R v Dam & Nguyen (No 3) - [2016] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAM & NGUYEN (NO 3)
[2016] SADC 116
Reasons for Ruling of His Honour Judge Barrett
24 March 2016
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 quanity of cash. Application to exclude both searches.
Held: Following answers given by the Court of Criminal Appeal to questions posed in a Case Stated and hearing further evidence and submissions, the fruits of both searches are admitted into evidence.
R v Dam and Nguyen [2015] SADC 84; R v Dam and Nguyen: Case Stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131; Application for Reservation of Questions of Law (No 1) [2006] SASC 65, considered.

R v DAM & NGUYEN (NO 3)
[2016] SADC 116

This is a voir dire to determine the admissibility of evidence of drugs found by police on the male accused Tuan Dam and money found at the house of both accused. I set out the background to the application to exclude the evidence.
First voir dire
In a Ruling published on 3 June 2015[1] I granted the application to exclude the impugned evidence. I will shortly return to the circumstances of that decision. Upon delivery of the ruling the prosecution asked me to state a case to the Court of Criminal Appeal. I did so.
[1] [2015] SADC 84.
Case Stated
On 17 September 2015, the CCA held that I erred in excluding the evidence (R v Dam & Nguyen; Case Stated on Questions of Law (No 2 of 2015).[2] The matter was referred back to this court for trial in accordance with the answers given to the questions reserved. No one submitted that I should not continue to hear the matter. I will return to the appeal decision shortly.
[2] [2015] SASCFC 131.
Background
I take the liberty of reproducing the first 20 paragraphs of my ruling delivered in June of 2015:
1.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.
2.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
3The 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).
4Police 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
5The 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
6On 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.
7In 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.
8On 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
9On 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.
10Graham 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.
11Tuan 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.
12Graham 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.
13Graham 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: $5000.
(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)
14Graham 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;
15Exercising those powers, Graham asked the accused for his personal particulars including his name, address, date of birth, occupation and the ownership of the van.[3] 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.
16In 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.)
17Graham 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.
18Senior 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.
19Graham said that having had that conversation with the accused he started forming the suspicion that he might have interrupted a drug transaction.[4] 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.
20Following 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.
[3]    T16.
[4]    T20.
Further voir dire hearings on 4 and 14 December 2015
On 4 December 2015, Constable Graham gave further evidence. On 14 December Mr Dam gave evidence. He had not given evidence on the original voir dire.
Ms Powell QC submits that the further evidence of Graham discloses information not given before the questions were reserved for the consideration of the Court of Criminal Appeal. For convenience I number them.
1.Graham went on to ask questions of the accused which went beyond his personal particulars.
2.Graham gave no warning or caution to the accused that he was going to ask those further questions.
3.Graham knew the limits of his powers to ask for personal particulars.
4.Graham did not form his suspicions about the accused’s involvement in drugs until he asked the further questions.
The communications log recorded the enquiry of the accused as a “traffic related incident”.
I do not agree that the information in paragraphs 1 and 2 is new. Both those pieces of information were known to the Court of Criminal Appeal.
I do not think the information in paragraph 5 is relevant. How Graham characterised the exercise in a log book cannot affect the legality of the exercise.
I return to paragraphs 3 and 4. I think the Court of Criminal Appeal has implicitly rejected the significance of these pieces of information albeit that they were not explicitly before it. The court has held that the officer was entitled to ask all the questions he put to the accused irrespective of whether he knew that he had no statutory right to do so. Graham would not be able to do anything to mislead the accused but the court found that Graham had not done anything to mislead him. If there was nothing unlawful or improper about Graham’s questioning, as the court found, then it does not matter that Graham did not form the requisite suspicion until he had finished all his questions.
I turn to the evidence of the accused. The accused said that he had been asked by a man called Trung, whom he knew “from Sydney”, to pick up a person, who was unknown to him, from Hawker Street and give her a lift to the Arndale Shopping Centre. He said he was looking for a job, by which I take him to mean looking for a specific tiling job rather than seeking employment generally. He said he was going to buy some tiling glue. He said he did not notice Yen was pregnant. He had never seen her before.
The accused said that as soon as Graham stopped in front of his van and started talking to him, he felt he was not free to go. He felt that he was obliged to answer Graham’s questions.
I add that Dam is a man of Vietnamese descent who required the services of an interpreter while giving his evidence. I accept as a fact that the accused did not feel that he was free to leave after Graham pulled up in front of him. I also accept that he felt obliged to answer Graham’s questions. I think his ethnic origin, his unfamiliarity with English and possibly his own consciousness of guilt made him feel obliged to cooperate with Graham.
I reproduce the four questions I reserved for consideration by the Court of Criminal Appeal and the four answers given.
The questions reserved were as follows:
Q1. Was I correct to rule that section 40V of the Road Traffic Act 1961 did not give the police officer the power to ask the defendant about his personal particulars?
AThe 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.
Q2. Alternatively, was I correct to rule that section 74AB of the Summary Offences Act 1953 did not give the police officer the power to ask the defendant about his personal particulars?
AThe 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.
Q3. If I was correct about s 40V and s 74AB then in light of my finding that Tuan Dam must have felt obligated to answer the questions asked by the police officer was I correct to rule that the police officer required a specific statutory power to approach the van and ask those questions?
AThe 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.
Q4. Was I correct to rule that the police officer’s suspicion was not reasonable in light of the circumstances as he knew them?
ANo.
Effect of the Court of Criminal Appeal decision

The answers to questions 1 and 2 make it clear that Graham was entitled to ask, and the accused was required to answer, questions about personal particulars.
The answer to question 3 means that Graham was entitled to ask the further questions about the use of the van and the purpose of the journey. The Court of Criminal Appeal has held that Graham was so entitled, even if, as I have now found, the accused felt obliged to answer those questions. At [26] Vanstone J found that Graham had not misled the accused, by which I take the court to mean that Graham had not misled the accused about his being entitled to ask the questions, nor had he misled the accused into thinking that he was obliged to answer the questions. In other words, the accused’s feeling obliged to answer was not the result of any misleading or improper conduct on Graham’s part.
The answer to question 4 means that Graham’s grounds for suspicion which led him to detain the accused pursuant to the Controlled Substances Act for the purpose of searching him were reasonable. Vanstone J listed eleven grounds for the suspicion.[5] She added that nine of those grounds were particularly telling.
[5] [35].
Further submissions
Ms Powell made two further submissions. The first is that the Court of Criminal Appeal did not have before it the transcript of the evidence of the first voir dire nor the exhibits from that hearing. It had only the Case Stated. Of course it also had the submissions of counsel. I do not see any relevant omission in the materials before the Court of Criminal Appeal.
Ms Powell referred to the Full Court decision in Application for Reservation of Questions of Law (No 1) of [2006] SASC 65 where at [16], the court observed that it would be “exceedingly rare” that the appellate court would “proffer advice on the manner in which the trial judge’s discretion should be exercised on an evidential issue”.
I do not understand the Court of Criminal Appeal in this case to be directing me to exercise my discretion in a particular way. I have however attempted to identify the answers given by the Court of Criminal Appeal which do bind me. With those answers in mind I have had regard to the further evidence and submissions that I have heard. I will exercise the discretion bearing in mind the Court of Criminal Appeal’s decision and the new material.
Conclusion
I find that the search of the accused by Graham was lawful. The questions asked by Graham were lawful and untainted by impropriety. That is so notwithstanding that I accept that the accused felt obliged to answer. Having completed his questions, Graham had reasonable grounds to suspect that the accused was in the process of committing a drug offence. Graham’s detention of the accused for the purposes of searching him was lawful. The search of the accused and the van was lawful. The fruits of the search are admissible as evidence and there is no discretionary reason to exclude the evidence.
The finding of drugs on the person of the accused gave Graham reasonable grounds for searching the home of both accused. The fruits of that search are admissible and there is no reason to exclude the evidence uncovered in that search.
I dismiss the applications to exclude the evidence of both searches.