R v Dinsmor
[2018] SADC 17
•27 February 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
Question of Law Reserved RULE 49 APPLICATION
R v DINSMOR
[2018] SADC 17
Ruling of His Honour Judge Slattery
27 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Application pursuant to Rule 49 challenging the legality of a search of the accused's person and his vehicle by the police.
Held: Application dismissed.
Controlled Substances Act (1984) s 32(3); Controlled Substances Act (1984) s 52(6); Controlled Substances Act (1984) s 52(9), referred to.
Gibson v Ellis (1992) 59 SASR 420; R v Nguyen (2013) 117 SASR 432; Bain v Police [2011] SASC 228; R v Nguyen [2016] SASCFC 96, applied.
R v Marafioti [2014] SASCFC 8, discussed.
Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321, considered.
Question of Law Reserved RULE 49 APPLICATION
R v DINSMOR
[2018] SADC 17
On an information for arraignment on 15 December 2017, the accused is charged with two counts of trafficking in a controlled drug as follows:
First Count
Statement of Offence
Trafficking in a controlled drug. (Section 32(3) on the Controlled Substances Act, 1984).
Particulars of Offence
Russell Hamish Macpherson Dinsmor on the 12th day of July 2017 at Port Adelaide, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a controlled drug. (Ibid).
Particulars of Offence
Russell Hamish Macpherson Dinsmor on the 12th day of July 2017 at Port Adelaide, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
The accused has brought a Rule 49 application. He challenges the legality of the search of his person and his vehicle that led to the discovery of a very large amount (66.64 grams) of a mixed quality of methylamphetamine, $9,385 cash, multiple unused plastic resealable bags, glass ice pipes and digital scales.
The principal contentions of the prosecution are that as a result of the information Senior Constable Lee David Firth had in his possession, following the stopping of the accused’s vehicle, the physical observations of the accused both inside and outside of the vehicle that he was driving, and after speaking to the accused, he reasonably formed the suspicion that the accused had in his possession a substance or equipment that contravened the Controlled Substances Act (1984) (‘CSA’) or that he had in his vehicle a substance or equipment that would afford evidence of an offence against the CSA.
The principal contentions of the accused are that having regard to the same information, there was insufficient grounds for the police officer to reasonably suspect or form a reasonable suspicion that the accused had in his possession such offending substances or that such offending substances were in any vehicle driven by him. The accused also points to an inconsistency between the wording of the CSA and the statement of the witness, Senior Constable Firth. Those are matters to be resolved on the evidence and therefore it is necessary to have regard to the whole of the evidence before me.
The prosecution called in evidence the police officer who formed the suspicion and undertook the search of the person of the accused and the vehicle that he was driving. Senior Constable Firth made a declaration dated 25 August 2017. He gave his account of the events concerning the accused on the early morning of 12 July 2017. He was cross-examined and readily admitted that he had made an error in his statement which I set out hereunder. I accept that Senior Constable Firth did make such an error. He gave his evidence credibly, truthfully and reliably. I consider that his evidence was accurate and I accept his evidence generally.
The prosecution has filed written submissions which summarised the evidence of the police witness in his deposition. Senior Constable Firth gave oral evidence before me and insofar as there is a difference between that oral evidence and the content of the deposition, it is not material. I am content to draw upon the written submissions of the prosecution as I consider appropriate when describing the evidence in this matter.
At about 2.20am on Wednesday 12 July 2017, Senior Constable Firth and a Constable Legg were on uniformed mobile patrol travelling north on Port Road, Queenstown in a marked police vehicle, driven by Senior Constable Firth.
Senior Constable Firth’s attention was drawn to a vehicle in front of the police vehicle, which exited Webb Street, Queenstown into Port Road. The vehicle swerved around the corner at apparent speed and Senior Constable Firth observed the compression of the suspension on the vehicle.
As the police vehicle passed Webb Street, Senior Constable Firth looked down the street and observed a marked police vehicle about 50 metres west of their location in Webb Street. It was travelling in the opposite direction to that of the accused’s vehicle. Senior Constable Firth suspected that the vehicle exiting Webb Street was attempting to evade the attention of that other police vehicle.
The police vehicle commenced following the accused’s vehicle and noticed that it was travelling at approximately 70km/h in a 60km/h zone, which added to his suspicion that the vehicle was making off from the police. This was only an estimate of speed. The accused’s vehicle was 100 to 150 metres in front of the police vehicle and the police vehicle had to speed up to beyond 60 km/h to catch the accused’s vehicle. It was not possible in the minute or so that the police were following the accused’s vehicle to make a precise calculation of its speed. There was no expiation notice issued for speeding.
Senior Constable Firth accelerated to catch up with the accused’s vehicle, which was a silver Mitsubishi sedan (SA registration XAY 356). During that time, Constable Legg checked the registration of the vehicle; the registered owner was a female. The accused’s vehicle then made a sharp turn, braking quickly to a stop at the side of the road, about 50 metres south of the Portland Hotel on Commercial Road, Port Adelaide.
Senior Constable Firth stopped the police vehicle alongside the accused’s vehicle and observed the sole male occupant, who was seated in the driver’s seat, quickly lean into the rear of the vehicle in the direction of the area behind the front passenger seat. Senior Constable Firth observed the male occupant suddenly exit the vehicle and walk quickly away from it in a northerly direction, parallel to the hotel and without making eye contact with the police. The hotel was open. Senior Constable Firth did not see the accused move towards any particular door of the hotel.
Senior Constable Firth sounded the horn of the police vehicle to gain the accused’s attention. The accused turned around and slowly walked in Senior Constable Firth’s direction. It is very difficult to conceive of any possibility that the accused was unaware of the police vehicle. It was parked on Commercial Road parallel to the accused’s vehicle and some two to three metres away from it. It would be remarkable that the accused was unaware of that police vehicle, especially when it was parallel to and so close to his vehicle that he had stopped so abruptly; it was there and stationary when he exited the vehicle he was driving.
Senior Constable Firth had a conversation with the accused in relation to a driver’s licence check. When asked if he had his driver’s licence with him, the accused stated that he did not. When asked if he had other forms of identification, he removed his wallet from one of his front pockets. Senior Constable Firth observed that his wallet was ‘crammed’ with $50 notes, such that it could hardly be folded. Constable Legg conducted checks on the accused which revealed that he was unemployed. Later checks at the scene revealed that his driver’s licence had expired. Another of those checks made later revealed that the accused had previously given a positive oral fluid sample for methylamphetamine after his vehicle was stopped by a mobile patrol.
When questioned about the cash, the accused stated that it was the proceeds of work and that he had done a cash job. The accused said he was a chef. Senior Constable Firth suspected that this was not the case, and that the cash may have been obtained unlawfully. I consider that it is objectively implicitly unlikely that such a large wad of cash would have been derived from working as a chef. Its provenance is, ipso facto, quite suspicious. Usual or typical indicia of drug trading is possession by an accused of large amounts of cash, usually in bundles of $50 notes.
Whilst having a conversation with the accused, Senior Constable Firth observed that the accused was displaying a very suspicious demeanor – his hands were shaking heavily, his speech was mumbled, he was talking quickly and seemed on edge. He was sweating and somewhat evasive in conversation. Senior Constable Firth observed that the accused appeared to be under the influence of an illicit substance – his eyes were glazed and bloodshot, his pupils were constricted and he did not smell of alcohol. He was aware from his experience as a police officer that this is a typical indication of a person who has consumed drugs.
Given his observations of and conversation with the accused and the large amount of cash on the accused, all in combination, Senior Constable Firth formed a suspicion that the accused was in possession of a substance or equipment in contravention of the CSA. He then searched the accused’s person, where he located a USB drive, keys to the vehicle he was earlier observed to be driving and the wallet with cash in it.
After the search of the accused’s person, Senior Constable Firth formed the suspicion that the motor vehicle driven by the accused carried a substance or equipment that would afford evidence of an offence against the CSA in light of the absence of any contravening substances on his person. He then searched the vehicle that the accused was driving under the authority of s 52(9) of the CSA. At the time, Senior Constable Firth made the decision to search the vehicle, he took into account the whole of the matters about which he had become aware at the time that he decided to search the accused’s person. Of particular significance in respect of this decision and the formulation of his suspicion was the large amount of cash that he saw in the wallet of the accused as well as the fact that when the accused abruptly stopped his vehicle 50 metres or so south of the hotel, he immediately leaned back into the motor vehicle and was engaged in some activity behind the front passenger seat of that motor vehicle.
Before he commenced a search of the motor vehicle, Senior Constable Firth spoke to the accused and asked him if there were any drugs or anything sharp in the vehicle and the accused said that there was not; Senior Constable Firth then commenced the search at the driver’s side door where he located two glass ice pipes and a Samsung mobile phone.
After completing that part of the search, the accused then called out to Senior Constable Firth and advised him that there were drugs inside the vehicle. The accused said that those drugs were located under the front passenger seat which was, as observed by Senior Constable Firth, the area in which the accused had been engaged immediately upon bringing his motor vehicle to a halt.
Upon searching under that seat, Senior Constable Firth located a black toiletries bag which contained a large amount of crystalline substance which he suspected contained methylamphetamine. Within that bag were 11 small paper tabs which he suspected were tabs of LSD, a set of digital scales, two glass ice pipes and a large number of empty small plastic resealable bags. There were also a few other items of drug paraphernalia. He then searched the balance of the car and he found another large amount of crystalline substance in the centre console which he also suspected contained methylamphetamine. Senior Constable Firth then placed the accused under arrest.
The applicant accused seeks orders that evidence which was seized by police on 12 July 2017 be excluded from evidence in the trial. This application relies on the grounds that the search was unlawful in that police did not hold the requisite suspicion(s) to conduct a search of the accused and his motor vehicle pursuant to the provisions of the CSA.
Sections 52(6) and (9) of the CSA (1984) read as follows:
(6) An authorised officerwho is a police officer may search any person whom the officer reasonably suspects has in his or her possessionany substanceor equipment in contravention of this Act.
[…]
(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.
There is no suggestion that Senior Constable Firth was not ‘authorised’ for the purpose of these provisions.
The powers of search and seizure are intended to operate independently of the apprehension of a suspect and under circumstances in which a suspect is not necessarily arrested: See Gibson v Ellis (1992) 59 SASR 420 at 424.
The principal questions involved here are whether the officer held a reasonable suspicion that:
1the accused possessed; and/or
2his vehicle contained
any substance or equipment that would afford evidence of an offence in contravention of the CSA.
It is also necessary to establish the exact point at which a decision to conduct a search was made pursuant to the CSA. It was decided in R v Nguyen (2013) 117 SASR 432 at [24] that the critical time for the formation of the reasonable suspicion contemplated by ss 52(6) and (9) of the CSA is the time at which the police officer decides to carry out the search. I turn to those matters.
When approached and questioned by police, the accused acted in a manner consistent with being under the influence of illicit drugs. This served to amplify the observations already made by Senior Constable Firth during the earlier events, namely the accused’s speeding in the motor vehicle, the abrupt halting of his motor vehicle some 50 metres south of the hotel, the manner in which he quickly exited the vehicle and walked away and the discovery that the vehicle was owned by a female. These factors sit in the background of the formulation of the reasonable suspicion and so in the background of the basis for the search of the person of the accused. I consider that it is quite artificial to in some way suggest that those matters must be divorced from other matters relating directly to the observed behaviour of the accused. This is an unrealistic approach.
It was said at [22] in Nguyen that the facts 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. On one reading the latter aspect of that passage is a tautology having regard to the fact that the person referred to there is a reasonable bystander. The reasonable person must think reasonably, otherwise that person would not fit the description of the reasonable dispassionate bystander.
During cross-examination there was a challenge made to the evidence of Senior Constable Firth that the accused had or may have had in his possession or in the vehicle driven by him illicit substances in contravention of the CSA. This challenge derives from the wording of ss 52(6) and (9) of the CSA, and the content of the witness statement of Senior Constable Firth at page 4, paragraph 2. There he said:
I formed a reasonable suspicion given my observations, conversation and the large amount of cash that the Accused may be in possession of a substance or equipment in contravention of the Controlled Substances Act so I subsequently searched the accused under the authority of Section 52 of the Controlled Substances Act.
The challenge in cross-examination was that notwithstanding the requirements of the wording of the section, in his witness statement, Senior Constable Firth said that he formed a reasonable suspicion that the accused may be in possession of a substance or equipment (my emphasis).
Senior Constable Firth was cross-examined on the voir dire. He was asked whether he had a reasonable suspicion that the accused may have had a substance in his possession or had a substance in his possession.[1] He said that he had a suspicion that that accused had the substances in his possession.[2] He was then taken to his witness statement of 25 August 2017, page 4, paragraph 2 which I have set out in full above. He was asked whether what was said in the statement was an accurate representation of his belief at the time he searched the accused.[3] His answer was that there was an error in the way in which he had phrased the statement. He was then taken to his contemporaneous notes in which he said that he had a reasonable suspicion that the accused would be in possession of drugs or equipment, but he did not say that in his deposition.[4] He also confirmed in evidence that he became aware from information that he saw on the screen in the police vehicle that a search had been done of the accused’s offender history and that there were one and possibly two records of the accused having been apprehended on drug driving charges.[5]
[1] T25.30.
[2] T26.21.
[3] T28.8.
[4] T29.13.
[5] T31.21.
He was then asked what the basis for his decision to search the vehicle was.[6] Senior Constable Firth said that his observations of the accused, the cash that he saw, the conversation associated with the cash, the stopping of the vehicle, the leaning back into the vehicle and the apparent activity that followed which was suspicious, and the speed with which the accused was trying to disassociate himself from the vehicle was the basis upon which he formed the suspicion that there was drugs or equipment in the vehicle in contravention of the CSA.[7] Senior Constable Firth said that the expression ‘may’ in page 4, paragraph 2 of his statement was a mistake of phrasing.[8] He disagreed that that was the basis upon which he had formed his suspicion. It was an infelicitous expression.
[6] T31.27.
[7] T31.31.
[8] T33.1.
Having made observations of him in the witness box, I find that Senior Constable Firth was an accurate, reliable and credible witness. I have no hesitation in accepting his evidence that he had made an error in phrasing his statement. I accept that for ss 52(6) and (9) CSA at all material times, Senior Constable Firth reasonably formed a suspicion that the accused was in possession, on his person, of substances or equipment in contravention of the CSA and that, in his motor vehicle, there were substances or equipment in contravention of the CSA.
The ruling in Bain v Police [2011] SASC 228 at [29] provides that a reasonable suspicion may be based on a police officer’s observations, together with information the officer has learnt from other sources. The observations of Senior Constable Firth in relation to a search of the person extended to the accused’s erratic driving, his attempt to walk away from his vehicle, the search relating to the car’s ownership and the accused’s behavior, including in the motor vehicle after it was brought to an abrupt halt. Moreover, the observations in relation to the accused’s vehicle included the factors just stated and extended to seeing the large amount of cash in the accused’s wallet and the expired driver’s licence. Later there was information in relation to the offences that the accused had committed associated with drug use.
In R v Marafioti [2014] SASCFC 8 at [9], Kourakis CJ held that:
The presence of a person apparently intoxicated by an illicit substance in a motor vehicle is a reasonable basis on which to suspect that an illicit substance, or an instrument for its administration, will be found in the vehicle […] a suspicion is still a reasonable one even if there remains a possibility, or even a probability, that the thing suspected will not be discovered.
In that case, Kourakis CJ also said that a person’s anxiety in the presence of police or behavioural oddities or eccentricities should not be too quickly associated with illegality.[9] The behavior of the accused was not the defining feature of the officer’s suspicions. It certainly played a part in the formation of his suspicions and was a factor in his decision(s), however, it is my opinion that the behavior of the accused was merely one event in a series that led to the formation of reasonable suspicion. And events and circumstances do not exist and do not occur in definable steps. As in this case, they are very often connected in ways that are sometimes obvious and are sometimes subtle. That is the reason why the objective test is used in the legislation. It avoids the insertion into the reasoning process of closely held personal subjective views that are largely irrelevant. This explains also that the proper approach is to assess the whole of the evidence. In so doing, there will be a comprehension of the position of the reasonable bystander whose thought processes would likely range across a broad spectrum of facts as they present.
[9] R v Marafioti [2014] SASCFC 8, [12].
I agree with the prosecution’s submission that the factors which gave rise to Senior Constable Firth’s reasonable suspicion can be properly described as incidental in the course of legitimate patrolling duties. I also accept the prosecution’s submissions that he did not purport to operate under the authority of s 52 of the CSA before he was entitled to do so, nor did he act with improper or malicious purpose. This is so in relation to the search of both the accused’s person and his vehicle.
I also refer to the decision of the Court of Criminal Appeal of South Australia in R v Nguyen [2016] SASCFC 96. Doyle J, who gave the decision of the Court, pertinently said as follows:
The trial judge’s misstatement of the requisite reasonable suspicion
[56] The appellant complains that the trial judge misstated the suspicion required under ss 52(6) and (9) of the Controlled Substances Act. The appellant relies upon the references in the final sentences of the trial judge’s reasoning in relation to each of the two searches (as extracted above) to Shepherdson’s reasonable suspicion that the appellant “may” have methylamphetamine in his possession, and to Cheek’s reasonable suspicion that methylamphetamine “might” be found in the vehicle.
[57] Strictly speaking, ss 52(6) and (9) require more than this. They require a reasonable suspicion that the appellant “has” (rather than “may have”) a substance in his possession, and a reasonable suspicion that a substance “is” (rather than “might be”) in the vehicle. However, in the circumstances of this case, I do not consider that this error on the part of the trial judge is of any consequence.
[58] First, when his Honour’s reasons are read as a whole, I am not satisfied that his Honour did proceed on the basis of a misunderstanding as to the relevant suspicions under ss 52(6) and (9). His Honour also referred in several places to the leading authorities in this Court as to the content and nature of the requisite suspicions. His Honour also referred in several places to the leading authorities in this Court as to the content and nature of the reasonable suspicions required. In my view, the references to “may” and “might” are slips rather than indicative of a misunderstanding on the part of the trial judge.
[59] Secondly, while accepting that there is a difference between a reasonable suspicion that someone has a substance in their possession and a reasonable suspicion that someone may have a substance in their possession, the difference is unlikely to be one of great practical significance. As a suspicion, by its very nature, connotes something less than established facts, it necessarily requires consideration of what may or might be the fact (citations omitted).
I am satisfied on the whole of the evidence that Senior Constable Firth had a reasonable cause to suspect, under both ss 52(6) and (9) of the CSA.
On the facts of this matter I find that the suspicion of Senior Constable Firth was sufficient to render lawful the decision to search the accused and then his vehicle pursuant to ss 52(6) and (9) of the CSA. For the reasons that he has explained in his evidence and which are set out above, there is nothing before me to suggest that the decisions to conduct either search were made at a time prior to him considering all of the relevant factors which led to his ultimate, reasonable suspicion being formed and the decision to search.
When assessed objectively, the whole of the conduct of the accused and the material identified by the police officer both upon and about the accused before he was personally searched and before the search of his vehicle would lead the reasonable bystander to suspect that he possessed substances or equipment in contravention of the CSA and that his vehicle would carry a substance or equipment that would afford evidence of an offence under the CSA.
If I am wrong about the lawfulness of the search I would exercise my discretion to admit the evidence notwithstanding the illegality. The reasons for that discretionary inclusion are these:
1The offence detected was serious, as evidenced by the maximum penalty.
2The search does not appear to be the result of a deliberate disregard by the police of restrictions on search powers.
3There was undoubted justification for the police stopping the accused’s car. He was driving erratically and in excess of the speed limit and appeared to be driving away from another police patrol vehicle. If, contrary to my finding, the accused’s behaviour following the apprehension by police actions were not sufficient to found the requisite reasonable suspicion, then his actions do not fall far short of so doing. His actions were no mere eccentricities or displays of anxiety, they were clear indications that he was under the influence of an illicit substance or substances. In other words the police action was a small departure from what was required.
4These reasons are recognised as relevant to the inclusory discretion in Bunning v Cross.[10]
[10] (1978) 141 CLR 54 at 78-80, per Stephen and Aiken JJ.
Furthermore, I acknowledge the public policy considerations outlined in R v Ireland (1970) 126 CLR 321 and have weighed the balance of public interest against the protection of the individual from unlawful and unfair treatment.
Finding
I decline to exclude the evidence procured as a result of the police officer’s search of the motor vehicle. The evidence will be admitted.
The Rule 49 application is dismissed.
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