R v Dam & Nguyen

Case [2015] SASCFC 131

Supreme Court of South Australia

(Court of Criminal Appeal)

R v DAM & NGUYEN;  CASE STATED ON QUESTIONS OF LAW (NO 2 OF 2015)

[2015] SASCFC 131

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

17 September 2015

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

A judge of the District Court ruled that evidence obtained from a search of the appellant and the motor vehicle he was in should be excluded in the exercise of his discretion.  The judge reserved questions for the Full Court going to the correctness of his decision and in particular:

- the entitlement of a police officer to ask questions of a person in charge of a motor vehicle with a view to establishing his personal particulars;

- whether such a person is obliged to answer such questions;

- whether the suspicion formed by the police officer after questioning the occupants was a reasonable one.

Held (Vanstone J, Kelly J and David AJ agreeing): 

A police officer is entitled to ask another person questions - he does not need statutory authority to do so.

Section 40V(2)(a) Road Traffic Act 1961 (SA) entitles a police officer who suspects on reasonable grounds that a person may be a responsible person (as defined) to direct that person to provide his personal details - the police officer's purpose need not be related to road transport but the power must be used for legitimate policing of the law.

Section 74AB Summary Offences Act entitles a police officer to ask a person questions for the purpose of identifying a person who was driving, or who owned, a motor vehicle at a particular time - the police officer's purpose need not be related to road transport but the power must be used for legitimate policing of the law.

The suspicion of the police officer that he might have interrupted a drug transaction was reasonable - no occasion arose to exclude evidence of the ensuing searches.

Criminal Law Consolidation Act 1935 (SA) s 350(1); Road Traffic Act 1961 (SA) s 5A, s 38, s 40V, s 42; Summary Offences Act 1953 (SA) s 74A, s 74AB, s 79A; Controlled Substances Act 1984 (SA) s 50(6), s 50(9), s 52; Motor Vehicles Act 1921 (SA) s 22, s 23; Statutes Amendment (Road Traffic Compliance and Enforcement) Act 2006 (No 13 of 2006) (SA), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Dam & Nguyen [2015] SADC 84; Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) SASR 10; R v Prinse (1998) 196 LSJS 267; R v Hooper (1998) 196 LSJS 267; George v Rockett (1990) 170 CLR 432; Hussien v Chong Fook Cam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v Nguyen (2013) 117 SASR 432, considered.

R v DAM & NGUYEN;  CASE STATED ON…

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R v Dam & Nguyen [2015] SASCFC 131
Case
[2015] SASCFC 131
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the Crown against a ruling by a trial judge to exclude evidence obtained from a police search. The Crown argued that the evidence, consisting of drugs and other items, should not have been excluded. The appeal was heard by Vanstone and Kelly JJ, and David AJ.

The central legal issues before the court were whether Senior Constable Graham's approach to the driver of a van, Mr Dam, was lawful, and whether he had the authority to require Mr Dam to provide his personal particulars and information about the van. Specifically, the court considered whether Graham needed reasonable suspicion of an offence to approach and question Mr Dam, and whether Mr Dam was unlawfully apprehended or required to provide information without proper statutory basis. The court also examined whether Mr Dam was misled as to his obligations and whether the subsequent search and seizure of evidence were lawful.

The court reasoned that a police officer is entitled to ask questions of any person without needing statutory authority or reasonable suspicion of an offence. While there is no obligation to answer such questions unless a statute requires it, Graham was empowered by s 40V(2)(a) of the RTA to direct a person he suspected on reasonable grounds of being a "responsible person" to provide their personal details. The court found that Mr Dam, as the driver of a vehicle parked at the roadside, clearly met this description. Furthermore, under s 74AB of the SOA, Mr Dam would have committed an offence had he failed to provide information that could lead to the identification of the driver and owner of the van. Consequently, the court concluded that Graham's actions were justified under the relevant legislation, and the trial judge erred in finding the search unlawful, meaning no discretion arose to exclude the evidence.

The court ordered that the ruling made by the trial judge to exclude the evidence be set aside and that the matter be referred back to the District Court for trial.

Orders

Orders of the court

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Background

Background to the litigation

As will be seen I consider that the conduct of the police officer was justified under either of the sections I mention and that no discretion arose to exclude the evidence revealed by the respective searches. Consequently, evidence of the drugs and other items found should not have been excluded.The facts and the judge’s findings The following facts are taken from the judge’s findings. During the morning of 20 February 2013 Senior Constable Graham went to the home of a Ms Yen and another at Bowden. Graham had attended the house on the day before and had located drug paraphernalia and some cannabis. He went on this day to deliver documents relating to the previous day’s findings. Ms Yen was present. She was heavily pregnant. Graham had information that Ms Yen was dealing in small quantities of methylamphetamine and heroin on a daily basis. She was also a heavy user of both substances. His information was that her supplier was an Asian male. Upon leaving, Graham, who was in uniform, drove his marked police car around the block. He then observed Ms Yen walking along a nearby street. He followed her for about four blocks, at a distance. He did so “out of curiosity”. When she arrived at Hawker Street, Bowden, Ms Yen got into the front passenger seat of a white Hyundai van, which was legally parked. Graham drove past the van and parked in front of it, partly in a “No Standing” zone and otherwise on the roadway. Because of the vehicle’s position Graham activated his flashing lights. Graham approached the driver’s side of the van. He saw a man in the driver’s seat (the accused Tuan Dam) who was unknown to him. He noticed a bar code on the window of the van, leading him to suspect that it was a hired vehicle. It bore Victorian plates. Graham’s purpose was to gather intelligence about Ms Yen’s associates. He thought this would be a good opportunity to identify a potential supplier of Ms Yen’s drugs and he intended to determine the driver’s identity. He did not suspect the commission of any offence as he approached the van. Graham asked the driver for his name and personal particulars and about the van. His inquiries were not directed to the regulation of road transport or drivers generally. He said in evidence he was proceeding pursuant to s 40V of the RTA. Dam gave Graham his particulars. He confirmed that the van was hired and said he was using it in the course of his work as a self-employed tiler. During the course of the conversation either Ms Yen or Dam volunteered that Dam had come to Bowden to collect Ms Yen and take her to the Arndale Shopping Centre. During this period Graham made a number of observations. He noted that Dam was a male of Asian appearance, that the van was clean despite the stated use of it, and that although he could see most of the rear interior no tools could be seen in it. In the rear Graham saw a bag which was marked as “Tiling Cement” showing a small tear. The tear was small enough for packaging a drug and had been re-sealed with adhesive tape. The two occupants appeared nervous. Ms Yen’s nervousness was in contrast to her presentation at her house and her presentation during Graham’s several earlier encounters with her. Graham thought it odd that, having ostensibly come from Pooraka to take the heavily pregnant Ms Yen to Arndale, Dam would meet her four blocks from her home.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider the judge erred in finding that the search was unlawful. In those circumstances no discretion to exclude the evidence arose.Conclusion For these reasons I would answer the questions reserved as follows.1.The police officer did not need statutory power merely to ask Dam for his personal particulars. However, under s 40V RTA the officer had power to direct Dam to provide his personal details. Therefore the answer is no.2.The police officer did not need statutory power to ask questions to obtain information leading to the identity of the driver and of the owner of the van. However, under s 74AB SOA Dam would have committed an offence had he failed to give that information. Therefore the answer is no.3.The evidence was not sufficient to support an inference that Dam must have felt obligated to answer Graham’s questions. In any event, in accordance with the answers to questions 1 and 2, no statutory power was needed to approach the parked van and ask the questions which were asked.4.No. The orders I would make are as follows:1.set aside the ruling made by the trial judge to exclude evidence of the search;2.direct that the matter be referred back to the District Court for trial in accordance with the answers given to the questions reserved. KELLY J: I agree with the reasons of Vanstone J and the answers and orders she proposes. DAVID AJ: I agree with the reasons of Vanstone J and the orders she proposes.

Ratio Decidendi

Legal Principle Established

Furthermore, Mr Anders argued that the approach to Dam was not based on a reasonable suspicion of any offence having been committed and, in the manner it was done, amounted to an “unlawful apprehension of Dam”, or at the least “an authorised approach”. Dam should have been given his rights in accordance with s 79A SOA. I note that this submission went beyond the facts found by the judge.Consideration The questions reserved require the restatement of some general principles, as well as an examination of the relevant statutory provisions. 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 any reasonable suspicion of an offence, to do so. I repeat what I said in Police v Moukachar (2010) 107 SASR 450 at 453:[13]A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A and 74AB of the SOA and s 96(1) Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.The judge quoted this paragraph in his reasons, but sought to distinguish that principle by reason of the fact that, there, police had pulled over the defendant’s car after a traffic infringement. That is so, but, with respect to the judge, it is not to the point. That fact merely gave rise to the occasion for asking questions as to the defendant’s identity and his ability to prove his identity. The judge went on to discuss the inference he drew that Dam must have felt as if he had to answer. Dam did not give evidence to that effect and to that extent the assertion is speculative. But even if he had so felt, that would not make the questioning unlawful. Graham neither said nor did anything to mislead Dam. In Bain v Police (2011) 112 SASR 10 at 13 White J said:[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 obligations in relation to such powers. Conduct of that kind would be reprehensible and may give rise to an occasion for the exercise of the Bunning v Cross discretion.There was no misleading here nor, contrary to Mr Anders’ suggestion, was Dam apprehended. There is no basis for that submission in the facts. In any event, as will be seen, I consider Graham was not only entitled to ask the questions, but was authorised by statute to require answers. Section 40V(2)(a) (RTA) entitles a police officer who suspects on reasonable grounds that a person may be a responsible person, as defined, to direct that person to provide his personal details. A person sitting in the driver’s seat of a vehicle parked at the roadside is plainly a responsible person.