R v De Ieso - [2016] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DE IESO
[2016] SADC 43
Ruling of Her Honour Judge McIntyre
21 April 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused has applied under Rule 49 of the District Court Criminal Rules for orders that the Prosecution not be permitted to lead evidence relating to the search of a vehicle and residence on the basis that the searches were unlawful.
Held: Application dismissed
District Court Criminal Rules R49; Controlled Substances Act 1984 s52, S52(6), referred to.
Queen v Nguyen (2013) 117 SASR 432 at 437; Bunning v Cross (1978) 141 CLR 74 , considered.

R v DE IESO
[2016] SADC 43
Introduction

The accused has applied under Rule 49 of the District Court Criminal Rules for orders that the prosecution not be permitted to lead evidence relating to the search of his vehicle and his residence on 14 December 2012 on the basis that the searches were unlawful.
The only evidence called on the voir dire was from Detective Brevet Sergeant Michael Elliott.
The defence argument in summary is that Detective Elliott did not have a reasonable suspicion for the purposes of s.52 of the Controlled Substance Act 1984 (“the Act”) to enable him to lawfully carry out the search of the accused’s vehicle. The prosecution concedes that if the search of the vehicle is unlawful then the subsequent search of the accused’s residence ought to be excluded.
Evidence
Detective Elliott is an experienced police officer of some 20 years service. He has been a detective for about 15 years and a member of the Serious and Organised Crime Branch for 7 years. He is the holder of a general search warrant. He has been involved in 20 – 30 drug investigations. He is the investigating officer for this matter.
Detective Elliot said that he was involved in a police operation called ‘Operation Dream’ which commenced in 2011. Its purpose was to disrupt and dismantle organised crime relating to drug activity. He was part of a team of 5 or 6 officers. The accused was not initially a person of interest in Operation Dream.
Detective Elliott indicated that one person who became of interest in the early stages of that operation was Cosimo Alvaro. Detective Elliott said that he received an intelligence report from Crime Stoppers information in September 2012 which relevantly indicated that Cosimo Alvaro was trafficking cannabis “with a guy called Tony De Ieso, multiple pounds of cannabis weekly.” This was the first information that Detective Elliott received about the accused. Shortly after that intelligence report was received, but also in September 2012, he received information from the Human Source Management section naming Mr De Ieso. Detective Elliot said he did not know who the source of the information was but it was a registered human source. That information was as follows:
Tony De Ieso has been involved in the drug trade for the past 15 years. He is involved in the manufacture and supply of amphetamines and delivers large quantities of drugs on a weekly basis.
A telephone intercept warrant was obtained in respect of a telephone number associated with Cosimo Alvaro as part of Operation Dream. This commenced from 9 November 2012. Detective Elliott explained how the police would listen to the telephone intercepts on a daily basis. He said that he probably listened to 90% of the intercepted calls on Alvaro’s telephone up to 14 December 2012. A number of calls took place between Mr Alvaro and the accused. Detective Elliot estimated that about 15 – 20% of the total number of intercepted calls were between the pair of them. Detective Elliot said that he considered a number of calls to be different to the run-of-the-mill calls that he heard between Alvaro and the accused. Those calls were extracted and put on a disc that was tendered as exhibit VDP1.
Three calls were played from VDP1. Detective Elliott said that by the time he heard the third of those calls, call 2648, he formed the view that the accused was in possession of drugs that he had been trying to deliver to Glenelg. When he commenced duty in the early hours of Friday 14 December 2012 Detective Elliot reviewed his notes and checked calls that had been monitored overnight. Nothing changed his suspicion that the accused was in possession of drugs. He therefore ensured that surveillance was placed on the accused’s home address with an intention to stop him in his car in the process of delivering drugs to Glenelg.
There was a briefing at 7.20 am on 14 December 2012. Detective Elliot was subsequently informed that the accused had left his premises. The accused went via Auto Perfection a business in Enfield, picked up his daughter and then was travelling along Fitzroy Terrace. Detective Elliott’s suspicion was that the accused was heading towards Glenelg. He and Detective Sheedy were following the surveillance vehicle. When an opportunity arose they pulled the accused over on Fitzroy Terrace.
Detective Elliot told the accused to stop his engine, take the keys out and step outside the car. He informed him he was going to search the vehicle for drugs. In a box in a centre console of the car police located roughly ounce quantities of crystal paste in three separate containers. When subsequently analysed this was found to contain methylamphetamine with a total mixed weight of 70.17 grams. Also located was a bum bag containing a wallet containing items in the accused’s name together with $1,750 cash in $50 denominations in two rubber banded bundles.
Detective Elliott communicated the results of the search of the vehicle to other police who subsequently searched the accused’s house and located roughly an ounce of similar orange crystalline paste to that located in the car. Again this was subsequently analysed and found to contain methylamphetamine with a total mixed weight of 26.89 grams.
Detective Elliott says that he searched the vehicle under s.52 of the Controlled Substances Act on the basis that he had a reasonable suspicion that the vehicle was carrying drugs or illicit substances. He said that his reasonable suspicion was based on a combination of the September intelligence reports that implicated De Ieso and Alvaro in illicit drug related activities and the telephone calls that he had listened to. The combination of that information caused him to consider that Alvaro and the accused were involved in a drug transaction and that there were drugs present in the accused’s car on 14 December 2012.
Defence Submissions
Defence say that Detective Elliott did not have sufficient information or material before him to form the reasonable belief or reasonable suspicion that authorised him to search the accused’s vehicle under s.52. It is put that as of early September 2012 Detective Elliot had no information about the accused. He was investigating Mr Alvaro who he believed was involved in the drug trade. He then received information from an anonymous source at Crime Stoppers indicating that Alvaro and the accused were trafficking drugs together. Detective Elliot then received further information from an unknown human source. Again this implicated the accused and Alvaro in drug trafficking. Detective Elliott knew that the accused had no prior drug convictions and he conceded in cross examination that the accused was very lucky not to have been arrested if he had been trafficking in drugs for 15 years as asserted in the Human Source information. It is said that the September 2012 information was anonymous, vague and unsatisfactory and did little more than bring the accused to the attention of Detective Elliot for the first time and link the accused with Alvaro who was a person the Detective had no doubt was involved in the drug trade.
A large number of calls passed between the accused and Mr Alvaro. Only three of these were said by Detective Elliot to confirm the suspicion arising from the information received back in September that the accused was involved in drugs. Defence counsel submits that at time of the search, 14 December 2012, Detective Elliot knew that the accused and Alvaro were friends, that the accused had no prior convictions for drug trafficking, that Alvaro was a real estate agent and that the accused operated an office within the real estate agency. He did not know at that point what sort of business the accused was in. It is said that the content of the calls were consistent with a conversation about a real-estate transaction and that the connection to drugs was tenuous at best. It is said that the information was not enough to warrant the invasion of the accused’s civil liberties by pulling his car over and searching it. It is contended that the search was based on Detective Elliot’s knowledge that the accused was an associate of Alvaro and that Alvaro was a drug dealer. Defence therefore submits that Detective Elliot did not have sufficient material to form a reasonable basis for suspecting that the accused had drugs in the vehicle at the time his vehicle was searched.
Discussion
Both counsel referred to the Court of Criminal Appeal decision in The Queen v Nguyen[1] where it is said:
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. New curiosity, speculation or “idle wondering” about the existence of the fact is not the same as suspicion that it exists.
Importantly, s.56(6) and s.52(9) of the Controlled Substances Act 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 Controlled Substances Act 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. 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 of much of its utility, to demand material which supports the positive belief in the existence of the relevant facts (citations omitted)
[1] (2013) 117 SASR 432 at 437
It is therefore important to consider the material before Detective Elliott at the time he formed the suspicion. There are two pieces of information received by him in September 2012; both from sources that were unknown to him. The first piece of information referred not just to a drug association of the accused but also an association of the accused with Alvaro. Detective Elliott knew that there was an ongoing drug investigation into Alvaro. On their face the two pieces of information came from different sources. They could be the same person or the same source but, given the difference in content and nature and the fact that they were received in different ways around the same time, I consider it reasonable to conclude, as did Detective Elliott, that they were separate pieces of information which tended to corroborate the information that the accused was involved in drugs at around September 2012 and in an ongoing way.
Detective Elliott then had the opportunity to hear a large number of telephone communications between the accused and Alvaro. Those calls connected the accused with Alvaro. A large number of those calls were, in Detective Elliott’s view, innocuous however the three conversations that were played in court stood out as being entirely different in a number of respects. Detective Elliott said there were a number of incongruous or suspicious aspects to those three calls.
The first is that everything is referred to as ‘he’ or ‘them’ being one party and ‘she’ and ‘a lady’ as the other party. His evidence was there was no prior context as to who those people might be, nor any similar references to people in previous calls. He said that if this was indeed a real estate transaction he would have expected that the parties to it would be made clearer. This method of referring to people also appeared incongruous to him in the light of prior calls.
Second there was clearly a transaction or some sort of business arrangement referred to in the three calls. None of the previous calls had contained such a transaction. He formed the view that the transaction was being discussed in some sort of code. He described the conversations as cagey and inconsistent. He said the conversations did not flow naturally like most conversations between the accused and Alvaro flowed. Certainly listening to the calls; these particular discussions do sound different to the other aspects of the conversation in the same calls. The words appear to have been picked carefully and I accept the view of Detective Elliott they appear to be halting and to be avoiding specifics.
Third he said that the conversations appeared to be internally inconsistent; at one stage referring to a ‘sale’ and then changing to a ‘rental’; at another there was reference to a ‘house’ which changed to a ‘shop’ in the same conversation. Detective Elliot said that he found the description of the transaction to be inconsistent. I similarly formed that view.
Fourth, Detective Elliott said that the three calls did not fit with professional property transaction. I accept this assessment. It was not clear whether they were talking about a sale or a rental. When the conversation referred to rental the references are to obtaining part of the rent or part of the bond money to be paid to unnamed other parties rather than the proper authorities. Further these payments were apparently to be encouraged to take place before the contract had been signed. It simply does not make sense as a property transaction.
Another area which Detective Elliott identified as raising his suspicion was that there appeared to be an unusual concern on the part of Alvaro for the accused. This was not something he had noted in previous calls. Certainly Alvaro asks a number of questions after the accused’s welfare in the three calls which take place over a short space of time. These operated to Detective Elliott’s mind to suggest that Alvaro and the accused were nervous about police detection.
Detective Elliott did not act upon the intelligence material that he received in September 2012 notwithstanding he said he believed that intelligence to be reliable. His assessment of its reliability was based on his previous experience of such information, the fact that the information relating to Alvaro coincided with other information that he possessed and that it came from two apparently different sources. Plainly this material was not sufficient of itself to found a reasonable suspicion. It was the combination of that intelligence together with the calls that led to his suspicion; indeed it led Detective Elliot to a positive hypothesis that the accused was delivering drugs to Glenelg and was likely to be in possession of drugs at the time his vehicle was stopped.
I have carefully considered the evidence and in particular the phone messages in the light of the submissions, the purpose of the search power under the Act and the abrogation of civil liberties that such a search entails. I do not think that the material upon which the suspicion was based was unreliable or flimsy and I further do not consider that Detective Elliot undertook a process of reasoning based on tenuous connections. I consider that the information taken as a whole suggested that it was more likely than not that the accused and Alvaro were involved in a drug transaction and that Detective Elliott formed a reasonable suspicion sufficient to give him the right to search the accused’s vehicle under s.52(6) of the Act. This has with it the corollary that the search of the house, based as it was upon the suspicion formed by Detective Elliott and the fruits of the search of the vehicle, was also a lawful search.
The Bunning v Cross[2] discretion does not arise as I have found that the evidence obtained in the searches was not obtained by unlawful or improper means.
[2] (1978) 141 CLR 74
Accordingly I dismiss the Rule 49 application.