R v Dam & Nguyen
[2015] SADC 84
•3 June 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAM & NGUYEN
[2015] SADC 84
Reasons for Ruling of His Honour Judge Barrett
3 June 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The male accused was stopped and questioned by police after a suspected drug user and dealer got into the passenger seat of his stationary van. No suspicion attached to the accused or his vehicle before he was asked for his personal particulars. While he was being questioned the police officer formed a suspicion he might be in possession of drugs. He searched the accused and located some drugs. Having searched the accused police searched the house he shared with the female accused. They located drugs, paraphernalia of sale and a large quantity of cash. Application to exclude both searches.
Held: The police officer had no power to question or search the accused. The search was unlawful. The fruits of the search should be excluded in the exercise of the judicial discretion. That exclusion tainted the search of the house, the fruits of which are also excluded.
Controlled Substances Act 1984 s 52(6), s 52(9); Road Traffic Act 1961 s 40V; Summary Offences Act s 74A, s 74AB, referred to.
The Queen v Romeo (1982) 30 SASR 243; George v Rockett (1990) 170 CLR 115; Police v Moukachar (2010) 107 SASR 450; Bain v The Police (2011) 112 SASR 10; R v Rogers (2011) 109 SASR 307; Coleman v Zanker (1992) 58 SASR 7; R v Chapman (2001) 79 SASR 342; R v Armstrong (1989) 53 SASR 25; R v Nguyen [2013] SASCFC 91; R v Davidson (1991) 54 SASR 580; R v Nugyen [2015] SASCFC 7; The Queen v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51, considered.
R v DAM & NGUYEN
[2015] SADC 84
This is a voir dire to determine an application to have excluded evidence of alleged drug possession by the two accused leading to an inference that they were trafficking in drugs. They are both charged with trafficking.
On 27 May 2015, I granted an application for the trial of the accused to be heard by a judge alone, but both counsel for the prosecution and the defendants ask me first to conduct a voir dire to determine the exclusion application. I do so.
The charges
The male accused, Tuan Dam, is charged on his own account with two counts of trafficking in a controlled drug – count 1, methylamphetamine and count 2, heroin. The offences are alleged to have occurred at Bowden. Police searched Tuan Dam at the side of Hawker Street in Bowden and found in one of his shoes several small packages of drugs – 4.96 grams of material containing methylamphetamine (count 1) and 3.4 grams of material containing heroin (count 2).
Police then searched a house at Royal Avenue, Pooraka occupied by both accused and their child. At the house the police found in a drawer in a bedroom seven bags of crystals containing methylamphetamine. The crystals weighed 11.73 grams. Both accused are charged with trafficking in a controlled drug, namely methylamphetamine (count 3). Police also located three bundles of cash totalling $212,660 which is the subject of count 4, unlawful possession. Both accused are charged with that offence. Police also found paraphernalia of sale viz scales, multiple mobile phones and plastic bags.
The applications
The accused seek to have excluded the evidence of the search of the male accused at Bowden and the search of the house at Royal Avenue, Pooraka. The submission by the accused is that the search of Tuan Dam at Bowden was unlawful and that the evidence of that search should be excluded in the exercise of the judicial discretion. The fruits of the search of the house are said to be tainted by the unlawfulness of the search of Tuan Dam.
Background
On 20 February 2013 Tuan Dam came to be searched in Bowden because a police officer noticed a woman, Mey Lin Yen, whom he believed to be a drug user and minor trafficker, get into a van the accused had parked in Hawker Street, Bowden. To determine the legality of that search, it is necessary to examine the police officer’s suspicions attaching to Ms Yen.
In February 2013, the officer who searched Tuan Dam, Senior Constable Alan Graham, was, and still is, part of a neighbourhood policing team based in the Bowden/Brompton/Ovingham areas. He had been based in that area for four months but had been engaged in neighbourhood policing in other areas between 2008 and 2010. In the course of his duties leading up to February 2013, Graham had received intelligence that Ms Yen was a drug user and was engaged in daily, lower level trafficking in methylamphetamine and heroin. He was led to believe her supplier was an Asian male.
On 19 February, the day before the search of the accused, Graham and another officer executed a Controlled Substances Act warrant at Ms Yen’s house in Eighth Street, Bowden. Ms Yen was living at that address with her partner CH. As a result of the search, police seized what Graham described as drug paraphernalia. Ms Yen was arrested for a non drug related matter. Some cannabis was also located in the house. As a result of the fruits of that search, the officers had to prepare and serve some documents on Ms Yen and her partner. The documents were a field receipt, a drug diversion document and a cannabis expiation notice. On 19 February, and on many earlier occasions, Graham said he had spoken to Ms Yen about her drug use. As at February 2013 Ms Yen was heavily pregnant.
Events of 20 February 2013
On 20 February Graham went to Ms Yen’s address on his own to deliver the documents arising from the previous day’s search. He was in uniform and in a police car. Ms Yen was at home. He handed her the documents. Having delivered the documents to Ms Yen in Eighth Street, Graham drove around the block as part of his community policing practice. Within minutes he saw Ms Yen walking along Gibson Street, Bowden. Gibson Street is around the corner from her house in Eighth Street. Gibson Street runs north/south. Ms Yen was heading north along Gibson Street towards Hawker Street. She walked along Gibson Street from Eighth Street, past Ninth, Tenth and Eleventh Streets to Hawker Street and then turned left.
Graham said that he was surprised to see Ms Yen in Gibson Street so soon after delivering the documents to her at her house in Eighth Street. Because she was someone he was “targeting” in the area he decided to follow her. He slowed his car to a walking pace and stayed behind her while she walked to Hawker Street. As she got to the Gibson Street/Hawker Street intersection she turned left into Hawker Street. When Graham got to that same intersection he looked to the left and saw Ms Yen get into the passenger side of a van parked in Hawker Street, some two hundred metres west of the intersection. He drove along Hawker Street and parked in front of the van. The van had not moved off as he drove along Hawker Street and its engine was not running when he got out of his police car. He had pulled his police car up in a no standing zone which partly obstructed vehicular traffic coming along Hawker Street. He said that because of that he put on his police warning lights as he got out of the car. He walked straight to the driver’s side of the van. Tuan Dam was in the driver’s seat.
Tuan Dam was completely unknown to Graham. He did not know who he was when he approached the van and he did not know anything about him when he established his identity. It is accepted that Mr Dam has no criminal convictions. As he approached the van Graham noticed that it had a bar code displayed in the driver’s side window which indicated to him that the van might be a hired vehicle. Graham made no mention of that observation raising a suspicion. I note in other decisions I have read, that police have noticed that drug traffickers often use hired vehicles to minimise detection. Graham made no mention of such a suspicion.
Graham acknowledged that no suspicion attached to the accused as he was approaching the van other than that the accused appeared to be the driver of a vehicle which had just been entered by a drug suspect. The accused is a man of Asian appearance, but Graham would not have noticed that until he stopped in front of the van. Graham said that he wanted to speak to the accused on the basis that he was in some way associated with Ms Yen. He wanted to investigate Ms Yen’s associates.
Graham says that he asked the accused questions exercising police powers pursuant to s 40V of the Road Traffic Act 1961. That section reads:
40V—Direction to give name and other personal details
In this section—
personal details, in relation to a person, means—
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person's business address.
Part 2—Administrative provisions
(2) If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a) is or may be a responsible person; or
(b) has committed or is committing or is about to commit an Australian road law offence; or
(c) may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or
(d) is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident, the officer may direct the person to give the officer then and there any or all of the person's personal details.
(3) If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
(4) A person commits an offence if—
(a) the person is subject to a direction under subsection (2) or (3); and
(b) the person—
(i) engages in conduct that results in a contravention of the direction; or
(ii) gives any detail that is false or misleading in a material particular in purported response to the direction; or
(iii) produces any evidence that is false or misleading in a material particular in purported response to the direction. Maximum penalty: $5 000.
(5) Subsection (4)(b)(iii) does not apply if the person has a reasonable excuse.
(6) In proceedings for an offence of contravening a direction under subsection (2) in relation to a failure to state a business address, it is a defence if the person charged establishes that—
(a) the person did not have a business address; or
(b) the person's business address was not connected (directly or indirectly) with road transport involving vehicles. (emphasis added)
Graham said that he believed he was empowered to ask the accused for his personal details because the accused was, or may be, “a responsible person” within the meaning of sub-s (2)(a). “Responsible person” is defined in s 5(1):
responsible person means a person having, at a relevant time, a role or responsibilities associated with road transport, and includes any of the following:
(a) an owner of a vehicle;
(b) a driver of a vehicle;
(c) an operator or registered operator of a vehicle;
(d) a person in charge or apparently in charge of a vehicle;
(e) a person in charge or apparently in charge of the garage address of a vehicle;
(f) a person in charge of premises entered by an authorised officer under this Act;
(g) an owner or operator of a weighbridge, or weighing facility, used to weigh vehicles or an occupier of premises where such a weighbridge or weighing facility is located;
(h) a person who controls or directly influences the loading or operation of a vehicle;
(i) an agent, employer, employee, contractor or subcontractor of a person referred to in any of the preceding paragraphs of this definition;
Exercising those powers, Graham asked the accused for his personal particulars including his name, address, date of birth, occupation and the ownership of the van.[1] He asked the accused to produce his driver’s licence, which he did. There is no suggestion of any inconsistency between what the accused gave by way of details and what appeared in the driver’s licence. There is no suggestion that any police check revealed any criminality on the accused’s part. The accused was not “known to the police”. Graham knew nothing about him.
[1] T16.
In the course of answering Graham’s questions the accused said that he used the van for his job as a tiler and he had come to Bowden to collect Ms Yen to take her to the local shopping centre. (Graham was not sure whether the accused or Ms Yen, or both, said this.)
Graham said that as he was speaking to the accused he formed further suspicions based upon physical observations and mental observations. He made the following physical observations:
·The van appeared unusually clean for a work vehicle.
·One of the bags of powdered adhesive in the back of the van appeared to have a patched over tear in it, yet there was no loss of apparent volume in the bag.
·There were no work tools in the van.
·The accused and Ms Yen were visibly nervous while he was speaking to them. While he knew nothing of the accused’s normal demeanour, Ms Yen was not nervous when Graham was speaking to her minutes earlier at her house.
Senior Constable Graham made the following mental observation. He thought it was odd that the accused would meet the heavily pregnant Ms Yen so far from her house to give her a lift to the shops. She had had to walk more than four blocks to meet him at Hawker Street. In other words, his explanation for being there was suspicious.
Graham said that having had that conversation with the accused he started forming the suspicion that he might have interrupted a drug transaction.[2] The accused and Ms Yen were still in the van. Graham was on his own. He called on his radio for another officer to attend. It is not entirely clear whether he directed the accused and Ms Yen to get out of the van on to the footpath before, or after, the other officer arrived. At all events, it appears clear that their staying in the van and going to the footpath were at the express or implicit direction of the police. On the footpath Senior Constable Graham searched the male accused and Brevet Sergeant Sonia Giacommeli searched Ms Yen. Nothing was located on Ms Yen. However, Graham discovered several small bags of methylamphetamine and heroin in the accused’s shoes. The accused was arrested in Hawker Street.
[2] T20.
Following the arrest in Hawker Street the accused’s house at Pooraka was searched. Both accused were apparently the sole joint occupiers of the house with their small child. It is plain that the search of the house occurred because of the fruitful search of the first accused in Bowden.
Discussion
I turn first to the initial conversation between Senior Constable Graham and Mr Dam in Hawker Street, that is the questions the officer asked the accused about his personal particulars. The officer said that in asking those questions he relied upon what he understood to be his authority pursuant to s 40V of the Road Traffic Act. He says that no traffic or motor vehicle infringement, or suspected infringement, caused him to use that power. His purpose was drug related. He wanted to investigate Ms Yen’s associates.
I deal with the question of whether s 40V did in fact give the officer the power that he thought it did. The purpose of s 40V appears from its terms to relate to investigations into people involved in the commercial transportation of goods or people by road. There have been some minor amendments to s 40V between February 2013 and today, but those amendments are not material. The apparent purpose of the section remains the same. That section is to be contrasted with the repealed s 42 which gave police power to stop vehicles and to ask questions of drivers to ascertain the identity of a driver at a particular time. Section 42 was repealed in 2007 and was replicated in s 74AB of the Summary Offences Act 1953. Section 74AB is to be further contrasted with s 74A of the Summary Offences Act which provides police with a wider and different power to seek personal details of people whom they reasonably suspect of being involved in offending (past, present or future) and people who may be able to assist in the investigation of offences. Thus the three sections, ie s 40V of the Road Traffic Act and ss 74AB and 74A of the Summary Offences Act are each directed to different sorts of enquiries. The first is directed towards the regulation of road transport, the second is directed towards the regulation of drivers more generally and the third is directed towards people suspected of offending. It is really plain that Senior Constable Graham’s enquiries had nothing to do with the first two sorts of enquiries, that is, the enquiries that conferred powers under s 40V of the Road Traffic Act and s 74AB of the Summary Offences Act. Insofar as his enquiry relied upon those powers, they were unlawful.
The only power that might arguably be relevant is the power conferred by s 74A of the Summary Offences Act. I reproduce that section.
74A—Power to require statement of name and other personal details
(1) Where a police officer has reasonable cause to suspect—
(a) that a person has committed, is committing, or is about to commit, an offence; or
(b) that a person may be able to assist in the investigation of an offence or a suspected offence, the officer may require that person to state all or any of the person's personal details.
(2) Where a police officer has reasonable cause to suspect that a personal detail as stated in response to a requirement under subsection (1) is false, the officer may require the person making the statement to produce evidence of the correctness of the personal detail as stated.
(3) A person who—
(a) refuses or fails, without reasonable excuse, to comply with a requirement under subsection (1) or (2); or
(b) in response to a requirement under subsection (1) or (2)—
(i) states a personal detail that is false; or
(ii) produces false evidence of a personal detail, is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
(4) A police officer who has required a person to state all or any of the person's personal details under this section is required to comply with a request to identify himself or herself, by—
(a) producing his or her police identification; or
(b) stating orally or in writing his or her surname, rank and identification number.
(5) In this section—
personal details, in relation to a person, means—
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is living; and22.12.2013—Summary Offences Act 1953 Police powers of entry, search etc—Part 15 [1.4.2015] This version is not published under the Legislation Revision and Publication Act 2002 9
(d) the address of where the person usually lives; and
(e) the person's business address; and
(f) if the police officer has reasonable cause to suspect that a person has committed, is committing, or is about to commit a sexual offence involving a child or children—the name and address of any place where that person works (whether as an employee, an independent contractor, a volunteer or in any other capacity).
I mention these other powers possessed by police officers because it would be relevant to the lawfulness of the officer’s actions, and possibly the discretion to exclude the evidence, if the officer did in fact have the relevant power to ask questions but mistook the source of that power. In The Queen v Romeo[3] Cox J said this:
... If the detectives in this case correctly believed that the law authorised them to act as they did that morning, and if in an objective sense they were right about that, I do not think in principle that their acts would be invalidated merely because they had a wrong view about the proper source of their legal authority.
[3] (1982) 30 SASR 243 at 277.
I turn then to consider whether Senior Constable Graham might have had power to ask his questions pursuant to s 74A of the Summary Offences Act even though he did not purport to rely on that power. The relevant sub-section is sub-s (1). That confers power on a police officer to require a person to state his personal details if the officer has reasonable cause to suspect that the person has committed, is committing or is about to commit an offence, or that person may be able to assist in the investigation of an offence or suspected offence.
In George v Rockett[4] the High Court quoted with approval the explanation of what amounts to a suspicion adumbrated by Lord Devlin in Hussien v Chong Fook Cam as follows:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect, but I cannot prove’.
[4] (1990) 170 CLR 104 at 115.
The High Court went on to draw a further distinction between suspicion and belief in these terms:
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be show.[5]
[5] See [18].
The test of the adequacy of the suspicion which must be entertained by the questioning officer is that it be reasonable, that is, objectively reasonable
In my view the facts known by Senior Constable Graham when he stopped his car in front of the van, and asked the accused his personal particulars, were not sufficient to found a reasonable suspicion that the accused had committed, was committing or was about to commit an offence, or even that he might be able to assist in the investigation of an offence or suspected offence. It is true that someone known by him to be a drug offender had got into the passenger seat of the van of the accused, but without more, that, in my view, is not sufficient to found a reasonable suspicion about the accused.
I do not overlook the observation made by Vanstone J in Police v Moukachar[6] where her Honour said that a police officer does not need a power to ask anyone any questions. Her Honour said:
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of sections 74A, 74AB 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.
[6] (2010) 107 SASR 450 at [13].
However, in that case the police officer did have a traffic related reason to stop the accused in his car. Likewise in other cases where traffic enquiries have led to drug searches, there has been a legitimate traffic infringement giving rise to the initial questions.[7] In this case the accused had committed no traffic or motor vehicle infringements. In addition, it has to be said, that even if he might have had no obligation to answer the police officer’s questions, in the circumstances of this case, he must have felt as if he did have to answer. The police officer was in uniform, he had pulled up his marked police car in front of the van and he had turned on his police warning lights.
[7] See Bain v The Police (2011) 112 SASR 10, R v Rogers (2011) 109 SASR 307.
On a number of occasions the Supreme Court has had occasion to criticise the practice of police approaching people for the purpose of “turning them over”.[8] In the light of these authorities, and on the facts of this case, I find that Senior Constable Graham had no legal authority to ask the accused for his personal particulars. He was mistaken in thinking that he had such a power pursuant to s 40V of the Road Traffic Act and I find that he did not have power under either ss 74AB or 74A of the Summary Offences Act. The questioning was unlawful. Senior Constable Graham conceded that he did not begin to form a suspicion about the accused’s drug involvement until after he began speaking to him. In the circumstances that I have found them to be, that suspicion did not begin to arise until the unlawful questioning had begun. In those circumstances the unlawfulness of the questioning tainted the formation of the suspicion.
[8] See Coleman v Zanker (1992) 58 SASR 7, R v Chapman (2001) 79 SASR 342 and R v Armstrong (1989) 53 SASR 25.
However, if I am wrong about that, I consider the question of whether the suspicion he came to form was a reasonable one authorising a search of the accused pursuant to s 52(6) of the Controlled Substances Act. That sub-section provides:
(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 this Act.
For the purpose of discussing relevant cases I also reproduce sub-s (9) which deals with the searching of the vehicle.
(9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b) detain and search the vehicle, vessel or aircraft; and
(c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
The Court of Criminal Appeal has in recent times considered the meaning of the reasonable suspicion which gives rise to the powers to search pursuant to s 52(6) and (9). In R v Nguyen[9] (the first Nguyen case) the court considered the meaning of “reasonable suspicion”. The court said:
[20] Before explaining why we would hold that the information available to the police, as summarised, is insufficient to support a reasonable suspicion that there was evidence of drug offending in the Laser when it was detained, it is necessary to say briefly something about the concept of a “reasonable suspicion”.
[21] 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 rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.[10]
[22] Importantly, s 52(6) and s 52(9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise.[11] It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[9] [2013] SASCFC 91 at [23] (11 September 2013) and (2013) 117 SASR 432.
[10] Bain v Police (2011) 121 SASR 10, [28]-[29]; R v Rogers (2011) 109 SASR 307, [22].
[11] R v Davidson (1991) 54 SASR 580, 584.
In R v Nguyen[12] (the second Nguyen case) the court reiterated those principles.
[12] [2015] SASCFC 7.
Although the facts of those two cases are different from the present case, and it is usually not productive to compare the facts of different cases, I think it can be said that the facts supporting the suspicions under consideration in those two cases would appear to have been more compelling than in the present case.
In the first case police had intelligence that drug dealing was occurring at a particular home unit. A month earlier police had executed a Controlled Substances Act warrant on the unit and searched it. No drugs were found. The accused was in the property and was arrested on outstanding warrants. Ten days later a Laser car had been stopped and drugs were found on the driver. The driver was not the accused. The home unit was searched on that same day and this time drugs were found. The Laser was registered in the name of one of the occupants of the home unit, but not the accused. On the day of the alleged offending police were keeping the home unit under surveillance. The Laser pulled into the common driveway of a unit. Police blocked the car from moving and approached the accused in the driver’s seat. They saw him put his hand down the side of the seat. Police searched the accused and the car. They found drugs in the car and some $2,000 and an ice pipe on the accused. Police could not see who the driver was when they blocked the car in. The only suspicion at that time attached to the car on the basis of the earlier observations that had been made of it. The only observation of a direct connection between the car and drugs was the single occasion when a different driver had been in possession of drugs in that car. The court held that those facts were an insufficient basis for a reasonable suspicion giving rise to the power to detain and search pursuant to s 52(9).
In the second Nguyen case two police officers noticed a Commodore car pulling out of an address in Ottaway. One police officer had been at a search of the house some two and a half years earlier where some minor drug infringements had been detected. That officer had heard from other police that the house was thought to be a “drug address”. The other officer in the two person patrol had at some unspecified early time searched the Commodore and found drugs in it. Neither officer knew anything about the driver. The court held that these facts were insufficient to make out a reasonable suspicion attaching to either the accused (for a personal search) or the car (for a vehicle search).
Returning to the facts of this case, Senior Constable Graham says his suspicion about the accused was formed during the conversation with the accused while the accused was still in the van. These were the bases for that suspicion:
Ms Yen had got into the van with him.
The accused said he was a tiler but his van was too clean for a work van, and from the driver’s side window, there did not appear to be any work tools in the van.
There was a tear in one of the bags of tiling cement.
It was suspicious that the accused was claiming to be giving Ms Yen a lift to the shops when he had met her over four blocks from her house.
Both the accused and Ms Yen appeared nervous.
In my view these facts are not sufficient to found a reasonable suspicion that the accused had drugs in his possession. I say that bearing in mind that the above facts have to be considered together. One can relatively easily discount the second and third and fifth facts taken alone. Some trades people do keep their vehicles clean. The tools might have been behind the front seats out of sight from the officer at the driver’s window or they might have been left somewhere else on that particular day. Bags of cement do sometimes tear. People can be nervous when stopped and questioned by police.
On the other hand the accused’s knowledge of Ms Yen might raise the suspicion of an alert, sceptical police officer, as might the accused’s explanation that he was giving her a lift to the shops. Notwithstanding the cumulative effect of these facts, I find that they are insufficient to found the requisite suspicion. Even if I am wrong about the unlawfulness of the initial conversation tainting the suspicion, I find that the search of the accused was unlawful.
Discretion
The lawfulness of the search will not necessarily lead to the exclusion of the evidence of the fruits of the search. Despite the insufficiency of the bases for the suspicion formed by Senior Constable Graham, his suspicions were vindicated. The accused was in possession of drugs, both on his person and at his house. In addition there was found at the house paraphernalia of sale and a very large amount of cash. The accused must demonstrate that competing public interest considerations fall in favour of the exclusion of the evidence. The accused must demonstrate that the judicial discretion to exclude the evidence must be exercised.
On the one hand there is the considerable public interest in the detection of serious criminal offences such as those for which both accused are charged. The illegality of the search does not, in this case, damage the cogency of the evidence that the drugs or other exhibits discovered.
On the other hand the public also has a considerable interest in police officers complying with the law. By overlooking unlawful conduct by investigators, and admitting illegally obtained evidence, the courts give, or at the very least, appear to give, their approval to such conduct. It should not be overlooked that the courts usually never hear of unlawful investigations which uncover no criminal activity. The innocent citizens who have been unlawfully stopped, questioned and searched have no redress. If the courts then overlook such illegality when criminal activity is discovered, the laws carefully designed to protect peoples’ civil liberties have become a dead letter. These are the competing public interest considerations identified by the High Court in The Queen v Ireland[13] and Bunning v Cross.[14]In the second Nguyen case the Supreme Court expressly relied upon those High Court cases when considering whether the weighing up of the competing public policy considerations favoured the discretion to exclude the unlawfully obtained evidence.[15]
[13] (1970) 126 CLR 321
[14] (1978) 141 CLR 54.
[15] See [34] – [35].
The Supreme Court applied the principles discussed in those cases in the first Nguyen case.[16]
[16] See [37] – [42].
There are other competing considerations arising from those cases. The question of whether the legality of the search is a deliberate “cutting of corners”[17] should be considered. Is this an isolated mistaken view of police powers by an individual police officer on a single occasion, or is it an example of a wider misuse of police powers? The evidence in this case points in the latter direction. Senior Constable Graham said that he had relied on s 40V of the Road Traffic Act many times for drug investigations and that senior colleagues had used it too.[18] Where there is a widespread erroneous practice it is appropriate for the court to discourage such conduct by the exclusory judicial discretion.[19]
[17] Bunning v Cross at [40].
[18] T39-40 and T60.
[19] R v Chapman (2001) 79 SASR 342 per Williams J at [35].
In R v Rockford[20] Stanley J said of evidence obtained in excess of police powers.
The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[20] [2015] SASCFC 51 (22 April 2015)at [39].
In my view the factors favouring the exclusion of the evidence of the search of the accused by Senior Constable Graham outweigh the considerations to the contrary. I exercise the discretion to exclude the evidence of the fruits of the search of the accused.
It is agreed by the parties that if the evidence of the search of the accused is to be excluded then the evidence of the search at the house should be also excluded. I so order.
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