R v Doyle
[2022] SADC 56
•6 May 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOYLE
[2022] SADC 56
Reasons for Decision of his Honour Judge Allen
6 May 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
POLICE - RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES
A parcel deposited with a private freight company for delivery to Roxby Downs was suspected by staff at the company as being suspect and containing drugs. Package opened by staff who subsequently called police to discuss suspected package and contents. Police subsequently attended and seized the safe which was found to contain a trafficable quantity of methylamphetamine.
Enquiries link parcel to applicant, whose residence and vehicle were searched as part of the investigation. A water bottle containing GHB was discovered by police secreted in engine bay.
Application brought to exclude evidence obtained from search of parcel and search of vehicle. Whether original search of parcel by civilians was unlawful. Whether police improperly conscripted civilians and whether evidence of drugs should be excluded in exercise of public policy discretion.
Whether evidence of drugs located in car should be excluded on basis of unlawful search.
HELD: Impugned searches lawful - no illegality or impropriety in search or parcel - public policy discretion not engaged, search of vehicle lawful - based on reasonable suspicion.
Controlled Substances Act 1984 (SA) ss 32(3), 52; Summary Offences Act 1953 (SA) ss 67, 68, referred to.
R v McHugh [2022] SASCA 5; R v Lobban (2000) 77 SASR 24; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Director of Public Prosecutions v Kaba (2014) 44 VR 526; Bae v The Queen; Koo v The Queen [2020] SASCFC 7; Police v Moukachar (2010) 107 SASR 450; R v Dam and Nguyen; Case Stated on Questions of Law (No 2 of 2015) (2015) 123 SASR 511; R v Armistead [2019] SASCFC 85; R v Colenso [2016] SASCFC 218; R v Nguyen (2013) 117 SASR 432; R v Rogers (2011) 109 SASR 307; R v Golja [2017] SASCFC 61; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177, considered.
R v DOYLE
[2022] SADC 56Introduction
The applicant is charged with two counts of Trafficking in a Controlled Drug. The first of those charges relates to a count of trafficking methylamphetamine and the second a count of trafficking in 1,4-Butanediol, or GHB.
The charges are contrary to s 32(3) of the Controlled Substances Act.
Summary of Allegations
At approximately 1:00 pm on 20 July 2020, a male (the applicant on the prosecution case) attended at BSH Transport Solutions (‘BSH’), Regency Park. The male left a cardboard box closed with duct tape with BSH staff. A request was made by the male for the box and its contents to be transported to Roxby Downs. The parcel was handed to Joshua Taubers, a forklift operator at BSH. Mr Taubers was immediately suspicious of the package. Mr Taubers thought that the box contained drugs. This view was based upon a combination of the following:
· The strong smell emanating from the box;
· The condition of the box;
· The duct tape used to close the box;
· The addressee of the consignment;
· The address of the consignment; and
· The appearance of the consignor.
The witness’s knowledge of the addressee and the consignment address was based on his evidence that he had previously resided in Roxby Downs for 20 years and had familiarity with the address and the addressee.
Mr Taubers took the box into his manager, Elaine Murphy and told Ms Murphy of his suspicions. Ms Murphy stated in her evidence that Mr Taubers told her that ‘a dodgy looking guy had just dropped off a dodgy looking parcel and he was now in the front office organising the freight and [Mr Taubers] believed the parcel was shonky’.[1]
[1] T7.29-32.
Ms Murphy stated she was 90% sure that she called her boss to seek direction before opening the parcel. She described removing the duct tape, lifting the lid and thereafter a very strong smell of mint emanated from the carton. Ms Murphy described removing the microwave from the box and saw a white towel rolled up with grey duct tape around it inside the microwave. Ms Murphy described then calling the police (call 1).
Police subsequently called back (call 2). During the course of call 2 between Ms Murphy and South Australia Police (Senior Constable Christine Nelsen (‘Nelsen’)), Ms Murphy removed the towel wrapped in duct tape from the microwave, cut the tape surrounding the towel thereby exposing its contents. The contents were a key safe which was locked. A strong odour of mint was apparent. Nelsen informed Ms Murphy that she would arrange for police to attend at BSH to conduct further enquiries.
I will return to the detail of the two telephone calls between Ms Murphy and SAPOL shortly.
Nelsen made arrangements for Detective Brevet Sergeant Ryan Flavel (‘Flavel’) to attend at BSH. Flavel arrived at the business at about 2:30 pm in company with his partner, Brevet Sergeant Liam Keelan (‘Keelan’). Upon arrival, Flavel spoke with Ms Murphy who explained the background to the matter and how the microwave and its contents came to be opened and exposed.
Having regard to that information, Flavel purported to exercise powers pursuant to a General Search Warrant (‘GSW’) issued to him. Before seizing the key safe and removing it from the premises, a passive alert drug detection dog was deployed by Senior Constable Whitehorn (‘Whitehorn’). The dog gave positive indications to the towel and key safe.
I pause here to note that the applicant does not challenge the lawfulness of Flavel’s actions. The defence argument is that by this stage, unlawful or unfair actions on the part of SAPOL had already reached a critical mass irretrievably compromising Flavel’s actions.
Having regard to the recent observations of the Court of Appeal in R v McHugh,[2] whilst it might have been that Flavel had determined to exercise the powers pursuant to the GSW prior to the additional information acquired as a consequence of Whitehorn’s dog, the powers were in fact exercised when the safe was seized and removed by Flavel.
[2] [2022] SASCA 5.
Flavel attended business premises adjacent to BSH and obtained footage of the vehicle driven by the man who deposited the parcel. The footage is Exhibit VDP9. It discloses footage of the grey Holden commodore station wagon subsequently searched by the police on 24 July 2020. Flavel gave evidence that the rear driver’s side window of the commodore had a distinctive sticker. The CCTV footage confirms this.
It was not in dispute that the vehicle in the CCTV footage was the vehicle subsequently searched by police.
The safe was opened the following day in the presence of Flavel with the assistance of a locksmith. Inside was a container containing 11.8 grams of a substance of which 5.99 grams was methylamphetamine.
On 24 July 2020, police determined to search an address at 37 Flockhart Avenue, Valley View, the home address of the applicant. It was also determined to search the grey Holden station wagon. The rationale for these subsequent searches was directly linked to the interception of the methylamphetamine at BSH. Enquiries performed by police linked the applicant to the intercepted package, to the address and to the Holden commodore.
When the Holden commodore was searched, the GHB subject to count 2, was located in the engine bay of the vehicle.
The Application
The applicant filed an Amended Rule 49 Application. The relevant contents of that Application are set out as follows:
1. That all evidence obtained as a result of the searches by police of the cardboard box and its contents on 20 July 2020, and subsequent searches of a motor vehicle SA registration S298AXM and premises at 37 Flockhart Avenue, Valley View on 24 July 2020 be excluded.
Grounds
1.1. SAPOL officer Senior Constable First Class Christine Nelsen’s directions to the BSH manager Elaine Murphy to open and search the carboard box and its contents were unlawful.
1.2. Senior Constable Nelsen had no power to search the carboard box and for that reason had no power to issue the above direction for the box to be searched.
1.3. The subsequent searches of the vehicle and premises were conducted relying upon the evidence obtained from the search of the cardboard box.
1.4. As such the subsequent searches were ‘fruits of the poison tree’.
1.5. The Court should exercise its discretion to exclude the evidence obtained from all searches.
2. In the alternative, that all evidence obtained as a result of the search by police of a motor vehicle SA registration S298AXM on 24 July 2020 be excluded.
Grounds
2.1. The search of the above vehicle conducted by SAPOL officer Brevet Sergeant Ulpen was unlawful.
2.2. Brevet Sergeant Ulpen did not hold the necessary suspicion required by section 68(1)(a) of the Summary Offences Act 1984 (sic).
2.3. The Court should exercise its discretion to exclude all evidence obtained from this search.
I deal with each of the orders sought as follows.
Ground 1 – The microwave box search
The best evidence of the calls between Ms Murphy and Nelson is Exhibit VDP8, the audio recording of the conversations themselves. These calls are relevantly extracted as follows:
Call 1 (1:43 pm Monday 20 July 2020)[3]
[3] EM: Elaine Murphy; JB: Jane Buscumb.
EMWe just received what we believe is a consignment of drugs to go to Roxby downs
JBOk so a (sic) are they in your truck now or at the depot
EMNo they are in my office sitting in a microwave on my desk
JBOh ok in a
EMYeah my shed hand thought it was suss so we walked in and opened it and it’s definitely suss
…
EMYes
JBWhat’s in there packages taped packages
EMNo well it does have a new microwave in it it’s very minty and it has something wrapped in towel inside the microwave which we haven’t touched
JBYep
…
EMWe’ve got the microwave out and opened that but we’ve haven’t touched the package
JBYep ok all good, alright, look um let me get patrols come and check that out and it’s our reference 1 3 6 5
…
Call 2 (1:54 pm Monday 20 July 2020)[4]
[4] EM: Elaine Murphy; CN: Senior Constable First Class Christine Nelsen; LB: Lisa Brooks; JT: Joshua Taubers.
CNThat’s good just calling about your microwave
EMYeah
CNYeah um so what does the object look
EMFeeling very very nervous
CNYou are
EMYeah
CNYeah why is that
EMBecause it’s sitting on my desk and this guy has been here and knows who we are and stuff like that
CNOh okay yep yep understand what you mean ok so can you describe this item that’s inside the microwave
EMit’s very very minty you can smell it
CNMinty smells minty
EMYeah you can smell it
CNOkay
EMIt’s a white towel wrapped up in duct tape
CNOkay alright and you not prepared (sic) to open it while I am on the phone
EMOh I can
CNYeah if you are happy to that (sic)
EMI just don’t want my fingerprints all over it
CNOh no that’s fine we can we can eliminate them that’s fine and
EMAlright we actually
CNAnd I’ll do it while we’re on the phone so that I can
EMYeah we have his phone and everything
CNOk no worries what was his name
EMEr yep I can find that out for you in 1 sec hang on
CNOk let’s do one thing at a time
EMLise I’m on the phone what was the name of that guy
LBJohn DOYLE
EMJohn DOYLE and what was the phone number
LBHope this is the one 0431 552 657
EMAlright thanks love and what did he say his address was
LBHe said he was at St Agnes when he rang this morning at 9 o’clock
EMOk
LBThe he rang back and was at GEPPS CROSS
EMYep alright
LBDid you want his licence plate number as well
EMHave we got it what did I say it was
LBS728 grey commodore station wagon
EMAlright thanks love
LBHave we … just rang did you say …
EMNo have they rang for a pick up
LBYes
EMAlright just do it
EMSorry about that
CNNo no that’s fine I’ve got everything except the rego
EMWe I only got the first bit I ran out the door as he was taking off
CNOh ok yep
EMI think it was S 7 2 8
CN7 2 8 okay no worries
EMI’m just cutting it open now
CNIf it’s a minty smell I don’t reckon it cannabis but (sic)
EMIt’s a very minty smell
CNYeah yeah
EMOh it’s something in a Master Lockbox
CNOh okay
EMA combination master lockbox
…
EMI’ll tell you how we picked it up
CNYeah
EMThe guys that works my yard hand used to do this shit
CNOkay
EMSo and he’s from Roxby Downs so he’s very aware of where the shady one’s are up there
CNOh righto
EMYeah and then when he saw the box the microwave box and it was duct taped up it rose it raised alarm bells
CNOkay yep
EMAnd he came and spoke to me and then said nah bring it in we’re opening it
CNYep yep
EMWe are always on the lookup and we’ve been warned before that there were people trying to do this
…
EMGa … G A T O R he thinks
CNG A T O R okay beautiful alright that’s given us heaps to go on so um okay we’ll someone in there to pick it as soon as we can Elaine because it’s pretty obvious there is something going on there
Summary of information conveyed through calls
In relation to call 1, it is apparent that the following information was conveyed to police by Ms Murphy:
1. That the employees of BSH had received a consignment of what they believed to be drugs to be transported to Roxby Downs;
2. That the drugs were sitting in a microwave on Ms Murphy’s desk;
3. That a yard hand thought it was ‘suss’, so they opened it and that it was definitely ‘suss’ that the microwave was inside a box which has been duct taped closed;
4. Cash was paid for the delivery;
5. The relevant object was wrapped up inside a towel inside a new microwave which had a very minty smell; and
6. That the microwave was out, opened and that the package inside had not been touched.
From the second call, the following information was conveyed to SAPOL:
1. That the item inside the microwave was very, very minty in terms of smell and consisted of a white towel wrapped up in duct tape;
2. The name of the consignor was John Doyle with phone number 0431 552 657;
3. That the consignor informed BSH that he was at St Agnes at 9:00 am that morning and rang a subsequent time and, at that time, he was at Gepps Cross;
4. They received a description of a car being driven by the consignor as a grey commodore station wagon with a partial number plate capture S728;
5. When the parcel was cut open, it revealed a Master Lockbox;
6. That the yard hand from BSH was from Roxby Downs and ‘so he’s very aware of where the shady ones are up there’;
7. That the package raised alarm bells with the yard hand;
8. That the staff at BSH were always on the lookout because they had been warned before that there were people trying to do this;
9. That Ms Murphy had the belief that there was something inside the lockbox because some effort had been gone to smear ‘greasy stuff’ on the lockbox itself; and
10. That the yard hand was of the very strong belief that the parcel contained ‘meth’.
Applicant’s Submissions
The applicant contends there were effectively three searches pertaining to the microwave and its contents:
1. The first search occurred when Ms Murphy opened the microwave box prior to calling the police;
2. The second search occurs when Ms Murphy is communicating with Nelsen via telephone; and
3. The third search, occurring when Flavel attends and seizes the box and its contents. It is not submitted that Flavel did not have the requisite suspicion in order to search and seize the key safe, but rather the opportunity for him to do so is rendered unlawful by virtue of the illegality of the first two searches.
The problem with the arguments advanced in relation to searches one and two is that the discretion to exclude unlawfully or improperly obtained evidence arises from the conduct of police, not civilians.
Discretionary exclusion
The Court of Appeal considered the bases for discretionary exclusion of evidence in R v Lobban,[5] where Martin J identified three distinct, although overlapping, discretions:
1. An overall discretion limited to confessional evidence (which does not apply to the present proceedings);
2. A public policy discretion not limited to confessional evidence, also known as the Bunning v Cross[6] discretion; and
3. A general unfairness discretion applicable to any evidence.
[5] (2000) 77 SASR 24.
[6] (1978) 141 CLR 54.
Martin J surveyed the history of the public policy discretion in detail and concluded:
… the discretion [is] enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities …[7]
[7] Ibid 34.
The rationale underlying and limits of the public policy discretion were considered in Question of Law Reserved (No 1 of 1998),[8] Doyle CJ (with whom Cox and Matteson JJ agreed) stated (at 287-288):
The nature and scope of the [public policy] discretion has been considered in some detail by the High Court in recent times. I refer to Ridgeway v The Queen; R v Swaffield and Nicholas v The Queen.
There is no doubt that, in the existence of that discretion, a court can exclude evidence other than confessional evidence.
It is equally clear, in my opinion, that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining curial advantage by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. When the court exercise the discretion, it declines to allow the prosecution to make sue of evidence obtained through illegality or impropriety, because to do so would allow it to benefit by its own wrongdoing, and would give the appearance of approving of the relevant illegality or impropriety. Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences. [my emphasis]
[8] (1998) 70 SASR 281.
In R v Lobban, Martin CJ made the following statement in relation to the operation of the public policy discretion:
In my opinion, however, the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being ‘demeaned’ by the use of the ‘fruits of illegality’ or being used ‘to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf’. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct.[9]
[my emphasis]
Enlistment of civilian assistance
[9] (2000) 77 SASR 24, 34.
In Director of Public Prosecutions v Kaba,[10] Bell J relevantly observed:
It is clear from the authorities that I have discussed that people are not immune from contact with police in public places. The ordinary power of police to ask questions is an important means by which they can fulfil their duty to prevent crime and protect the community. Up to a certain point, police questioning of individuals does not interfere with their rights and freedoms at common law. The line of permissible questioning is crossed when the questioning becomes coercive, that is, when the individual is made to feel that he or she cannot choose to cease co-operating or leave, judged by reference to how a reasonable person would feel in the circumstances.
[10] (2014) 44 VR 526, [459].
Police are entitled to co-opt the assistance of the public. In Kaba, Bell J stated:[11]
It is recognised that, in the performance of these duties and without reasonable grounds of suspicion, police might exercise their ordinary capacity to ask questions of and seek co-operation from persons in reliance upon every citizen’s ‘moral duty, or … social duty to assist the police’, to use the words of Lord Parker CJ in Rice. As was held in R v Grant by McLachlin CJ and Charron J, ‘[e]ffective law enforcement is highly dependent on the co-operation of members of the public. The police must be able to act in a manner that fosters this co-operation, not discourage it’.
Likewise, in R v Grafe, which was approved in Grant, it was held by Martin, Tarnopolsky and Krever JJA that the human rights in the Canadian Charter of Rights and Freedoms did ‘not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be’. So, at common law, it is not a deprivation of liberty for police to attract a person’s attention by touching him or her on the shoulder or arm. But it is a deprivation of liberty for police to grab someone by the arm; that could only be legitimate for the purposes of a lawful arrest.
It is not presumed that a person is coerced simply upon being questioned by a police officer in uniform. That is so even though, as was held by Robert Goff LJ and Mann J in Collins v Wilcock, the ‘advantage of authority’ enjoyed by police is deliberately enhanced by ‘the uniform which the state provides and requires’ them to wear. But, as Le Dain J explained in R v Therens:
Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.
Therefore, when drawing the line between the voluntary and the coerced, it is necessary to take into account the imbalance of power between police, especially when in uniform, and ordinary members of the community, as well as the psychological impact of apparent police authority. Barwick CJ adverted to this consideration in Bunning where he held that, ‘in deciding whether … willingness was uncoerced, it is proper to remember the apparent authority’ of police and the situation of the citizen.
[Citations omitted, my emphasis]
[11] Ibid [69]-[71].
In Bae v The Queen; Koo v The Queen,[12] Kelly J (Stanley and Parker JJ agreeing) observed:
In this state, it is not necessary to go further than this Court’s statements in Police v Moukachar,[13] R v Dam and Nguyen; Case Stated on Questions of Law (No 2 of 2015)[14] and R v Armistead.[15]
As Vanstone J observed in Moukachar, ‘a police officer is entitled to ask questions of an individual. He does not need statutory authority to do so’.[16]
[12] [2020] SASCFC 7, [87].
[13] (2010) 107 SASR 450.
[14] (2015) 123 SASR 511, [26], [33], [41], [43]-[44] (Vanstone J, Kelly J and David AJ agreeing).
[15] [2019] SASCFC 85, [89] (Hinton J, Kelly and Stanley JJ agreeing).
[16] Police v Moukachar (2010) 107 SASR 450, [13] (Vanstone J).
Kelly J went on to conclude that there was nothing unlawful or improper about the actions of the police and that, in the circumstances of that particular set of factual circumstances, the information possessed by police permitted the deployment of not dissimilar powers of search under s 52 of the Controlled Substances Act as those purported to be deployed under ss 67 and 68 of the Summary Offences Act that require ‘reasonable suspicion’ before the commencement of a search.
I respectfully adopt the observations of Bell J in Kaba and Kelly J in Bae & Koo as they relate to the interaction of civilian assistance with law enforcement. Absent evidence of unlawful, improper and/or unfair actions on the part of police to conscript the assistance of civilians to subvert or avoid the laws that exist to protect the rights of civilians against the excesses of executive power, then the curial power to act against such excesses is not engaged.
Consideration – Public Policy Discretion
Having regard to the evidence in this case, I am not persuaded that the public policy discretion is engaged. The evidence in this matter was not obtained unlawfully.
In the circumstances of this case, the first search is conducted by Ms Murphy completely independent of any police involvement. No discretion to exclude arises in relation to that aspect of the matter.
The applicant submits that the second search occurs as a consequence of Ms Murphy being ‘directed’ to conduct the further search by SAPOL, thereby effectively making her an agent of SAPOL. In those circumstances, it was argued that Ms Murphy, as the agent for SAPOL, did not have a reasonable suspicion based on the information at hand. The facts do not support this argument. When one listens to the phone call, it is apparent Ms Murphy is not subject to any ‘direction’ from SAPOL. If anything, the audio recording of the call discloses that Ms Murphy is a willing participant in what is occurring. There was no direction made to Ms Murphy. In these circumstances, the same findings and principles apply to the second search.
Consideration – General Unfairness Discretion
Although not specifically articulated in the Amended Rule 49 Application, the Written Submissions of the applicant appear to seek exclusion of the evidence pursuant to the general unfairness discretion.[17]
[17] Applicant’s Outline at [46]-[47].
In R v Lobban, Martin J noted that, while the public policy discretion should necessarily be confined to such circumstances outlined above, some circumstances which involve errors of law enforcement, while not meeting the criteria to enliven the public policy discretion, will be encompassed within the ambit of the general unfairness discretion. His Honour explained:[18]
… the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of "the rights and privileges of the accused", which rights "include procedural rights" (at 189 and 197). Both discretions look "to the risk that an accused may be improperly convicted" (at 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensucd, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (at 501):
"[A]s is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle."
[18] (2000) 77 SASR 24, 48-49.
Having found that the public policy discretion is not engaged, I similarly decline to exclude the impugned evidence in the exercise of the Court’s general discretion. The conduct of law enforcement officers in this case does not warrant the exclusion of the evidence. The admission of the evidence would not operate unfairly against the applicant. The discovery and seizure of the impugned evidence in this case is highly probative as to the commission of serious drug offending.
In this regard, and for the sake of completeness, the information received by police from the staff of BSH, whether after the first or second search, was more than sufficient to provide reasonable suspicion for the ultimate search and seizure of the lock box containing the methylamphetamine subject to count 1.
Reasonable suspicion
Whether a suspicion developed by police to conduct a search is reasonable is a question of fact. In R v Colenso,[19] Kourakis CJ (Nicholson, Hinton JJ agreeing) stated:[20]
Whether or not reasonable suspicion attaches to certain conduct or circumstances is a factual question. Decisions of this Court provide guidance on the standard to be applied. Only rarely will there be sufficient factual similarity between two different cases to allow a valid submission that the decision made in one case must determine the factual decision in another…
[19] [2016] SASCFC 218.
[20] Ibid [32].
The prosecution relies upon the suspicion of Flavel in order to prove that the statutory prerequisites for the deployment of the GSW held by Flavel pursuant to s 67 of the Summary Offences Act were met.
Section 67 of the Summary Offences Act relevantly states:
67—General search warrants
…
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
…
(c)the officer may seize any such goods or things to be dealt with according to law.
Having regard to the statutory prerequisites for the deployment of the powers attaching to a GSW, the prosecution must establish:
1. That the relevant officer (Flavel) had reasonable cause to suspect:
2. An offence has been recently committed, or is about to be committed; or
3. There is anything that may afford evidence as to the commission of an offence.
The concept of reasonable suspicion was the subject of consideration in R v Nguyen[21] where the Court (Kourakis CJ, Blue and Stanley JJ) stated:[22]
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.
Importantly, s 52(6) and (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. 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.
[References omitted]
[21] (2013) 117 SASR 432.
[22] Ibid [21]-[22].
In R v Rogers,[23] Duggan J confirmed that a suspicion may be based on a number of considerations, some of which are more significant than others.[24]
[23] (2011) 109 SASR 307.
[24] Ibid [25].
In the circumstances of this matter, Flavel’s state of mind progressed well beyond curiosity as to what might be in the key safe. The material relied upon by Flavel leading to the seizure and subsequent search of the key safe forms part of a working hypotheses where there is a rational connection between the supporting material and the suspicion.
The requisite state of mind required for the lawful exercise of powers pursuant to s 67 of the Summary Offences Act did exist. Consequently, the search was lawful. The fruits of that search do not fall to be excluded in the exercise of the Court’s discretion.
The key safe and contents were seized by Flavel utilising the powers conferred under his GSW under s 67 of the Summary Offences Act. There was no illegality or impropriety alleged on the part of Flavel in seizing the evidence. Where the evidence has been lawfully obtained and in the absence of improper or unfair conduct on the part of law enforcement authorities obtaining that evidence, the public policy discretion does not apply. That is the case here.
Ground 2 – The Search of vehicle S298AXM
Brevet Sergeant Ulpen (‘Ulpen’) gave evidence regarding his search of a grey Holden commodore station wagon registered S298AXM.
Ulpen was one of several officers to attend a briefing at Valley View prior to the search of the applicant’s residence at 37 Flockhart Avenue, Valley View. The officer’s notes indicate that the person of interest, John William Doyle of 37 Flockhart Avenue, Valley View, was involved in ‘traffic 20 grams of meth to Roxby’. The briefing provided a background regarding the circumstances of the lockbox being found by police at BSH. The vehicle is mentioned in the briefing. It was indicated at that time that the vehicle was also to be searched, that is in addition to the residence.
Subsequently, Ulpen observed the applicant in the custody of police in the front yard of the property. Detective Stirling (‘Stirling’) took a set of keys from a bag and provided them to Ulpen. At about 6:50 pm Ulpen was advised by Detective Stock (‘Stock’) that the car had been located on Nepal Street.
Ulpen went and met Stock at Nepal Street and handed him the keys. Stock used the keys to open the car and Ulpen proceeded to take photographs of the police search.
Ulpen stated that the search was conducted pursuant to s 68 of the Summary Offences Act. In addition to the information provided at the briefing, Ulpen believed that the applicant had parked the vehicle on a different street and proceeded to the residence on foot, having previously been made aware of the police presence at his residence, and that there may be items in the car that the applicant did not want police to know about relating to the offences they were investigating.[25] The Detective searched the car including under the bonnet and found a bottle of ultimately what was determined to be GHB, the drug the subject of count 2. This was found inside the engine bay in a Mount Franklin water bottle.
[25] T62.
When cross-examined, Ulpen conceded that he had no suspicion that there were drugs in the car prior to the search. In short, Ulpen could not see anything to suggest that there were drugs or drug paraphernalia inside the car.
The Detective’s position was that he suspected there may be evidence relevant to the commission of an indictable offence in the car. For example, mobile phones, documentation, anything that may link the applicant to BSH or to the drug trafficking being investigated.[26]
Discussion
[26] T62.
It was submitted, on behalf of the applicant, that the test articulated by Ulpen for the use of his s 68 powers was fundamentally flawed. As I understand the argument, it was submitted that the use of the word ‘may’ by the witness is different to the language of the Statute and necessarily imports an unacceptable degree of speculation to the grounding of the search. To put it another way, the applicant submits that Ulpen applied the wrong test when determining to search.
Ulpen made a note from the contents of the briefing that a fingerprint of the applicant was located on the key safe in which the methylamphetamine was discovered. As a matter of fact, this is not the case. No fingerprints were located by investigating police. However, a suspicion founded on information subsequently discovered to be wrong does not negative the existence of the suspicion or its reasonableness.[27]
[27] R v Rogers (2011) 109 SASR 307, 312.
It would appear the officer had the following pieces of information at the time the search was executed:
1. The applicant had attended at BSH and had attempted to traffic 20 grams of methylamphetamine to Roxby Downs in the microwave;
2. The fingerprints of the applicant were located on the lockbox containing the methylamphetamine; and
3. The applicant had parked his vehicle around the corner and proceeded to his residence on foot, ostensibly as a measure to foil any subsequent police attempts to search the vehicle.
In R v Golja[28] Stanley J (Kourakis CJ and Parker J agreeing) stated at [29]:
… In my view a police officer who discovers incriminating evidence of drug trafficking as a result of a search of a person’s motor vehicle might reasonably suspect that further evidence may be found at other places, including where applicable, a safe house, a storage unit, a workplace or that person’s residence. Experience suggests that persons involved in drug trafficking do sometimes use their residence for storage and safekeeping of drugs …
[28] [2017] SASCFC 61.
There is no reason to differentiate those principles from applying equally to a person’s motor vehicle. It is not uncommon for evidence relevant to the trafficking of drugs to be found in a motor vehicle.
Ulpen was possessed of sufficient information to give rise the requisite state of mind to deploy the powers afforded to him pursuant to s 68 of the Summary Offences Act. Even if Ulpen was mistaken about the test to be applied, notwithstanding the final position of the witness upon that test was in accordance with the words of the statute.[29] The information possessed was objectively reasonable to permit the search of the vehicle.[30]
[29] T67.31-T68.2.
[30] Bae v The Queen; Koo v The Queen [2020] SASCFC 7, [75]-[76].
If I am wrong about the admissibility of the impugned searches (and the public policy discretion does apply to searches one and two as identified by the applicant), then I would decline to exercise my discretion to exclude the evidence. My reasons for that decision follow.
Applicable Principles – Exercise of Discretion
In R v Ireland,[31] Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing) said:
… Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[32]
[31] (1970) 126 CLR 321.
[32] Ibid 335.
In Bunning v Cross,[33] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.[34]
[33] (1978) 141 CLR 54.
[34] Ibid 74.
The broader considerations to be balanced were stated in Bunning v Cross[35] as follows:
These are cases into which unfairness does not enter at all. They are, however, cases in which the considerations referred to in Ireland’s Case may be of the greatest relevance. The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measure affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be ‘a less evil that some criminals should escape than that the Government should play and ignoble part’-per Holmes J. in Olmstead v. United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.[36]
[References omitted]
[35] Ibid.
[36] Ibid 77-78.
In Pollard v The Queen,[37] Deane J observed from the passage of Bunning v Cross extracted at paragraph 33 above:
As that passage makes plain, the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police in not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this 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. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[37] (1992) 176 CLR 177.
I do not consider the suggested failures in this matter are so egregious as to warrant curial sanction in the form of exclusion of the impugned evidence.
In relation to the impugned searches conducted by the civilians at BSH, the civilians themselves held a strong suspicion as to the legitimacy or otherwise of the package placed into their custody. Their actions were not unreasonable. Objectively, those actions were prudent. If Nelsen’s actions were improper or illegal, then that behaviour was isolated (noting this was the only time she was aware of such an incident) and did not impact upon the cogency of the evidence. As a matter of practicality, Flavel would have lawfully seized the evidence pursuant to his GSW in any event.
In relation to the impugned search of the vehicle, there was no evidence to support a finding that the behaviour on the part of Ulpen was demonstrative of deliberate cutting of corners, evidence of a wider misunderstanding or abuse of police powers or interfered with the cogency of the evidence.
Finally, the impugned searches resulted in police obtaining cogent evidence of serious drug offending.
Having regard to the above, even if the searches were unlawful, I would not exclude the evidence. High public policy does not require curial censure in the circumstances of this matter.
I dismiss the application.
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