R v Ghamrawi (No 1)
[2019] SADC 29
•15 March 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GHAMRAWI (NO 1)
Criminal Trial by Judge Alone
[2019] SADC 29
Reasons for Ruling of His Honour Judge Barrett
15 March 2019
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 amphetamines, cash and a knife in the possession of the accused. The accused was questioned and then searched after police were called to a property where there was a report of a domestic disturbance. The search is challenged on the grounds that it was unlawful for the police to detain and question the accused first about the domestic disturbance and then about cash he appeared to be trying to hide and then about a knife he volunteered he had on him.
Held: The search was not unlawful. Evidence admitted.
Summary Offences Act 1953 (SA) ss 68 & 74A; Controlled Substances Act 1984 (SA) s 52, referred to.
Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10; R v Nguyen (2013) 117 SASR 432, considered.
R v GHAMRAWI (NO 1)
[2019] SADC 29
The accused filed a Rule 49 Notice on the 12th of June 2018 seeking the exclusion of evidence obtained from a search by police of his person and belongings on the 17th of July 2017. A voir dire was held before me on the 24th of August 2018. Evidence was given by three of the police who first attended at the property where the accused was located. After addresses by counsel I ruled that the evidence obtained from the search would not be excluded. I now deliver my reasons for that ruling.
Facts
There is little dispute about the facts giving rise to the search. There was produced in court a CCTV disc from the taxi where the accused was sitting when the police arrived and there is a transcript of the conversation which was recorded (VDP1 and MFIP1A respectively). There is body camera footage from two of the police officers who attended and transcripts from those recordings (VDP2 and MFIP2A from Constable David Jowsey and VDP3 and MFIP3A from Senior Constable Stefan Rudevics).
At about 10.24 pm on the 17th of July 2017 police received a report from a member of the public who heard a disturbance at a house in Seacliff as she was walking past. She reported hearing shouting from the house and things being smashed. She heard a male voice. The person knew that a woman and two children lived at the house. She reported being concerned for someone’s welfare (whose welfare is not made clear in the Tasking Note, VDP4). The note recorded the tasking as ‘Code 1’ meaning Priority 1. It was noted as ‘disturbance domestic violence’. This was the only information known by police who went to the address in Seacliff shortly afterwards. Constables Lenka Arndt and David Jowsey were in the first patrol car which arrived. Constable Rudevics was in the second. While there is some uncertainty about who parked where I think the most likely scenario is that the first patrol car pulled up across the road from the driveway of the house and the second car pulled up across the driveway. The positioning of the second car effectively prevented a taxi which was parked in the driveway from reversing out. The taxi driver was standing outside his driver’s door smoking a cigarette when the police arrived. The accused was sitting in the front seat of the taxi. There was no one else visible.
Constables Arndt and Jowsey were the first police officers to approach the accused and speak to him. I will not refer at this stage to which officer said what. The accused was told to get out of the taxi. He complied. The police questioned him about the alleged domestic disturbance. He gave evasive answers. They asked him for identification. He said his identification was in his own car which was parked nearby on the property. He said he would provide his name. He was then told that he had to or he would get locked up. He was told to take his hands out of his pockets. He gave his particulars. There was some further questioning about the disturbance. Jowsey walked away. Arndt then noticed that the accused turned over a folder on the passenger seat of the taxi. She noticed that the folder contained $50 notes. She asked the accused to look at it. He refused. At about this time Constable Rudevics had been approaching the house. He turned back to the taxi when he heard raised voices. Arndt and Rudevics then spoke to the accused about the cash. The accused gave evasive answers. Arndt took possession of the folder. Arndt said that she formed the suspicion that the accused was in possession of the money unlawfully. Rudevics said that he was going to search the accused. He asked the accused whether he had anything sharp on him. The accused said he had a knife. Rudevics questioned him about the knife. The accused refused to answer any further questions. Arndt placed him under arrest for carrying an offensive weapon.
When Rudevics searched the accused he located two phones. He noticed two plastic resealable sandwich bags at the feet of the accused. They appeared to contain equal quantities of crystalline substance which Rudevics suspected of being methylamphetamine. He picked up the bags and put them on the front passenger seat of the taxi. He stepped back to speak to Jowsey. At that point the accused dived head first towards one of the packages and tried to ingest its contents. Police tried to get the substance out of his mouth. The police estimated that he ingested about 10g of the substance. The other bag was untouched and was later found to weigh about 11g. It was methylamphetamine. There was only a small quantity of methylamphetamine left in the bag which the accused had tried to consume. The accused was later taken away by an ambulance to be treated for what was suspected to be a drug overdose.
Application
The accused submits that the search of the accused and his belongings was unlawful on the following bases:-
1The accused was unlawfully detained by one of the police cars parked across the driveway so as to prevent the taxi reversing.
2The accused was unlawfully told to get out of the taxi. There was no power to so direct him.
3The accused was unlawfully detained and questioned about the domestic disturbance.
4The accused was unlawfully misled by being told that he would be locked up if he declined to give his particulars. The request for his particulars was itself unlawful. It was unlawful to require him to provide identification.
5The accused was unlawfully told to take his hands out of his pockets.
6The accused was unlawfully asked to hand over the folder containing the cash. He was unlawfully questioned about the cash.
7The accused was unlawfully searched.
8The unlawfulness of the search taints the questioning of the accused about the knife and his admission that he possessed a knife. That unlawfulness taints his arrest for possession of an offensive weapon.
Discussion
Police do not require statutory authority to ask questions of members of the public (Police v Moukachar (2010) 107 SASR 450 at [13], followed in Bain v Police (2011) 112 SASR 10 at [17]. Plainly the police were not questioning the accused out of idle curiosity. They had been called to investigate what could have been a very serious incident.
In my view the police were entitled to approach the accused and question him about the disturbance and it was effectively a necessary incident of that questioning that they asked, or even directed, the accused to get out of the taxi. The detention of the taxi by the police car is distinguishable from the detention of the car for the purpose of search in the case of R v Nguyen (2013) 117 SASR 432.
The accused did not object to answering questions about the disturbance as he may have been entitled to do but his answers were evasive.
In my view the police were entitled by virtue of s 74A of the Summary Offences Act 1953 (SA) to require the accused to provide his particulars. That section provides:-
74A—Power to require statement of name and other personal details
(1) Where a police officer has reasonable cause to suspect—
(a) that a person has committed, is committing, or is about to commit, an offence; or
(b) that a person may be able to assist in the investigation of an offence or a suspected offence,
the officer may require that person to state all or any of the person's personal details.
(2) Where a police officer has reasonable cause to suspect that a personal detail as stated in response to a requirement under subsection (1) is false, the officer may require the person making the statement to produce evidence of the correctness of the personal detail as stated.
(3) A person who—
(a) refuses or fails, without reasonable excuse, to comply with a requirement under subsection (1) or (2); or
(b) in response to a requirement under subsection (1) or (2)—
(i) states a personal detail that is false; or
(ii) produces false evidence of a personal detail,
is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
(4) A police officer who has required a person to state all or any of the person's personal details under this section is required to comply with a request to identify himself or herself, by—
(a) producing his or her police identification; or
(b) stating orally or in writing his or her surname, rank and identification number.
(5) In this section—
personal details, in relation to a person, means—
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person's business address; and
(f) if the police officer has reasonable cause to suspect that a person has committed, is committing, or is about to commit a sexual offence involving a child or children—the name and address of any place where that person works (whether as an employee, an independent contractor, a volunteer or in any other capacity).
I accept that the police may have exceeded their powers in requiring proof of the accused’s identification. There was no reason to suspect that the accused had given false particulars. However while the accused was asked to provide proof of identification events overtook the production of that identification. That illegality did not in my view taint anything which followed. I think there is force in the defence submission that the accused was somewhat misled when he was told that he would be locked up if he did not provide his particulars (see Bain ibid at [18]). However that remark was made after he had volunteered his particulars, not before. The remark is not strictly misleading. A prison sentence does attach to a refusal without reasonable excuse to provide particulars or to provide false particulars but in the circumstances of this case where the accused had already volunteered his particulars it was heavy handed to make the remark. Nevertheless I find that the police had the power to require particulars and the remark does not taint anything which followed.
The next phase of the incident begins with Constable Arndt noticing the accused turn over the plastic folder containing the cash. The accused challenges the reasonableness of the suspicion that Arndt said she formed about the unlawful provenance of the cash. In my view that challenge is unsustainable. It was not just the cash which excited Arndt’s attention. It was the accused’s attempting to hide the cash. In those circumstances I do not think that Arndt’s suspicion was unreasonable. I find that she was entitled to ask the accused to produce the folder and she was entitled to question him about it. The accused declined to answer further questions. He was entitled to do so but his refusal did nothing to dispel or reduce the police suspicions.
Constable Rudevics then announced that he was going to search the accused. Rudevics was present while the discussion about the cash was going on between the accused and Arndt. Rudevics said in his evidence on the voir dire that the accused’s refusal to answer questions about the cash raised his own suspicions about its provenance.[1] In my view s 68 of the Summary Offences Act 1953 (SA) empowered Rudevics to search the accused. The section reads:-
[1] T81.
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.
In my view s 52(6) of the Controlled Substances Act 1984 (SA) also empowers such a search. That section reads:-
52—Power to search, seize etc
(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.
Rudevics claims to have exercised that power having seen with his torch a plastic tub with duct tape around it and a plastic medication bottle in the footwell of the taxi.
Before beginning the physical search Rudevics asked the accused if he had anything sharp on him. The accused volunteered that he had a knife. The accused declined to answer any questions about the knife. He was entitled to do so but it was not unreasonable for Rudevics to suspect at that point that the accused’s possession of the knife was for an unlawful purpose. In my view that was a reasonable suspicion. Rudevics told the accused that he was being arrested for carrying an offensive weapon. The accused was handcuffed to the rear.
As Rudevics was searching the accused he noticed the two plastic bags of substance at the accused’s feet. He picked them up and put them on the front passenger seat of the taxi. Almost immediately the accused attempted to swallow the contents of one of the bags.
Conclusion
In my view the search of the accused and his belongings was lawful. I have already explained the reasons for finding each step leading to the search was lawful.
If I am wrong about that I find that any unlawfulness is not such as would lead to the exclusion of the evidence so obtained. The police had been called to the property in answer to a report of a domestic disturbance which might, for all they knew, involve the commission of serious crimes. While there were, as I have mentioned, one or two remarks which were somewhat heavy handed, the police were entitled, in fact obliged, to investigate the matter with the accused. Events took unexpected turns but at each turn the police behaved in such a way that makes it appropriate to admit the evidence of the search and the items found as a result.
0
4
1