R v FAIELLO

[2022] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v FAIELLO

[2022] SADC 33

Reasons for Ruling of his Honour Judge Heffernan 

18 March 2022

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES

The accused was driving his car at night on Hindley Street and was subject to a direction to pull over pursuant to the Road Traffic Act 1961. A police officer claimed to have seen the accused drive past him not wearing a seat belt. The officer radioed other officers further down the street to pull him over for a possible breach of the Australian Road Rules and breath analysis. The accused was directed to stop and did so. The accused remonstrated with police about whether he had been wearing a seat belt or not. Police observed an item in his vehicle which made them suspect he was in possession of the drug Fantasy. By reason of his erratic manner, his actions and the item in the vehicle, a police officer suspected he was affected by drugs. The accused was directed to get out of the vehicle and after he did so, he attempted to dispose of the item previously seen by police. The vehicle was searched and a quantity of drugs located.

The accused seeks the exclusion of the evidence on the basis that police did not have the requisite suspicion either to direct him to stop or to search the vehicle.

Application dismissed.

Road Traffic Act 1961 (SA) ss 40H(1)(a), 40V(2)(b) and 47E(1)(a), referred to.
R v Golja [2017] SASCFC 61, considered.

R v FAIELLO
[2022] SADC 33

Criminal

1. The accused is charged with one count of trafficking in a controlled drug namely methylamphetamine. The offence is alleged to have occurred on Hindley Street on 10 March 2020. He has made an application to have the evidence of the search of his vehicle excluded. The application is in the following terms:

   Application

   That the evidence flowing from the search of the applicant’s motor vehicle on the 9^th and 10^th of March 2020 including any admissions made by the applicant to the police be excluded.

   Grounds

   The search of the applicant’s vehicle on the 9^th and 10^th of March 2020 was unlawful in that the suspicion entertained by the police following the applicant’s vehicle being stopped on Hindley Street, Adelaide was not reasonable and was incapable of grounding a lawful search, alternatively, that the search of the applicant’s vehicle was predicated upon the unlawful stopping of the applicant’s vehicle on Hindley Street, Adelaide and was thereby the fruits of that unlawful vehicle stop.

   Overview

2. On 9 and 10 March 2020 Brevet Sergeant Marcus Rogers was on duty on Hindley Street. At about 11:53 pm on 9 March he was in the process of speaking to a member of the public who had been detained on suspicion of an offence. As he did so, he observed the accused drive past on the other side of the road in an easterly direction in a black Audi. The accused was the only person in the Audi and had the driver’s window fully down at the time. Rogers observed that the accused was not wearing his seatbelt. He then radioed Hindley Street Police Station advising of what he had seen and requesting a traffic stop and possible Alco test. An officer from Hindley Street Police Station stopped the accused’s vehicle. Police noted that once the accused was stopped, he seemed nervous, erratic and argumentative. An Alco test was performed and was negative. It was noticed that the accused’s pupils were very dilated, and his manner of speech was rapid. Police saw a disposable water bottle in the centre console of the Audi which appeared to contain lemon cordial. The officers suspected that the liquid in the water bottle contained the drug commonly referred to as GHB mixed with cordial. The accused was seen by one of the officers to be holding an object in his left hand which he then discarded onto the passenger seat. The object appeared to be a small bottle and it was seen to have a small amount of liquid in it. Police suspected that the liquid was an illicit substance.

3. The accused was told to get out of the car which, after remonstrating with them, he did. As the accused approached the footpath, he was seen to put the small bottle from the passenger seat into a rubbish bin. The accused continued to be defensive towards police on the footpath, at one stage refusing to sit down as he was directed to do. The small bottle was retrieved from the rubbish bin and police then searched the car, suspecting that illicit substances were present. Police located a Gucci satchel which contained a Gucci wallet with a small amount of cash and cards in the name of the accused; a black zip up pencil case which contained a plastic resealable bag which in turn contained a significant amount of white crystalline substance; two smaller plastic resealable bags containing trace amounts of white powder, a glass ice pipe, a number of straws including a cut straw, a syringe containing a liquid, two spoons, a cutting device, the empty tube of a pen and tweezers. The bottle was a small Queen branded green food colouring bottle with a green liquid lid containing a clear substance. Police also found a bottle of lemon juice in the centre console of the Audi, a Mount Franklin water bottle in the centre console which contained what appeared to be lemon cordial and a further bottle of lemon juice in the boot of the car.

4. The initial sighting of the Audi was captured on the body worn camera footage of Brevet Sergeant Rogers.[1] The stopping of the car, the conversations with the accused and his movements after he got out of it were captured on the body worn camera footage of Constable Patterson.[2] When stopped by police, the accused said adamantly and repeatedly that he had been wearing his seatbelt when seen by Rogers. He said that he was in the process of taking it off as he came to a stop after having seen police directing him to do so. The accused was arrested and taken inside Hindley Street Police Station. He answered questions, admitting possession of the methylamphetamine for personal use. The body worn camera footage was tendered and played during the voir dire. The court heard evidence from officers Rogers, Osborne and Patterson. The accused also gave evidence on the voir dire.

   [1]     Exhibit VDP1A.

   [2]     Exhibit VDP3.

   Submissions

5. For the accused, Mr Moffa submitted that there were two aspects leading to his ultimate submission that the fruits of the police search should be excluded. First, Mr Moffa submitted that the police had unlawfully stopped the accused because Constable Patterson did not form his own reasonable suspicion that the accused had breached a Road Rule, instead relying on information conveyed to him by Brevet Sergeant Rogers. For that reason he did not have authority to pull over the accused.

6. Secondly, Mr Moffa submitted that Constable Osborne did not have the requisite reasonable suspicion to search the vehicle because the actions and behaviour of the accused, in conjunction with other observations of the police, did not meet the threshold for forming such a suspicion. Mr Moffa further very faintly submitted that Constable Osborne might have conflated the significance of his observations with his past knowledge of the accused because he had had previous dealings with him. Ultimately, that submission did not find traction.

7. For the prosecution, Ms Hurley submitted that both the stopping of the vehicle and the search were lawful and that no evidence should be excluded. It was submitted that Brevet Sergeant Rogers had a genuinely held belief based on his observations of the accused not wearing a seatbelt, even if mistaken about that matter, and that Constable Patterson acted upon that information in reasonably suspecting the accused of breaching the Road Rules, therefore giving him lawful authority to pull over the accused.

8. Secondly, Ms Hurley submitted that there was a rational connection between the supporting material and the suspicion formed by Constable Osborne. As Ms Hurley submitted that a combination of factors including the officer’s observations of the accused’s behaviour, the dilation of his pupils and seeing the small bottle in the car gave him the requisite reasonable suspicion to search it.

   Conclusion

9. I have considered the evidence and submissions of counsel closely. I accept the evidence of Brevet Sergeant Rogers as being honest when he said that he saw the accused not wearing his seatbelt. It is for that reason immaterial whether the accused was actually wearing or not wearing or incorrectly wearing his seatbelt. Even if he was wrong about that, a genuine but mistaken belief on a matter such as that was sufficient for the purpose of engaging the power under s 40H(1)(a) of the Road Traffic Act 1961 (RTA) to direct that the accused’s vehicle be stopped. It was Senior Constable Patterson who exercised the powers in s 40V(2)(b) and s 47E(1)(a) of the RTA. I accept as honest and reliable the evidence of Constable Patterson that he was informed by Rogers that the accused had been seen not wearing a seatbelt and that he believed that information and that he directed the accused to stop his car because he was acting on that information. In doing so, he was firstly, validly exercising the power under s 40H(1)(a) of the RTA to direct the accused to stop his vehicle for the purpose of or in connection with other powers, namely the power to direct the accused under s 40V(2)(b), to consider enforcing rule 264 of the Australian Road Rules and to consider administering an Alco test under s 47E(1)(a) of the RTA. There was no illegality or impropriety involved in those actions. The power in s 40V(2)(b) was validly exercised because Patterson held the suspicion that the accused had committed an offence against the Australian Road Rules on reasonable grounds. The suspicion was held on reasonable grounds because he believed and acted on what he had been told by Rogers. Those grounds were no less reasonable if they were in fact honestly but mistakenly believed.[3]

   [3]     R v Golja [2017] SASCFC 61.

10. As to the search of the car, I accept as honest and reliable the evidence of the police officers who were called on the voir dire as to their observations and suspicions with respect to the accused and as to what they believed was in the Audi. I am satisfied that they had a reasonable suspicion that there were illicit substances in the vehicle. Their evidence was supported by the body worn camera footage. The exercise of the discretion to exclude unlawfully obtained evidence does not arise with respect to the stopping or search of the Audi. I decline to exclude either the evidence of the search or the evidence of things said by the accused once the Audi had been stopped. The potential exclusion of the later record of interview with the accused was not argued and there is no basis on which to exclude it.

11. The application is dismissed.