R v FERGUSON - [2017] SADC 84

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FERGUSON
[2017] SADC 84
Reasons for Ruling of His Honour Judge Barrett
7 August 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Application is made to exclude the discovery by police of ecstasy tablets in the handbag of the accused. The accused was pulled over by police after she drove away from the house of a person suspected of being involved in firearms and drug offences. A police check revealed her car was unregistered. As she drove away she noticed the police following her and appeared to be trying to conceal something on the front passenger seat. Police stopped her car and told her they were going to search it.
Held: The search was not unlawful. Evidence admitted.
Summary Offences Act 1953 s 68; Controlled Substances Act 1984 s 52, referred to.
R v Romeo (1982) 30 SASR 243; R v Nguyen [2016] SASCFC 96; R v Nguyen [2013] 117 SASR 432; R v Marafioti [2014] 118 SASR 511; Bunning v Cross (1978) 141 CLR 54, considered.

R v FERGUSON
[2017] SADC 84

The accused is charged with trafficking in a commercial quantity of a controlled drug known colloquially as Ecstasy. On 14 January 2016 police pulled over the car she was driving in Hackham. They found in her handbag four small bags containing 40 Ecstasy tablets. In all they weighed 9.32 grams. The commercial quantity of Ecstasy is 20 tablets (or DDUs). The maximum penalty for that offence is a fine of $200,000 and/or imprisonment for 25 years.
The accused seeks to have the evidence of the locating of the drugs excluded on the basis that the search which uncovered the drugs was unlawful. More specifically, the police had no power to conduct the search either pursuant to s 68 of the Summary Offences Act or s 52 of the Controlled Substances Act. They did not have the requisite suspicion based on reasonable grounds to entitle them to conduct the search. I am to determine the application on the papers. No evidence was called on the voir dire.
Facts
At about 3.15pm on Thursday 14 January 2016 three police officers were on mobile uniform patrol in Hackham. They noticed the accused’s car parked in the driveway of a premises which they knew to be occupied by a man who was suspected of being involved in illicit drug dealing and firearms offences. There is no suggestion that they knew anything at that stage about the accused or her car. They stopped their police car and kept the car under observation. The accused was sitting alone in the car. A check of the registration revealed that the accused was the registered owner but that the registration had expired in December 2015. The police car followed the accused’s car as it drove away.
Constable Ryan Bretag was driving the police car. He saw the accused look in her rear vision mirror as she was driving along. The accused appeared to notice the police car following her. She began fumbling with something on the front passenger seat of her car. She was sufficiently distracted by what she was doing that as she turned a corner to the left, she veered further left into the gutter of the slip lane. She scraped the kerb with her left tyre or tyres.
Bretag said that at that point he formed the suspicion that the accused was attempting to conceal something from police. She was so engaged in that attempt that she had veered into the kerb. Bretag activated the police lights and stopped the accused’s car.
Constables Bretag and Gary Craggs approached the accused’s car. Bretag spoke to her about what turned out to be her expired driver’s licence and the expired registration of the car. Craggs then told the accused that he intended searching her car. The accused took hold of her handbag and said she needed to take heartburn tablets. Craggs said that as he saw the accused reach into her handbag, he noticed a single clear plastic bag containing tablets. Craggs immediately took possession of the handbag and located the four bags of drugs. Bretag said that as Craggs was searching the accused’s handbag, but before he located the drugs, the accused said to him, that is Bretag, that there were things in the bag that should not be there.
Craggs said that at the point when he told the accused he was going to search her car he was utilising s 68 of the Summary Offences Act. He said he suspected at that point that the accused had possession of something which constituted a criminal offence. He said his suspicion was based upon three factors:
1The accused’s car had been parked in the driveway of an address occupied by someone suspected of being involved in drug and firearms offences.
2When the accused noticed police following her car, she appeared to be trying to conceal something on the front passenger seat.
3When Craggs told the accused that he was going to search her car, she sought to get possession of her handbag from the passenger seat.
Craggs said that from the moment he saw the single bag of tablets he suspected that there were illicit drugs in the handbag. From that point he utilised his powers of search pursuant to s 52(9) of the Controlled Substances Act. The provisions of s 68 of the Summary Offences Act and s 52 of the Controlled Substances Act are as follows:
68—Power to search suspected vehicles, vessels, and persons
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is an object, possession of which constitutes an offence; or
(iii)there is evidence of the commission of an indictable offence;
(b)a person who is reasonably suspected of having, on or about his or her person—
(i)stolen goods; or
(ii)an object, possession of which constitutes an offence; or
(iii)evidence of the commission of an indictable offence.
(2)In this section—
stolen goods includes goods obtained by the commission of an offence.
(emphases added)
52—Power to search, seize etc
(1)Subject to this section, an authorised officer may—
(a)enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and
(b)if reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and
(c)for the purposes of paragraph (a) or (b), require the driver of any vehicle, the master of any vessel or the pilot of any aircraft to stop that vehicle, vessel or aircraft.
(2)While an authorised officer is in or on any premises pursuant to this section, the officer may—
(a)inspect or search the premises or any equipment or other thing on the premises;
(b)require any person to produce any books, papers or documents (including a written record that reproduces, in an understandable form, information stored by computer, microfilm or other process) or any substance, equipment or device;
(c)examine any books, papers or documents (including a written record that reproduces, in an understandable form, information stored by computer, microfilm or other process) and take extracts from any of them or make copies of any of them;
(d)examine any substance, equipment or device;
(e)take and remove from the premises samples of any substance or goods;
(f)carry out any tests;
(g)take any photographs or films or make any audio or audiovisual record;
(h)require the holder of a licence, authority or permit under this Act to produce that licence, authority or permit for inspection;
(i)if the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;
(j)give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer's powers under this Act.
(3)The powers conferred by subsection (1)(b) may only be exercised by an authorised officer who is a police officer.
(4)An authorised officer must not exercise the powers conferred by subsection (1)(a) and (b) except on the authority of a warrant issued by a senior police officer, magistrate or justice, unless the powers are being exercised in relation to—
(a)premises that are used by a registered health practitioner or veterinary surgeon in the ordinary course of his or her profession; or
(b)premises that are used in the course of an activity in respect of which a licence, authority or permit has been granted under this Act; or
(c)premises that are used for a non-residential purpose and in which the authorised officer reasonably suspects poisons, medicines, medical devices or volatile solvents are being stored, used or sold,
provided that the powers are exercised during ordinary business hours.
(5)A senior police officer, magistrate or justice must not issue a warrant under subsection (4) unless satisfied, on information given on oath—
(a)that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and
(b)that a warrant is reasonably required in the circumstances.
(6)An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
(9)If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)detain and search the vehicle, vessel or aircraft; and
(c)seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
(10)Nothing in this section derogates from the power of a police officer to do anything authorised under section 52A or 52B.
(11)A police officer may, in exercising powers pursuant to a warrant issued under subsection (4) or any other powers under this section, use a drug detection dog or an electronic drug detection system.
(emphases added)
Discussion
Bretag had turned on the police warning lights and thereby caused the accused to pull over. I think that amounted to an effective detention of the accused, or at least it was a constructive detention of her. In my view Bretag was entitled to do that. He asserts as his reason for stopping the accused only his suspicion that she was attempting to conceal something from police. Although he refers to the police check which revealed that the registration of the accused’s car had expired, he does not assert that fact as a ground for stopping her car. As Cox J observed in R v Romeo[1]if a police officer has a power to do something it does not matter that he or she fails to identify the power to do so or misidentifies the power.
[1] (1982) 30 SASR 243 at 277.
I find that Bretag had power to stop the accused on two bases:
1The car was unregistered.
2 Having left the driveway of a house whose occupant was suspected of being involved in drug and firearms offences, the accused appeared to be hiding something on the passenger seat of her car after she noticed the police following her.
Having stopped the accused Bretag spoke to her about her car’s expired registration. He was entitled to do that. In so far as the accused may be said to be detained while he did that, that detention was lawful. Craggs was the officer who carried out the search. His state of mind is the critical one but there was nothing unlawful about the accused being stopped or, if it be the case, detained by the police.
The critical time for the formation of the reasonable suspicion contemplated by s 68(1)(a) and (b) of the Summary Offences Act and s 52(6) and (9) of the Controlled Substances Act is the time at which the police officer decides to carry out the search.[2]
[2] R v Nguyen [2016] SASCFC 96 at [24].
In my view that time is the point at which Craggs told the accused that he proposed searching her car. Craggs said that when he told her that she took hold of her handbag saying she needed to take heartburn tablets, but as she did so Craggs saw a single clear plastic bag containing tablets. At that point he said he formed a suspicion that the tablets were illicit drugs and his suspicion was therefore pursuant to s 52(9) of the Controlled Substances Act.
In my view the purported exercise of the power under s 52(9) is irrelevant. It is irrelevant because by the time Craggs saw the tablets he has already told the accused that he proposed searching her car. The prosecution faintly suggested that the critical time for the formation of the suspicion is the point at which the search actually commences. But as I have already indicated the Court in Nguyen[3] makes it clear that the critical time is the formation of the suspicion. As I have also already mentioned it does not matter whether police officers wrongly identify the power they purport to exercise so long as they did in fact have the power to act as they did.
[3] Ibid.
What then of the purported exercise of the power of search of the vehicle pursuant to s 68(1)(b) of the Summary Offences Act? In my view the suspicion that there was in the car an object which constituted an offence (s 68(1)(a)(ii)) or there was in the car evidence of the commission of an indictable offence (s 68(1)(a)(iii)) was one for which there was reasonable cause. Craggs says that three factors gave rise to his suspicion. I find that the third factor he relies on is irrelevant. He said that the third factor was that when he told the accused he was going to search her car she took hold of her bag. In my view that action by her is not capable of being considered when determining the reasonableness of the suspicion. The suspicion had by then been formed. The suspicion led to the announcement of the search.
However I find that the first two factors nominated by Craggs are objectively sufficient to make out the requisite suspicion. They are:
1The accused had just left the driveway of the house of someone suspected of drug and firearms offences, and
2When the accused noticed the police following her (which I have found they were entitled to do) she appeared to be concealing something on the passenger seat.
Neither of these factors on its own would be sufficient. In R v Nguyen[4] the Court found that suspicion attaching to an address visited by a car is not sufficient to found the requisite suspicion to search the car.
[4] [2013] 117 SASR 432 at [23].
In R v Marafioti[5] Kourakis CJ said that a person’s anxiety in the presence of police or behavioural oddities or eccentricities should not be too quickly associated with illegality.
[5] [2014] 118 SASR 511 at [12] and [13].
However on the facts of this case I find that Craggs’ suspicion was sufficient to render lawful his intention to search the accused’s car, including her handbag, pursuant to the Summary Offences Act. What he saw in the bag before he actually searched it merely confirmed his suspicion and focussed the suspicion on the presence of illegal drugs.
If I am wrong about the lawfulness of the search I would exercise my discretion to admit the evidence notwithstanding the illegality. The reasons for that discretionary inclusion are these:
1The offence detected was serious, as evidenced by the maximum penalty.
2The search does not appear to be the result of a deliberate or systematic flouting by the police of restrictions on search powers. There is no suggestion, for example, that the officers were unreasonably keeping the premises the accused left from under surveillance with the object of detaining anyone who frequented it.
3There was undoubted justification for the police stopping the accused’s car. Her car was unregistered. If, contrary to my finding, her actions in relation to her bag once she noticed the police following her were not sufficient to found the requisite reasonable suspicion, then her actions do not fall far short of so doing. Her actions were no mere eccentricities or displays of anxiety. Her attention was directed to her bag as soon as she noticed the police following her. In other words the police action was a small departure from what was required.
These reasons are recognised as relevant to the inclusory discretion in Bunning v Cross.[6]
[6] (1978) 141 CLR 54 at pp 78-80 per Stephen and Aiken JJ.
Finding
I decline to exclude the evidence of the discovery of the drugs in the accused’s possession. The evidence will be admitted.