage, more than an investigatory stage.
King CJ said that before the accusatory stage began it was necessary for the police to make further inquiries. However, by the time there was discussion about the tablets and where the money had come from, the police had sufficient evidence that he had engaged in selling and had sufficient evidence to justify an arrest. The caution was then required.
His Honour concluded that in the event, however, notwithstanding the fact that no caution was given, the discretion ought to be exercised to enable the evidence to be tendered because the police had not acted unfairly at all, and in that case the accused had been more than happy to give the information.
Particularly important in that case was that the accused did not say that had he been given the caution that he might not have answered the police questions. In the circumstances, the court held there was no unfairness to the appellant in the admission he made to the police.
It is a difficult line to draw between the investigative and accusatory stages. In my opinion, however, in the subject case the investigatory stage had ended by the time the drugs and cash were produced. In those circumstances the police officers ought to have given the appropriate warning and the arrest rights to the accused. In contrast to the findings in Denis v R the accused in the subject case made it clear that he was not happy to answer police questions.
The reason I am able to draw that conclusion is that from the moment he was interviewed he wanted to speak to his solicitor and felt unhappy before speaking to the solicitor. Immediately after he spoke to the solicitor he refused to give any information or make any further comment at all. In my opinion, had he been given the appropriate warning he would not have given the police the PIN number.
There remains the discretion as to whether I still allow the evidence taken from the mobile phone to be admitted, or whether I should prevent any further material that might have been discovered after the telephone was searched.
In my opinion, in the proper exercise of my discretion, the evidence which has been obtained from the mobile phone must be excluded. I order that it must not be led by the prosecution on this case.
I do not, however, exclude any further evidence that might have been obtained subsequently from the motor vehicle or from the house so far as there is any such evidence. As it transpired the DPP had already conceded that it would not lead any such evidence from the house and vehicle search.