R v Dam & Nguyen

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.