R v Eggen & Eggen-Zeytoun - [2016] SADC 26

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EGGEN & EGGEN-ZEYTOUN
[2016] SADC 26
Ruling of His Honour Judge Beazley
18 March 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Ruling as to admissibility of evidence of a search of a residence following an unlawful search of a motor vehicle - Police had earlier stopped that motor vehicle, and undertook the search of it - large quantity of methylamphetamine discovered in the vehicle - the second accused Eggen-Zeytoun was a passenger in the vehicle - subsequently the police used a general search warrant to search the home of the first accused Eggen ostensibly to seek evidence to support the investigation into Eggen-Zeytoun - a court subsequently found that the police stopping and searching of the motor vehicle constituted an illegal search - principle of incontrovertibility of facts - whether police had reasonable grounds to suspect that such evidence may be located at Eggen's home - proper exercise of the discretion to exclude fruits of the later search requires a consideration of the whole of the conduct of the police during both searches.
Held: Police found not to have requisite suspicion - in consequence the search of Eggen's home unlawful - fruits of search excluded in exercise of the discretion.
Controlled Substances Act (1984) s 32(3); Summary Offences Act (1953) ss 67 and 75, referred to.
Pollard v R (1992) 176 CLR 177; George v Rockett (1990) HCA 26; R v Rondo [2001] NSWCCA 540; R v Hunt [2014] NTSC 19; Ridgeway v R (1995) 184 CLR 19; Chehil v The Queen [2013] 3 SCR 220; Parker v Comptroller of Customs [2009] 83 ALJR 494; R v Ioannidis [2015] SASCFC 158; R v Nguyen (2015) SASCFC 7; R v Rochford (2015) 122 SASR 391; R v Nguyen (2013) 117 SASR 432; Gilham v R [2007] NSWCCA 323; R v McGee & McGee [2008] SADC 8, considered.

R v EGGEN & EGGEN-ZEYTOUN
[2016] SADC 26
Introduction

Yvonne Louise Eggen (‘the first applicant’), and Nadine Eggen-Zeytoun (‘the second applicant’), are jointly charged with the offence of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act, 1984.
The trial of the joint charge was listed to commence on 17 March 2016. Mr Trevarrow appeared as counsel for the DPP; Mr Healy appeared as counsel for the first applicant; and Mr Aitken appeared as counsel for the second applicant. Following the request of the parties I determined that I should convene a voir dire hearing to resolve the question of the admissibility of certain evidence, which the applicants had sought to impugn.
Each of the applicants was charged with the offence of Trafficking in a Controlled Drug, in consequence of the fruits of a police search of the first applicant’s home at Wynn Vale, at about 9.00am on 26 November 2013.
During that search, purportedly made upon the proper execution of a general search warrant, the police discovered two plastic containers secreted in a stuffed toy. They respectively held about 7.6 gms and 1.4 gms of methylamphetamine paste. The second applicant made admissions to the police to the effect that she was holding those drugs for another person. The first applicant made admissions to the effect that, as with anything else in the house, the stuffed toy belonged to her. The principal issue to be determined was whether the police search of the first applicant’s home was unlawful.
I ultimately ruled that the police search was unlawful, and that, in the proper exercise of my discretion, the evidence of the drugs and the admissions contained in the respective records of interview ought be excluded.
As the impugned evidence constituted the whole of the evidence against the first and second applicants, counsel for the DPP then entered a nolle prosequi against them.
What follows constitutes the ex tempore reasons for my Ruling.
The Applications
By applications made respectively by the first applicant on 19 February 2016, and the second applicant on 4 December 2015, and on 7 March 2016, the applicants sought orders that the evidence obtained by the police during the search, of the first applicant’s home, including the respective admissions made in the records of interview, be excluded on the basis that the search was unlawful, or alternatively that the use of the general search warrant was predicated upon an earlier unlawful search of a motor vehicle and was thereby the fruits of that earlier unlawful search.
Prior to the hearing of the evidence on the voir dire, the respective counsel for the applicants intimated that they did not pursue other grounds as to the exclusion of the alleged admissions. The sole ground remained that it was evidence so unlawfully obtained.
The submissions of both applicants raise important points of law. It involves the question of what is said to be the use by the police of the fruits of an unlawful search to found a subsequent search. A subsidiary issue is whether, the law automatically mandates that the fruits of a subsequent search ought be excluded, whenever the justification for that search is the fruits of an earlier unlawful search,[1] alternatively, whether the proper exercise of the discretion to exclude, leads inexorably to that result. [2]
[1] Contrast Ridgeway v The Queen (1995) 184 CLR 19.
[2] Pollard v The Queen (1992) 176 CLR 177 at 202-203; R v Rondo [2001] NSWCCA 540; R v Hunt [2014] NTSC 19; R v Ioannidis [2015] SASCFC 158; George v Rockett (1990) HCA 26; Chehil v The Queen (2013) 3 SCR 220; R v Rochford (2015) 122 SASR 591.
On the prosecution case the use of a general search warrant was justified to enable police to obtain evidence as part of their investigation of a crime committed earlier that day. It was, on the prosecution case, irrelevant that the earlier search was later held by a court to be unlawful. It was not and could not be suggested that the subject search was based upon some improper motive. Nor was it suggested that the police had any other basis to search the home of the first applicant.
The background to the subject search
In order to understand the submissions of the parties, it is necessary that I detail some of the background facts relevant to the original search of a motor vehicle on the morning of 26 November 2013. I will also detail the evidence purporting to justify the subject search of the first applicant’s home.
There was no dispute about the facts of the motor vehicle search. Ultimately there was little dispute as to the facts of the subject search.
The evidence before the Court included the filed declarations; the findings of another Judge of this court as to the unlawful nature of the motor vehicle search; and the oral evidence of Detective Brevet Sergeant Michael Wickens.
·The motor vehicle stop and search
It was not in dispute that at about 3 a.m. on 26 November 2013, a person, to whom I will refer to as ‘N’, was observed by police to drive a motor vehicle on the Salisbury Highway at Salisbury Downs. ‘N’ was suspected, by the police, of being a member of an unlawful motorcycle club, and was subject to a Firearms Prohibition Order. The second applicant, then an 18-year-old female with no criminal antecedents, was seated in the front passenger seat of the vehicle driven by ‘N’.
‘N’s’ vehicle was stopped by police officers, Constable Sweetman and Constable Attwood.
Those police officers gave evidence before that Judge, on the voir dire hearing as to the admissibility of certain evidence on a joint charge of trafficking in a controlled drug bought against the second applicant and ‘N’. Those officers had conducted a search of ‘N’s’ vehicle.
During that search Constable Sweetman located about 26gms of methamphetamine, together with certain drug paraphernalia in the vehicle. ‘N’ was arrested by the police and charged with the offence of Trafficking in a Controlled Drug at Salisbury. He was conveyed to the police station for processing. At that time it became clear to those officers that ‘N’ was in a permanent relationship with a person to whom I refer to as ‘MA’. There was no suggestion that the second applicant had any connection with either ‘N’ or the drugs, other than by being a passenger in the vehicle.
Relevantly for the purpose of the subject applications, the second applicant was searched and interviewed briefly by another Constable whose vehicle had arrived simultaneously at the scene of the stop and search. That officer was Constable Emma Roberts, who provided a declaration dated 14 April 2014.
Constable Roberts said that she had obtained details from Constables Sweetman and Attwood, and immediately took control of the second applicant.
Constable Roberts ultimately advised the second applicant that she would be reported, and conveyed her to the Wynn Vale address of the first applicant.
She said that ‘she understood that this address was her mother’s address’.
Constable Roberts explained that prior to placing the second applicant in the rear of the police vehicle, she had conducted a safety search of the second applicant.
I infer that nothing was found during that safety search. Constable Roberts detailed the series of questions which she asked the second applicant. There is no utility in detailing the whole of the interview. However the second applicant said that she had been at her mother’s house that evening and that she had been asked to get movies and a battery charger for her mother’s car. The second applicant had met ‘N’ ‘about 2 years earlier at a friend’s house, but did not see him often’.
She explained that she had no idea that ‘N’ had drugs in the vehicle.
She was asked by Constable Roberts:
QWhat time did you leave (your mother’s) house?
ANot long before you got us.
QWhere abouts were you going?
ATo ‘N’s’ house but past his ex’s house because something happened to his daughter.
QDid ‘N’ have anything with him?
AKey, torch and phones.
QWhat were you supposed to do after his house?
AHe was supposed to take me home and go.
QDid you meet up with anyone else tonight?
ANo.
QSo no one else was in the car?
ANo.
QHave you seen the package before?
ANo I haven’t. I don’t see ‘N’ often.
QHave you seen ‘N’ in that car before?
AOnce or twice.
QWhen was that?
AProbably 4 months ago.
QDo you take drugs?
ANo.
QHave you ever?
AOnly pot as a social thing.
QIt is 4.13am you will be reported for possess illegal substance … What do you think that means?
AI have no freaking idea. I’m going to fucking kill ‘N’.
QIt means you will be going to court over this at a later stage. You will receive a summons … where is it best to send the summons?
AMaybe my mum’s, just coz my house mate will flip out. (my emphasis)
Constable Roberts drove the second applicant to her mother’s house. Her mother is the first applicant. I infer that the second applicant was simply reported to await the outcome of further investigations which may or may not establish whether she had any other connection to the drugs, whether by DNA or otherwise.
·The outcome of the voir dire on the stop and search of the motor vehicle
On 20 November 2015, the Judge of this Court ruled upon the application by ‘N’ to exclude, on the hearing of the charge against himself and the second applicant, the evidence of the search of the motor vehicle. It was unclear from the transcript as to whether the second applicant was a party to that application. However both the first and second applicants were noted as being in attendance. That Judge was concerned about apparent inconsistent evidence given by the two police officers called on the voir dire.
He delivered extempore reasons on 20 November 2015. His Honour was not prepared to accept that prior to the stop and search, the police had formed the requisite belief that a firearm was in the motor vehicle. He held that the search was accordingly unlawful and that the evidence obtained in the search, including the drugs, was unlawfully obtained.
His Honour addressed the existence of what he described as the ‘Bunning v Cross type of discretion’. He referred to some of the recent authorities of the Court of Criminal Appeal, including The Queen v Nguyen (2015) SASCFC 7. He exercised his discretion so as to exclude the evidence obtained in the search of the motor vehicle. Eventually the charge against the second applicant and ‘N’ on that joint possession charge at Salisbury, was the subject of a nolle prosequi.[3]
[3] Ex Tempore Reasons dated 20/11/15.
The subject applications
On the subject applications, all parties proceeded on the basis that this court was bound by the facts as determined by his Honour and his findings as to the unlawfulness of the stop and search. Very properly in light of the principle of incontrovertibility, no one sought to collaterally challenge those findings.[4]
[4] See The Queen v Gilham [2007] NSWCCA 323 and R v McGee and McGee [2008] SADC 8 as to principle of the incontrovertibility of the facts found upon an earlier hearing.
The parties accepted that the burden of proof was that expressed by French CJ in Parker v The Comptroller-General of Customs, namely that:[5]
The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process.
[5] (2009) 83 ALJR 494.
The issue on the voir dire was whether the evidence obtained on the subject search ought be excluded because it was based entirely upon the fruits of the unlawful search of the motor vehicle.
·The evidence of Detective Brevet Sergeant Wilckens
The prosecution called, as a witness on the voir dire, Detective Brevet Sergeant Wilckens. He was, at the time, the supervisor of the Elizabeth CIB Tactical Section. He did not attend upon the search of the motor vehicle. At the time when he exercised his general search warrant, he could not have known that the search had been or would be declared to be unlawful.
He deposed to speaking to a Senior Constable Williams at about 7.25 a.m. on 26 November 2013, that is to say, about four hours after the stop and search of the motor vehicle by Constables Sweetman and Atwood. It was initially disputed by counsel for the applicants that Detective Brevet Sergeant Wilckens had in fact spoken to Senior Constable Williams at all. It was put to him that Senior Constable Williams was not at the scene of the stop and search of the motor vehicle, and, inferentially, that Mr Wilckens must have known that at the time.
I accept the evidence of Detective Brevet Sergeant Wilckens that he did speak to Senior Constable Williams that morning and that Senior Constable Williams had given him an abridged version of what had occurred at the motor vehicle stop and search. At that time Mr Wilckens had not spoken to any of the police officers who had taken part in the stop and search of ‘N’s’ vehicle, nor anyone who had spoken to the second applicant. Mr Wilckens did not have the chance to examine a copy of the apprehension report of the stop and search, as it had not been prepared at the time.
It was clear that Mr Wilckens had been told the basic details of the stop and search, and, as I have found, I accept that it was Senior Constable Williams who told him.
I make it clear that I accept Mr Wilckens as a witness of truth doing his best to recall the events at the time. He had made extensive notes and had refreshed his memory from those notes. On matters not in the notes, however, he understandably had difficulties in remembering details. He said that he believed that Senior Constable Williams had attended the scene of the motor vehicle stop. There was no mention in the notes to that effect. I cannot be satisfied on the evidence that Senior Constable Williams did in fact attend the scene. While this does impact adversely upon the value of what he was told by Senior Constable Williams, I have no doubt that Mr Wilckens believed that Senior Constable Williams had been at the scene of the search.
He deposed that he treated this matter as an ongoing investigation. He said that he was aware of ‘N’s’ history as a member of an outlaw motorcycle club. In the ordinary course of events, I accept that it would have been an entirely proper practice to conduct a search of ‘N’s’ residence at Northfield, and probably the second applicant’s residence, wherever that was.
There were clearly reasonable grounds for Mr Wilckens as the holder of a general search warrant to suspect that ‘N’, a person charged with trafficking 26gms of methamphetamine, may have had other drugs, tick lists or other evidence to assist in the investigation of the charge against him at his house.
Putting to one side the position of ‘N’ and the second applicant, one might ask rhetorically: ‘Of what relevance is the home of the first applicant?’. There was nothing to connect ‘N’ with the first applicant at all, save that the second applicant was driven there by the police.
Ordinarily the residence sought to be searched, is that of the accused person, whether it be N or the second applicant. Was the first applicant’s home, the residence of the second applicant on the evidence, or was it no more than that the second applicant happened to be driven to her mother’s residence by a caring police officer?
Mr Wilckens deposed as to what he was told by Senior Constable Williams.[6]
[6] T. p 10 at lines 11 - 38.
He was told that the vehicle had been stopped; that there were two persons in the motor vehicle; that a search had taken place; that they located a bag in the footwell by ‘N’s’ feet; and that a search of the bag had produced the illicit drugs. He said he was told that police had conducted a record of interview with the second applicant, and that she was reported for trafficking in those drugs.
He said that he was told that ‘N’ was arrested, and that he had $3,000 in his wallet. He believed that the money was not seized by police. He then said that he was subsequently provided with more information about ‘N’. He said that Senior Constable Williams had told him the respective dates of birth and the respective home addresses of both ‘N’ and the second applicant.
I accept that Mr Wilckens was doing his best to recall all of the matters about which he had been informed by Senior Constable Williams. But I do not accept that he was told that the second applicant ‘lived’ at the address of the first applicant at Wynn Vale. I conclude that Mr Wilckens simply assumed that she lived at that address because she was driven there by Constable Roberts. He would not have regarded her address as being of any significance at the time.
In fact it was not her address. It is patently clear from the declaration of Constable Roberts, that the Wynn Vale home was merely her mother’s home, and that she resided elsewhere. It would also have been clear that Senior Constable Roberts did not conduct a search of the mother’s home. She simply drove the second applicant to her mother’s home.
Discussion
In my opinion, thereafter, Detective Brevet Sergeant Wilckens proceeded on a misunderstanding as to where the second applicant resided. At the relevant time of the search of the first applicant’s home, the police in fact knew no more about the second applicant, than that she was in the motor vehicle as a passenger, that the vehicle was driven by ‘N’, that there was nothing otherwise to connect ‘N’ and the second applicant. Further, whether it was true or not, in fact Mr Wilckens had been told the drugs were in ‘N’s’ footwell and the $3000 cash was not seized by the police.

It was known to the police that the second applicant had denied knowledge of the drugs when she was spoken to at the scene. She had no drugs on her. She was reported.
There was nothing to connect the first applicant to ‘N’ nor the drugs, save for the fact that her daughter was driven to her house by the police officer.
Constable Roberts did not conduct a search of the mother’s house. I infer that she had no reasonable grounds to do so. There was, as I say, no other connection, apart from being in the car, between the first applicant and the other accused, ‘N’. Yet at 9 a.m. the search of the first applicant’s home took place and evidence against them was obtained. None was obtained against ‘N’.
No other witnesses were called by the prosecution. In particular Senior Constable Williams was not called. Neither counsel for the two applicants sought his attendance as a witness. Neither applicant gave evidence, nor did they call any witnesses.
Submissions
Mr Trevarrow submitted that there ought not be any difference between ‘N’ on the one hand, and the second applicant on the other. Detective Brevet Sergeant Wilckens knew only that both had been charged with the same offence.
Accordingly he submitted that he had reasonable grounds to suspect that there may be evidence to assist in the investigation of the drugs in the motor vehicle, at those places attended by both ‘N’ and the second applicant that night. In the ordinary course, that submission must be correct.
He also correctly submitted that at the relevant time Mr Wilckens had no idea that the search of the motor vehicle was unlawful. Accordingly this is not a case of the police deliberately using tainted evidence to justify a later search.
The respective counsel for the applicants concentrated their submission upon the fact that the search of the motor vehicle was unlawful. They submitted that accordingly the prosecution ought not be permitted to use the fruits of that search as the sole justification for the search of the first applicant’s house.
I will put to one side for one moment, the interesting question as to whether there is a wider principle that mandates the exclusion of the fruits of a later search, even if otherwise lawful, when there has been an earlier unlawful search.
I repeat that I am satisfied that Detective Brevet Sergeant Wilckens was mistaken about the second applicant’s residence being that of the first applicant’s home. It plainly was not. The question in this case was whether Detective Brevet Sergeant Wilckens, on the information available to him at the time, had reasonable cause to suspect that there may be evidence as to the commission of the offence committed in the motor vehicle that morning at the first applicant’s house.
When expressed in that form, as Detective Brevet Sergeant Wilckens himself did in his declaration dated 7 March 2016, in my opinion there was insufficient information to support such a reasonable suspicion. If the mere attendance of a person at a house occupied by another, even in the case of a parent, is enough to permit a search of that house without more, it would be a serious intrusion into the property and other rights of the occupant.
At its highest the police knew that drugs were found in the motor vehicle; that the second applicant was a passenger in that motor vehicle; that the first and second applicant’s were in some way related; and that the second applicant was dropped off by police and to the first applicant’s home.
There was no other evidence of any other connection between ‘N’ and the second applicant, let alone the first applicant. There was no suggestion that money or drugs were found on her. She did not appear to be affected by drugs. She had no criminal antecedents.
In my opinion there was barely evidence sufficient to justify a search the second applicant’s residence.
There was no basis at all to search the first applicant’s home.
In R v Nguyen (2013) 117 SASR 432 at 437 the Court of Criminal Appeal 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. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists’ The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers and having regard to the civil liberties abrogated by their exercise. It would not be reasonable to suspect that evidence of the earlier offending would be found in the house if the only occupant was the mother of an accused who was otherwise resident elsewhere.
·The use of a general search warrant
In R v Nguyen, supra, at p 438, the Court referred in passing to the difference between the use of a general search warrant under s 67 of the Summary Offences Act, 1953 (SA) and the powers of entry under s 52 of the Controlled Substances Act 1984, (SA). While the Court noted the differences between them and decided to leave those questions for another day, it observed that ‘the powers available under a general search warrant are also conditioned on reasonable suspicion about the existence of evidence of offending’.
Conclusion as to the search
In my opinion Detective Brevet Sergeant Wilckens found himself in an impossible position. I conclude that there was insufficient material for him to form a reasonable basis to suspect that material relevant to the investigation could be found at the home of the first applicant. I accordingly conclude that the search of the home was unlawful.
·Discretion
I turn then to the exercise of the discretion to exclude the evidence obtained during the search at the first applicant’s home. There is no utility in detailing the dicta of the various judges of the Court of Criminal Appeal in the cases of R v Ioannidis (2015) SASCFC 158; R v Nguyen, to which I have referred; another case of R v Nguyen (2015) SASCFC7, and R v Rochford (2015) 122 SASR 391.
In George v Rockett, supra, the High Court said a search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. The same is true of the exercise of a general search warrant. It said that ‘in prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against a need to protect the individual from arbitrary invasions of privacy and property. Search warrants facilitate the gathering of evidence against and the apprehension of those who have broken the law. Nevertheless, it needs to be kept in mind that they authorise invasions of interest which the, common law has always valued highly and goes to great lengths to protect’.
In R v Ioannidis, the Court of Criminal Appeal detailed the case law which stressed the fundamental freedoms of liberty, movement and privacy.
The court said that, in that case ‘it appears that detectives assigned to drug related investigations do not receive comprehensive training identifying the requisite reasonable suspicion required to be held before the powers of detention and search conferred by the Act are enlivened or about matters capable of comprising reasonable grounds to found such a suspicion’.
This matter was also addressed very briefly by Detective Brevet Sergeant Williams in the subject case.[7] He was asked a question about whether in fact he had received training, particularly in relation to the use of a general search warrant and what constitutes reasonable suspicion. He said:
A.The reasonable suspicion is formed in my mind. I don’t receive training in it, it comes from experience.
Q. You are trained in the powers you have under the general search warrant and when it is you can actually use it legitimately.
A. No, I was not trained in using my general search warrant.
Q. You weren’t trained, were you, you received no training, did you.
A. We completed our detective training book with the runs on the board as you said and once it’s completed and certified and signed off and the commissioner signs that you’ve passed a level of criteria, you are given a general search warrant. I have read the general search warrant and I know when and why I can use any general search warrant but my criteria that is made up at any given time I’m presented with the information, it can vary every single time.
[7] T. p 31.
In this matter I accept entirely that the investigating police officers in the subject search, in particular Mr Wilckens, did not deliberately misuse their powers. In hindsight it would have been better to await the transcription of the apprehension report or speak to the officers who interviewed the second applicant so as to ensure that the basis to search in first applicant’s house was as he believed. As I have found, he was misled as to the presumed basis for the search of the house.
In the case of R v Rochford, Stanley J, for the court, said that the right of a citizen, in this case the first applicant, to be protected from an unlawful search and entry is an important civil right in our society. In that case despite the fact that the police did not deliberately contravene the law in entering the property and the evidence obtained was cogent, the court concluded that the proper exercise of the discretion was to exclude the evidence to ensure that courts are not demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
In the subject case, as in Rochford, the evidence obtained at the first applicant’s house was extremely cogent. Indeed, the prosecution case against the two applicants is entirely dependent upon its admissibility.
In R v Rondo[8] the Court of Criminal Appeal (NSW) considered a similar factual matter to the subject case. There had been an unlawful stoppage of a vehicle and an unlawful search of the vehicle. Subsequently the accused had made admissions at an interview. He was then taken to a house where he lived with his mother. The search at the house disclosed about 60 cannabis plants.
[8] [2011] NSWCCA 540.
The trial judge had concentrated only upon the search of the home. He permitted the evidence of the search to be admitted because of its cogency.
On appeal the Court of Criminal Appeal said that the judge below had erred. It said the impropriety or illegality must be viewed cumulatively and not disjunctively. It was necessary to look at the whole of the conduct which gave rise to the final search. It said that all of the impropriety flowed from the illegal stopping of the motor vehicle without reasonable cause or suspicion. It said that the court below had erred by not taking into account the earlier unlawful stop and search. The search of the house had followed from that unlawful search; the stopping of the vehicle and unlawful interference with the applicant’s freedom of movement. It concluded that the failure to take into account such an important matter vitiated the trial judge’s discretion. Notwithstanding the cogency of the evidence found at his and his mother’s house and the admissions made by the accused, the proper exercise of discretion demanded the exclusion of all evidence afterwards obtained as a consequence of the unlawful stoppage.[9]
[9] See also R v Hunt (2014) NTSC 19.
While this case involved the use of s 138 of the Uniform Evidence Act, I accept the principle that a court must consider the whole of the conduct of the police including the unlawful search of the motor vehicle and not just limit itself to the subject search when considering its discretion to exclude such evidence.
In the circumstances of this case I do not need to consider whether there is any wider principle of law which may apply to the case of an otherwise lawful search, which was made upon the use of the fruits of an earlier unlawful search. In any event such a principle does not seem consistent with the dicta in The Queen v Ridgeway, supra.
I also do not need to consider whether the proper exercise of any direction must always lead to the exclusion of such evidence obtained from the fruits of an earlier unlawful search.
I have hesitated long and hard as to whether I ought to exercise my discretion to exclude the fruits of the search of the first applicant’s home.
Conclusion
In my opinion in light of the unlawful searches of the motor vehicle and that of the first applicant’s house, and consistent with the high public policy referred to in Rochford’s case I exclude the evidence obtained in the search of the first applicant’s house. I accordingly rule that the prosecution will not be permitted to lead evidence of the drugs found at that house nor the admissions made by the respective applicants at the trial.