R v Dunn - [2018] SADC 77

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DUNN
[2018] SADC 77
Ruling of Her Honour Judge Chapman
16 July 2018
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Application by accused to exclude evidence obtained by police from a search of his vehicle - Police found methylamphetamine under the driver's seat - whether the evidence of the police officer regarding the basis for his suspicion to search the vehicle should be rejected - whether, in the alternative, the suspicion to search the vehicle was reasonable.
Held: The evidence of the police officer who conducted the search was credible - there was a reasonable suspicion to search the vehicle - the search was lawful - application dismissed.
Controlled Substances Act 1984 s 52(9), referred to.
R v Nguyen (2013) 117 SASR 432, considered.

R v DUNN
[2018] SADC 77

The accused is charged with committing an offence of Trafficking in a Controlled Drug. The charge concerns 13.8g of mixed methylamphetamine found by the police in his vehicle on 10 August 2016 at Salisbury Plains.
The accused has made an application pursuant to Rule 49 of the District Court Criminal Rules 2014 for the exclusion of all the evidence obtained as a result of the search of his vehicle. The exclusion is sought on the basis that the police did not have a reasonable suspicion to search the vehicle pursuant to s 52(9) of the Controlled Substances Act 1984 (CS Act). Primarily, the defence seeks to impugn the credibility of the police evidence regarding the alleged basis for the formation of a suspicion. In the alternative, the accused submits that even if the police evidence was accepted on that topic, the suspicion held was not a reasonable one.
The search of the accused’s vehicle
Brevet Sergeant Joel Manson (Manson) conducted the search of the accused’s vehicle. He was in company with two other police officers that evening, namely, Detective Brevet Sergeant Shane Pickering (Pickering) and Senior Constable Daniel Brook (Brook). All three officers gave evidence on the voir dire.
In summary, Manson formed a suspicion to search the accused’s vehicle (a white Commodore) based upon how it was positioned next to another vehicle (a red Commodore) in a car park during the evening when all but one of the shops were closed, as well as the accused’s dishonest answer to a question about his drug history. His suspicion to search the accused’s vehicle was also based on the location of deal bags in the red Commodore and the presence of approximately $2,000 cash in the wallet of the driver of the red Commodore.
Manson’s evidence that one of the grounds for his suspicion was that the accused lied about his drug history was challenged by the accused.
At about 7.35pm, Manson, Pickering and Brook were in a police vehicle on patrol. As they drove past a large car park on the corner of Saints Road and Main North Road at Salisbury Plains, they saw two vehicles, a white Commodore and a red Commodore, parked parallel but facing opposite directions. The drivers’ windows were aligned and in very close proximity. The BWS liquor shop (the BWS) was the only shop open. There were other vehicles parked immediately in front of the BWS. The two vehicles in question were some rows further back on their own about 30 metres or so from the BWS.
The three officers approached the white Commodore. The accused was in the driver’s seat. Mr Harris (Harris) was in the front passenger seat. Brook then approached the driver of the red Commodore who was Mr Hutchins (Hutchins).
Manson gave evidence he asked the accused whether they were dealing in drugs. The accused replied “No”. Manson asked the accused if he had any history of being in trouble with police for drugs. The accused replied “No”. Manson asked the accused to produce his driver’s licence. On its production, Manson became aware that the man to whom he was speaking was Zachary Dunn, the accused.
Manson asked Hutchins whether he had any drug history with the police and he replied “No”. Manson took the accused’s licence and Hutchins’ details. He then returned to the police vehicle and personally conducted checks on the police computer systems in relation to their drug history. The checks revealed that on more than one occasion both the accused and Hutchins had been spoken to by police in relation to drugs. They had been issued cannabis expiation notices or a drug diversion notice for possession of a small amount of amphetamine or glass pipe.
Manson gave evidence he formed a suspicion to search the two vehicles at that time based upon the manner in which the vehicles were parked in the large car park that evening whilst only one shop was open, as well as what Manson considered to be lies by the accused and Hutchins about their drug history. He thought the lies were an attempt to prevent police from investigating further.
After conducting the computer check, Manson gave evidence he had a short conversation with Pickering. Pickering told him he had smelt cannabis when he first approached the passenger side of the accused’s vehicle. That information reinforced Manson’s decision to conduct a search of the vehicles. On returning to the vehicles he did not smell any cannabis, however, he did not approach the passenger side of the accused’s vehicle to investigate that further.
Pickering gave evidence he smelt cannabis and formed a suspicion in regard to Harris pursuant to s 52(6) of the CS Act. He informed Harris of that suspicion after which Harris told him he had cannabis in his pocket. Pickering located a small amount of cannabis in Harris’ pocket for which he issued an expiation notice. He also located methylamphetamine for which he arranged a drug diversion. He gave evidence he communicated with the other two officers about his dealings with Harris, but could not recall exactly what was said by him or when, other than it was prior to the search of the vehicles.
Brook gave evidence he spoke to Hutchins who said he was waiting for his girlfriend, but did not say how he knew the other people in the other car and refused to say what he was doing with them. Hutchins was fidgety and nervous. Brook formed a suspicion to search Hutchins pursuant to s 52(6) of the CS Act. He located approximately $2,500 cash in Hutchins’ wallet. As a result, he formed a suspicion in relation to the red Commodore vehicle and searched it pursuant to s 52(9) of the CS Act. He located empty deal bags and an ice pipe inside the vehicle. He said Manson helped to search the boot.
Manson believed that Brook conducted the search of the red Commodore at his direction. However, Brook was clear in his evidence that he conducted a search of Hutchins and Hutchins’ vehicle based on suspicions he formed himself. The defence did not challenge the legality of Brook’s search of Hutchins or the red Commodore. Brook’s evidence was that the accused’s vehicle was searched after the red Commodore was searched.
Manson gave evidence he kept an eye on the accused and Hutchins whilst Brook conducted a search of the red Commodore. During that search, Brook told him he had located some empty press‑seal bags inside the red Commodore as well as a substantial amount of money inside Hutchins’ wallet. Manson then searched the boot of the red Commodore. He saw empty press‑seal bags; commonly used to contain amphetamines or small amounts of cannabis. He also saw the substantial amount of $50 notes inside Hutchins’ wallet. He thought it looked like about $2,000 in cash. Manson gave evidence the discovery of the deal bags and the cash made him suspect that Hutchins was likely to be there to purchase drugs from the accused.
When the search of the interior of the red Commodore was completed by Brook, Manson asked Brook to watch Hutchins. Manson then asked the accused to step out of his vehicle. The accused was unable to do that because the cars were parked too close together. Manson asked the accused to move his car forward a few metres, which he did. Manson then conducted a search of the accused’s vehicle. He found a glass bong in the centre console and a bag containing 13.8g of mixed methylamphetamine under the driver’s seat. He arrested the accused.
The challenge to the search of the accused’s vehicle
The defence challenged the credibility of Manson’s evidence that the accused told him a lie about his drug history with the police. First, it was submitted that Manson’s evidence of his conversation with the accused on that topic should be rejected. Second, it was submitted that Manson’s evidence about conducting the checks on the police system should be rejected.
In regard to the conversation, the accused gave evidence on the voir dire that he was not asked by Manson about his drug history with the police. His evidence was that the police officer said to him “Good day boys. What are you up to tonight”. The accused responded, “Not much. I was about to go to the bottle shop. I’d just seen my mate here so I veered over to have a chat with him”. The officer said “You’re not here doing a drug deal or something like that”. The accused answered “No”. The accused then produced his licence as requested.
When cross-examined, Manson did not recall the accused saying he was on the way to the BWS. He rejected the suggestion he did not ask the accused whether he had a drug history with the police. Manson was cross-examined about the absence in the notes he made at 8.20pm of specific reference to that part of the conversation with the accused. He said he did not have the opportunity to make detailed notes at that time. He had more opportunity to make notes at 8.40pm which is when he made specific reference to a lie. He agreed he did not outline the terms of the conversation until he made his statement on 1 November 2016.
The defence also referred to the contradiction of Manson’s evidence that he personally conducted the checks on the computer system. The hearing was adjourned for the log records for the police computer systems to be obtained. They showed that Manson did not personally conduct checks that evening in regard to the accused. Rather, the checks were conducted by another police officer, Troy Bennett (Bennett).
Bennett gave evidence he was at the police station that evening. He was contacted by one of the officers who was at the car park and asked to make the checks. The first logged time was 7.27pm that evening.
Manson was recalled on this topic. When he became aware of the log records, he said his recall was that he did personally conduct the checks on the computer system, but accepted that his recall must be flawed. He did remember contacting Bennett at the Mantle Office at the Elizabeth Police Station, but did not remember the details of that conversation. He did not remember asking Bennett to conduct the checks for him.
Prior to the defence requesting production of the log records, Pickering had given evidence that Manson was on the radio that night doing the checks.
I find that Bennett was asked by Manson via radio to conduct the checks on the accused and Harris. I do not make any finding adverse to Manson’s credibility because his evidence that he personally conducted the checks turned out to be wrong. He made an appropriate concession in his evidence upon becoming aware of the log records. He accepted his recall was flawed about that aspect. I find that he was honestly mistaken.
The defence also referred to the discrepancy between the logged time of the first inquiry by Bennett as being 7.27pm and the time the three police officers said they initially observed the two parked vehicles as being about 7.35pm. Manson gave evidence that the time of ‘about 7.35pm’ was an estimation only. He also gave evidence he had no idea about the identity of the driver until after the licence was produced. I accept Manson’s evidence on this point. I do not consider that a discrepancy of around eight minutes is a significant one. There is no other evidence to suggest that Manson or any of the other officers knew the identity of the occupants in the car prior to them stopping to investigate the two vehicles in the car park.
I also accept the evidence of Manson as to the terms of the conversation he had with the accused prior to the checks being made. I do not accept the evidence of the accused on this topic. Even though Manson did not make detailed notes of that conversation that evening, he did cause checks to be conducted on the accused’s history with the police. That is consistent with him having asked the accused about that topic. Further, at 8.40pm, he made a note that the accused had told him a lie. That is a relatively contemporaneous note which supports there having been conversation with the accused as recounted by Manson.
Accordingly, I accept Manson’s evidence he formed a suspicion to search the accused’s vehicle based upon the position of the two vehicles in the car park that evening and the lie told to him by the accused about his drug history with the police. In R v Nguyen[1] the Court of Criminal Appeal held that:
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.
I am satisfied that Manson had a suspicion, as required by s 52(9) of the CS Act, that any substance or equipment that would afford evidence of an offence against the CS Act was in the accused’s vehicle. He had a working hypothesis for which there was some supporting material.
[1] (2013) 117 SASR 432 at [21], citing Bain v Police (2011) 121 SASR 10, [28] – [29]; R v Rogers (2011) 109 SASR 307, [22]
The defence submitted that even if I accepted the evidence of Manson regarding those two grounds for his suspicion, it did not amount to a reasonable suspicion. The test to be applied in assessing what amounts to a reasonable suspicion is an objective one. As stated by the Court of Criminal Appeal in R v Nguyen[2]:
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 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.
[2] (2013) 117 SASR 432 at [22], citing R v Davidson (1991) 54 SASR 580, 584
I consider that Manson’s suspicion was a reasonable one. It was not based on flimsy material or tenuous reasoning. There was some cross-examination about the positioning of the two vehicles to suggest it was not suspicious because people in the country who come upon each other might stop to say hello in that way. The police witnesses were not able to comment upon that. Plainly, this did not occur ‘in the country’. The observation was made in Salisbury Plains in a large car park at a time in the evening when only one shop was open and the two vehicles in question were parked some distance from that shop. Further, the accused had given a false answer to the police when asked about his drug history. It was reasonable for Manson to have the relevant suspicion.
Even if I am wrong about the reasonableness of the suspicion held by Manson on those two grounds, the evidence was that his suspicion was not based solely on those two grounds. Prior to searching the accused’s vehicle, he became aware there were empty deal bags inside the red Commodore as well as a substantial amount of cash inside the wallet of the driver of the red Commodore. That additional information led him to suspect the driver of the red Commodore was likely to be there to purchase drugs from the driver of the white Commodore, namely the accused. I find that the suspicion held by Manson by that stage regarding the accused’s vehicle was a reasonable one. I therefore find that the search of the accused’s vehicle on 10 August 2016 at Salisbury Plains was lawfully conducted pursuant to s 52(9) of the CS Act.
I dismiss the application made by the accused.